Filed 5/1/15
                             CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                       DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,
                                                     A138179
v.
RAUL VEGA VEGA,                                      (Sonoma County
                                                     Super. Ct. No. SCR595589)
        Defendant and Appellant.



        A jury returned verdicts convicting defendant Raul Vega Vega of, among other
things, one count of first degree murder (Pen. Code,1 §§ 187, 189) and one count of
voluntary manslaughter (§ 192, subd. (a)), together with two special circumstances
findings and various gang and weapons-related sentence enhancements. The court
imposed a prison term of life without possibility of parole.
        Defendant now appeals, assigning three forms of error. First, he claims
CALCRIM No. 361, which advised the jury it could draw negative inferences if he failed
to explain or deny the evidence against him, is unconstitutional and its use in this case
was not supported by the evidence. Second, he claims his conviction of a substantive
gang participation offense (§ 186.22, subd. (a)) in connection with the manslaughter must
be reversed because he acted alone in committing that crime. Third, he claims the
abstract of judgment must be corrected to accurately reflect the sentences imposed.




        1
            Statutory references, unless otherwise indicated, are to the Penal Code.


                                                1
       We hold there is no constitutional infirmity in CALCRIM No. 361 and we find
adequate support in the record for its use in this case. We further hold, however, that the
conviction on the substantive gang offense related to the manslaughter (count five) must
be reversed based on developments in the applicable law after trial. Accordingly, we
reverse the conviction on count five, order the abstract of judgment corrected, and
otherwise affirm.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       A.     The prosecution’s case
       The crimes at issue here arose out of a rivalry within the Sureños, a street gang
controlled by the Mexican Mafia. An expert for the prosecution testified that, by 2009,
two rival factions of the Sureños had emerged in Santa Rosa, known as Varrio Sureño
Loco (VSL) and Angelino Heights (AH). There was an ongoing turf battle between these
two groups over which of them controlled Southwest Community Park in Santa Rosa.
       The expert identified defendant as a member of the Sureños. Gang members
frequently display gang related tattoos, which they must “earn” by doing something to
benefit the gang, such as committing crimes or supplying weapons. Defendant had “AH”
and “Angelino” tattoos, indicating he was a member of the AH Sureños faction. The
police believed defendant’s gang moniker was “Crime Time.”
              1.      The shooting of Dewey Tucker
       On January 12, 2010, the police came into possession of a letter written by an
imprisoned VSL member calling for the assassination of three senior members of AH
―Hector Barragan (Barragan), his brother Max Barragan, and Miguel Rubio. The letter
suggested that if VSL could get rid of these three “old homies,” AH would be destroyed.
The letter also said Barragan’s close friend, Christopher Mancinas, should be killed.
Mancinas was an influential Sureño who had spent time in prison and had direct ties to
the Mexican Mafia.
       The detective who obtained the letter shared its contents in a general way with
Barragan on the same date he received it. The letter was not news to Barragan; prior
rumors of death threats coming from VSL were known to AH. Barragan and Mancinas


                                             2
called a meeting of AH members at Barragan’s house in Santa Rosa to talk about these
threats. Mancinas did most of the talking.
       Mancinas and Barragan asked defendant―who was 18 years old at the time―to
represent AH in connection with the threats. Defendant agreed. Gang experts testified
that gangs often select young members to carry out violent crimes, both to give them a
chance to “earn their stripes” and to minimize their exposure to punishment (because any
sentences imposed on them will likely be lower than their more hardened gang associates
would receive).
       Mancinas asked defendant to name the person he trusted most to help with the
operation, and he chose Javier Carreon-Lopez, a lifelong friend whom defendant loved
like a brother. On January 12, 2010, defendant, Carreon-Lopez, Barragan and Mancinas
drove to Petaluma, where they retrieved at least three guns (“straps”). They were in a
Chevy Tahoe SUV that Mancinas had borrowed from his sometime girlfriend, who lived
in Rohnert Park.
       The four of them then headed to Vallejo, where a member of VSL named Ramon
Ochoa lived. They were planning to target either Ochoa or another VSL member,
Vincente Tapia, but Ochoa was the “main target.” For defendant, killing Ochoa would
avenge the death of Alejandro Ortega, a member of AH and a friend of defendant’s, who
had been killed by VSL in November 2009.
       In Vallejo, the four met up with two other AH members called “Smokes” and
“Huero,” who lived in Vallejo and had been staking out Ochoa and Tapia on Mancinas’s
instruction. Smokes and Huero had reported back that they knew where one of the VSL
members lived. Mancinas gave defendant a loaded gun, a black or grayish semiautomatic
handgun, either a .40 or .45 caliber.
       When the two AH groups converged in Vallejo they switched cars. From that
point, defendant and Carreon-Lopez were in a Honda that Smokes or Huero had stolen in
Vallejo earlier that day. They drove to Tapia’s apartment building in two cars, with
Carreon-Lopez driving the Honda and defendant in the passenger seat. Barragan and
Mancinas were in the Tahoe along with Smokes and Huero.


                                             3
       Both cars stopped outside Tapia’s apartment complex, where Mancinas pointed
out a white car coming out of the driveway. He phoned defendant and said Ochoa was in
that car and they should follow it. They followed the white car as it left Vallejo and
headed south on Interstate 80. Defendant admitted to police that once he caught up to the
white car on the freeway, he fired at least two shots at the driver, believing it was Ochoa.
       Defendant told police he knew the gunfire struck its intended target because the
driver slumped over in the car. The white car, which had just crossed the Carquinez
Bridge, collided with the center divider, then swerved to the shoulder of the highway.
Defendant and Carreon-Lopez then returned to Santa Rosa, dumping the Honda along the
way. Defendant’s brother sent “some girl” to pick them up. Afterwards, they met up
with Barragan in a park in Santa Rosa.
       Tragically, it turned out, defendant’s shots found the wrong target. What had been
planned as a preemptive revenge killing against a gang rival was a case of mistaken
identity. The gunshot victim was Dewey Tucker, who had the misfortune of living in the
apartment just above Tapia’s. Tucker was a professional musician who was on his way
to practice with his band in Oakland. A bullet entered Tucker’s left ear and exited his
right ear, killing him at the scene.
              2.      The stabbing of Juan Carlos Angel-Esparza
       About a year after Tucker’s murder, on January 8, 2011, Juan Carlos Angel-
Esparza was stabbed to death on the grounds of Kawana Springs Elementary School
(Kawana Springs) in Santa Rosa, which is two or three miles from Southwest Community
Park. Late that afternoon, Angel-Esparza had been hanging out at Kawana Springs,
smoking marijuana and talking about football with his friends Ezequiel Corona and Edgar
Sonato-Vega.2
       Corona and Sonato-Vega, who had no gang affiliation, testified that two men
entered the school grounds from the rear of the school. Angel-Esparza approached them,

       2
        Sonato-Vega is not related to defendant, but both Sonato-Vega and Corona knew
Vega, since they all lived on the same street when they were younger.


                                             4
while Sonato-Vega and Corona hung back, continuing to smoke marijuana. One or both
of the men asked Angel-Esparza where he was from. In gang culture, asking that
question of a suspected gang rival is commonly understood as a verbal provocation, a
challenge to fight. In response, Angel-Esparza said, “VSL.”
       A fight then broke out between Angel-Esparza and one of the two newcomers.
Sonato-Vega told police that defendant was the person with whom Angel-Esparza was
fighting, but at trial he claimed not to know who the other combatant was. At trial
Corona also claimed no knowledge of the other combatant. The evidence at trial was
similarly mixed as to who issued the original provocation—Angel-Esparza; both
defendant and his companion; or just defendant.
       Sonato-Vega testified to seeing Angel-Esparza pull a knife as the fight was
breaking up, but he did not see a knife in defendant’s hands. Corona testified that he did
not see anyone with a knife until after Angel-Esparza and defendant separated, and it
appeared Angel-Esparza was hurt. That is when Angel-Esparza pulled out a Dallas
Cowboys pocket knife and moved toward defendant with it, as defendant backed away.
Toward the end of the fight sirens started blaring. Angel-Esparza and defendant backed
away from one another and ran off in opposite directions.
       Angel-Esparza ran to the front of the school and collapsed in a breezeway, while
defendant and his companion left the area through the rear. Sonato-Vega and Corona
went to Angel-Esparza’s side, and he told them to call an ambulance, so they called 911.
Sonato-Vega took Angel-Esparza’s Cowboys knife and threw it on the roof of the school,
where it was later recovered by the police. Angel-Esparza was taken by ambulance to the
hospital, where he died shortly thereafter from three stab wounds, including one directly
to the heart and one to the liver.
       Before the police arrived, Corona and Sonato-Vega made a plan to say they had
not witnessed the fight and had just found Angel-Esparza lying on the school grounds.
During questioning later that night, however, Corona eventually admitted to the police
that he had heard gang challenges to Angel-Esparza before the fight, had heard Angel-
Esparza claim “VSL,” and had seen the fight.


                                             5
       At one point, while they were at the police station, Corona and Sonato-Vega were
placed in a room alone together, where they were video recorded. Sonato-Vega asked
Corona, “Did you tell them it was Raul?” This was the break in the case that first alerted
police to defendant’s involvement, as one of the officers was familiar with defendant and
his gang affiliation.
       Police investigating the stabbing found two knives in the vicinity—one was a
pocket knife with a locking blade and a Dallas Cowboys logo on it, which belonged to
Angel-Esparza and was found on the roof of the school. It was covered in blood, which
proved to be Angel-Esparza’s. Angel-Esparza’s thumbprint was also found on the knife,
but defendant’s prints were not. A second knife located at the scene was a blade without
a handle, which had no blood on it.3 There was a small amount of blood on the pathway
near where the fight had occurred, and it proved to be defendant’s.
              3.        Defendant’s incriminating statements to police
       When defendant was questioned by the police two days after Angel-Esparza’s
death, he initially denied involvement, but eventually admitted fighting with Angel-
Esparza. He claimed the killing was in self-defense because Angel-Esparza pulled a
knife. Defendant said he took the knife from Angel-Esparza, but Angel-Esparza had
another one. Angel-Esparza said he was a member of VSL, and defendant believed
Angel-Esparza attacked him because of defendant’s AH affiliation.
       Defendant claimed that when Angel-Esparza attacked him, he suffered a cut to the
face and thought he was going to be killed, but he managed to wrestle the knife away
from Angel-Esparza and push it towards him, evidently sticking him with it. Defendant
admitted a friend was with him at Kawana Springs that day, but he did not give the police
the friend’s name. He did not implicate his friend in the fight and told them his friend “is
not a banger.”


       3
         The prosecutor theorized at trial that neither of the knives found at the scene was
the one that killed Angel-Esparza. He suggested to the jury that defendant had brought
his own knife to the school grounds and may have been the first to draw a weapon.


                                              6
       After Vega finished his interview with the Santa Rosa police, representatives of
the Sonoma County Sheriff’s Office and the California Highway Patrol interviewed him
about the Tucker murder. It was during this interview that defendant made statements
placing himself at the scene of the shooting and admitting to having been the triggerman.
Among other things, he also described himself as a “killer”, and claimed to have “stabbed
a lot of people” before. He showed police a tattoo of a left-handed gunman.4 He said he
had earned it by killing Tucker.
       In addition, defendant made a number of damaging admissions concerning his cell
phone. On the date of Tucker’s murder, 12 calls were made between Vega’s phone and a
cell phone used by Mancinas. The phone the police associated with defendant had been
purchased in the name “Crime Time.” Vega confirmed during his police interview that
the phone was his. He further admitted he and Mancinas were phoning back and forth to
each other during the events surrounding the killing.
       Cell phone evidence at trial showed that Mancinas’s cell phone was in Petaluma,
where he lived, until 6:23 p.m. on January 12, 2010. At 6:24 p.m. Mancinas’s phone
traveled north on Highway 101 and was in Rohnert Park, where Mancinas’s girlfriend
lived, at 6:36 p.m. At 7:53 p.m. his phone was on the south end of Santa Rosa, and at
8:43 p.m. it was in Vallejo.
       At 9:18 and 9:36 p.m. the phone was traveling further east in Vallejo, toward
Tapia’s apartment complex. Two calls were made in the vicinity of the apartments. At
9:49 the phone was moving south along Interstate 80, and at 9:51 it crossed the Carquinez
Bridge. Near the place where Tucker’s car had come to rest, Mancinas’s phone crossed
paths with defendant’s phone. At 9:54 p.m., the phone was headed in the opposite
direction, back over the Carquinez Bridge, through Vallejo and back to Petaluma by
10:45 p.m. At 10:59 p.m. his phone was back in Rohnert Park. Mancinas’s girlfriend
confirmed that Mancinas had borrowed her Tahoe that night, as he sometimes did for
gang “business,” and he returned it about 10:00 or 11:00 p.m.

       4
           Vega is left-handed.


                                            7
       In May 2010, police searched an apartment occupied by suspected members of the
Sureños and found a .40-caliber handgun. Two shell casings recovered at the scene of
Tucker’s killing were determined to have been fired from that handgun. An expert
testified that gangs often have “gang guns” which they pass from one member to another
and use for self-defense or to commit crimes for the gang.
       B.     Defendant’s trial testimony
       At trial, defendant’s version of the events surrounding the stabbing of Angel-
Esparza closely tracked the version he gave the police. Things began when he and a
friend, Giovanni, went to Kawana Springs to hang out. As he and Giovanni entered the
school from the rear, they saw three or four other people on the school grounds.
Defendant recognized Corona and Sonato-Vega, each of whom he had known from
growing up in the same neighborhood.
       Defendant testified that he and Giovanni had gone to Kawana Springs to unwind
after he got off work. They had not seen each other in three to six months and were
looking forward to catching up. He did not tell the police Giovanni’s name because he
did not want to get him in trouble or get him deported. After he and Giovanni arrived at
Kawana Springs, Angel-Esparza approached him and asked where he was from, whether
he was a “northerner,” and whether he was “AH.” Angel-Esparza said he was “VSL.”
       Although he knew Kawana Springs was a place frequented by gang members
where fights often occurred, defendant denied having a knife when he went to Kawana
Springs. After Angel-Esparza approached him and provoked the confrontation, he and
Angel-Esparza began fighting, at first only with fists. Defendant did not remember who
threw the first punch. At first defendant did not see any weapons in Angel-Esparza’s
hands. Angel-Esparza kicked defendant in the groin and he fell to his knees. At that
point he saw a knife in Angel-Esparza’s hand and tried to block it, but Angel-Esparza cut
defendant’s lip with it.
       Fearing he would be stabbed in the face or head, defendant wrestled the knife
away from Angel-Esparza, pushed it toward Angel-Esparza, and the knife blade broke.
Angel-Esparza then pulled out a second knife, a pocket knife. Defendant testified he


                                            8
backed away, but Angel-Esparza kept coming at him with the second knife. Although
defendant claimed he did not know that Angel-Esparza had been stabbed, he saw Angel-
Esparza grab his chest, bend over, and run toward the front of the school. He and
Giovanni ran the other way.
       Defendant’s handling of the Tucker murder in his trial testimony, by contrast,
diverged sharply from what he told the police. Defendant testified he did not kill Tucker
and knew nothing about the killing. He said he had never owned a gun and had not
owned a cell phone until long after the Tucker murder. He denied going by the name
“Crime Time,” claiming his nicknames were “Chonga” and “Crime.”
       Defendant denied being in Vallejo in January 2010. He testified he did not
personally know Barragan or Mancinas, although he had heard of them. He claimed that
whatever details he provided to the police during his interview about the Tucker killing
reflected simply what he had learned from them during the interview. Defendant said his
statement to the police had been aimed at telling them “what they wanted to hear” and
whatever “sounded good.”
       On cross-examination defendant admitted he initially lied to the police in claiming
he knew nothing about the death of Angel-Esparza. He admitted his tattoos were “gang
tattoos,” that he was a member of AH, that he had been involved with gangs since he was
12 or 13 years old, and that he was proud to be a member of AH.
       C.     Procedural history
       Defendant was charged with two counts of murder (§ 187), one count of
discharging a firearm at an inhabited vehicle (§ 246) in connection with Tucker’s death,
and two counts of active participation in a criminal street gang on the dates of the two
murders (§ 186.22, subd. (a)). With respect to the Tucker murder and the section 246
offense, the fourth amended information also alleged enhancements based on firearm use,
discharge, and discharge causing great bodily injury or death (§ 12022.53, subds. (b), (c),
(d) & (e)(1)), along with gang enhancements (§ 186.22, subd. (b)(1)(C) & (b)(4) ), and
with respect to the murder, two special circumstance allegations: gang-related murder
(§ 190.2, subd. (a)(22)) and murder by discharge of a firearm from a motor vehicle


                                             9
(§ 190.2, subd. (a)(21)). On the Angel-Esparza killing, the charges included a gang
enhancement (§ 186.22, subd. (b)(1)(C)) and an enhancement for personal use of a deadly
weapon (knife) (§ 12022, subd. (b)(1)).
       The case went to the jury on October 15, 2012. In addition to instruction on the
charged offenses, the jury was instructed on perfect and imperfect self-defense and heat
of passion voluntary manslaughter. The jury deliberated more than 30 hours over eight
days before reaching its verdicts. It convicted defendant of first degree murder of Tucker
(count one) and voluntary manslaughter for the death of Angel-Esparza (count three). It
also convicted him of shooting at an occupied vehicle (count two) and two counts of gang
participation (counts four and five). It further found true all of the alleged enhancements
and special circumstances, except it deadlocked on the gang enhancement on the killing
of Angel-Esparza.
       On March 11, 2013, in light of the special circumstance findings, the court
sentenced defendant to life in prison without possibility of parole for the murder of
Tucker (count one) (§§ 187, 190.2, subd. (a)), with a 25-to-life consecutive term for
firearm discharge causing great bodily injury or death (§ 12022.53, subd. (d)), plus a
sentence of life with the possibility of parole for shooting at an occupied vehicle, with all
punishment on count two stayed under section 654. The court stayed the remaining gang
and firearm enhancements. It further sentenced defendant to 12 years for the voluntary
manslaughter of Angel-Esparza (count three) (including the related weapon
enhancement). (§§ 192, subd. (a), 12022, subd. (b)(1).) It sentenced defendant to three
years (concurrent) on each of the substantive gang participation offenses (counts four and
five) (§ 186.22, subd.(a)) and stayed those terms under section 654.
       This timely appeal followed.
                                      II. DISCUSSION
       A.     CALCRIM No. 361 is not unconstitutional and was properly given in this
              case.

       Defendant’s first claim on appeal is that the court erred in giving the jury
CALCRIM No. 361, which told them: “If the defendant failed in his testimony to explain


                                             10
or deny evidence against him, and if he could reasonably be expected to have done so
based on what he knew, you may consider his failure to explain or deny in evaluating that
evidence. Any such failure is not enough by itself to prove guilt. The People must still
prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to
explain or deny, it is up to you to decide the meaning and importance of that failure.”
       Defense counsel did not object to the instruction, and in fact, agreed it should be
given if defendant testified. The Attorney General therefore contends any claim of
instructional error was forfeited. Generally, failure to object does not waive an
instructional error on appeal if the instruction was an incorrect statement of law or the
defendant’s substantial rights were affected. (§ 1259; People v. Fiore (2014) 227
Cal.App.4th 1362, 1377–1378.) The invited error doctrine likewise poses no obstacle to
raising a claim of instructional error on appeal, unless there was a conscious, deliberate or
tactical reason stated for the appellant’s acquiescence in the instruction at trial. (People
v. Hernandez (1988) 47 Cal.3d 315, 353; People v. Collins (1992) 10 Cal.App.4th 690,
694–695.)
       We ultimately conclude the claimed error could not have been prejudicial on
counts one and two due to the strength of the evidence, and was not prejudicial as to
count three due to the conviction of a lesser offense on that charge. Nevertheless, we
address the merits of defendant’s attack on CALCRIM No. 361 because he claims it
incorrectly states the law, and in order to forestall a future claim of ineffective assistance
of counsel. (People v. Fiore, supra, 227 Cal.App.4th at pp 1377–1378 & fn. 10.) We
employ de novo review for a claim of instructional error of this nature. (People v. Posey
(2004) 32 Cal.4th 193, 218; People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066.)
              1.     Constitutionality
       In addressing the constitutionality of CALCRIM No. 361, we do not write on a
clean slate. In People v. Saddler (1979) 24 Cal.3d 671, 675, 678–681 (Saddler), our
Supreme Court upheld the constitutionality of CALJIC No. 2.62, a pattern instruction




                                              11
similar in substance to CALCRIM No. 361.5 More recently, in People v. Rodriguez,
supra, 170 Cal.App.4th at pp. 1067-1068 (Rodriguez), Division Four of the Second
District Court of Appeal rejected a constitutional challenge to CALCRIM No. 361.
Defendant advances arguments similar to those made and rejected in Saddler and
virtually identical to those made and rejected in Rodriguez. He asks us to depart from the
path taken in those cases, but we decline to do so.
       CALCRIM No. 361 rests on the logical inference that if a person charged with a
crime is given the opportunity to explain or deny evidence against him but fails to do so
(or gives an implausible explanation), then that evidence may be entitled to added
weight. The defendant in Saddler argued that CALJIC No. 2.62 compromised his
privilege against self-incrimination. (Saddler, supra, 24 Cal.3d at p. 678.) In this case,
defendant claims it violated his right to testify, citing People v. Gutierrez (2009) 45
Cal.4th 789, 821, and his right to a fair trial, citing Duncan v. Louisiana (1968) 391 U.S.
145, 148–149 [right to jury trial]. Using these bedrock procedural protections as a
foundation, defendant builds an argument that it was fundamentally unfair to tell jurors
they could draw reasonable factual inferences against him based on unsatisfactory and
implausible answers to questions during his testimony.
       We see no inconsistency between defendant’s right to testify and the attendant risk
of being confronted with evidence calling into question his testimony. The failure to

       5
          CALJIC No. 2.62 reads as follows: “In this case defendant has testified to
certain matters. [¶] “If you find that [a] [the] defendant failed to explain or deny any
evidence against [him] [her] introduced by the prosecution which [he] [she] can
reasonably be expected to deny or explain because of facts within [his] [her] knowledge,
you may take that failure into consideration as tending to indicate the truth of this
evidence and as indicating that among the inferences that may reasonably be drawn
therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a
defendant to deny or explain evidence against [him] [her] does not, by itself, warrant an
inference of guilt, nor does it relieve the prosecution of its burden of proving every
essential element of the crime and the guilt of the defendant beyond a reasonable doubt.
[¶] If a defendant does not have the knowledge that [he] [she] would need to deny or to
explain evidence against [him,] [her,] it would be unreasonable to draw an inference
unfavorable to [him] [her] because of [his] [her] failure to deny or explain this evidence.”


                                             12
explain or deny adverse evidence can be a basis for disbelieving any witness’s testimony
and is always relevant to credibility. (See CALCRIM No. 226 [factors jury may consider
in evaluating witnesses’ testimony include: “Did the witness make a statement in the past
that is consistent or inconsistent with his or her testimony? [¶] How reasonable is the
testimony when you consider all the other evidence in the case? [¶] [Did other evidence
prove or disprove any fact about which the witness testified?]”].) In that sense,
CALCRIM No. 361 represents nothing more than a specific application of a general rule
applicable to all witnesses.
       Saddler referred to CALJIC No. 2.62 as “the comment rule,” which, prior to the
Supreme Court’s decision in Griffin v. California (1965) 380 U.S. 609 (Griffin),
historically allowed the trial judge to comment on a defendant’s failure to explain or deny
incriminating evidence. (Saddler, supra, 24 Cal.3d at p. 680.) For many years, the
“comment rule” was codified in former Article I, section 13 of the California
Constitution. (Id. at p. 678 & fn. 5.) Griffin found a Fifth Amendment violation where,
pursuant to Article I, section 13 as it then stood, a jury was instructed it may consider,
and the prosecutor commented upon, the defendant’s failure to testify.6 (Griffin, supra,
380 U.S. at pp. 612-615.)
       Former Article I, section 13 was repealed in 1974 and its text restated in Article I,
section 15, with no reference to the comment rule. However, the rule survives today in
section 1127, which provides in part that the trial court, in instructing the jury, “may
make such comment on the evidence and the testimony and credibility of any witness as
in its opinion is necessary for the proper determination of the case and in any criminal
case, whether the defendant testifies or not, his failure to explain or to deny by his

       6
          The instruction given by the court in Griffin was as follows: “As to any evidence
or facts against him which the defendant can reasonably be expected to deny or explain
because of facts within his knowledge, if he does not testify or if, though he does testify,
he fails to deny or explain such evidence, the jury may take that failure into consideration
as tending to indicate the truth of such evidence and as indicating that among the
inferences that may be reasonably drawn therefrom those unfavorable to the defendant
are the more probable.” (Griffin, supra, 380 U.S. at p. 610.)


                                             13
testimony any evidence or facts in the case against him may be commented upon by the
court.” (See also Evid. Code, § 413 [trier of fact may consider any “party’s failure to
explain or to deny by his testimony such evidence or facts in the case against him”].) To
the extent the language of section 1127 can be read to allow judicial comment when a
defendant declines to testify, its validity is not before us. But when a defendant does
testify, all bets are off. He waives his Fifth Amendment privilege (Saddler, supra, 24
Cal.3d at p. 679) and is subject to cross-examination just as any other witness is. (People
v. Wagner (1975) 13 Cal.3d 612, 618; People v. Zerillo (1950) 36 Cal.2d 222, 227-229.)
       Defendant relies in part on a case critical of CALJIC No. 2.62, People v. Haynes
(1983) 148 Cal.App.3d 1117, 1119-1120 (Haynes), in which the court suggested it would
be “unwise” to give CALJIC No. 2.62 without inquiring as to the position of the parties
(which the trial court did here), and said it should only be used if the defendant’s
testimony included significant omissions or failure to explain or deny. (Id. at
pp. 1119-1120.) As we will discuss further, the Haynes prerequisites existed in this case.
       The criticism expressed in Haynes―and its proposed limitations on the
instruction’s use―have been taken to heart in subsequent cases. CALCRIM No. 361 is
not to be given every time a defendant testifies. Rather, the courts long ago imposed
limits on the circumstances under which CALJIC No. 2.62 may be given, and the Bench
Notes to CALCRIM No. 361 indicate the same restrictions apply in using CALCRIM
No. 361. (CALCRIM No. 361 (2015) Bench Notes, pp. 168-169.) “If a defendant has
not been asked an appropriate question calling for either an explanation or denial, the
instruction cannot be given, as a matter of law.” (People v. Roehler (1985) 167
Cal.App.3d 353, 392 [CALJIC No. 2.62]; accord, People v. Mask (1986) 188 Cal.App.3d
450, 455 [CALJIC No. 2.62].)
       When a defendant testifies, however, and “fails to deny or explain inculpatory
evidence or gives a ‘bizarre or implausible’ explanation, the instruction is proper.”
(People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029–1031 [CALJIC No. 2.62]; accord,
People v. Mask, supra, 188 Cal.App.3d at p. 455 [CALJIC No. 2.62 is warranted “if the
defendant tenders an explanation which, while superficially accounting for his activities,


                                             14
nevertheless seems bizarre or implausible”]; People v. Belmontes (1988) 45 Cal.3d 744,
784, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;
People v. Roehler, supra, 167 Cal.App.3d at p. 393.)
       In an effort to persuade us that this case should not be governed by the legal
framework established in Saddler and Rodriguez, defendant adds the twist that the
existence of CALCRIM No. 361 and its possible use at trial could have a “chilling effect”
on defendants generally and dissuade them from testifying. The idea that a “chilling
effect” on others not before the court should be taken into account in constitutional
adjudication is familiar from First Amendment overbreadth and vagueness doctrines (see,
e.g., People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1114; Concerned Dog
Owners of California v. City of Los Angeles (2011) 194 Cal.App.4th 1219, 1230-1232), a
setting where questions often arise about whether those whose voices are potentially
stifled by overbroad or vague regulation of free expression will be motivated to bring
constitutional challenges. But that mode of analysis seems a poor fit here.
       Even assuming an undue “chilling effect” on the procedural rights of criminal
defendants generally may properly be raised as a basis for challenging a jury instruction
(see People v. Beyah (2009) 170 Cal.App.4th 1241, 1248–1250), we think it unlikely that
CALCRIM No. 361 would have that effect beyond the ever-present prospect of facing
cross examination. It certainly did not have that effect here. The jury instructions in this
case were settled before defendant took the stand. Thus, defendant testified at length
despite the knowledge in advance that he would face this instruction, and his counsel
acquiesced.
       Defendant further contends the giving of CALCRIM No. 361 violated his due
process rights by depriving him of a fundamentally fair trial. (U.S. Const., amends. V,
XIV.) In this thread of his argument, defendant characterizes CALCRIM No. 361 as a
pinpoint instruction that singled him out for treatment different from that of other
witnesses. (See People v. Harris (1989) 47 Cal.3d 1047, 1099 [improper for court to
“single out a particular witness in an instruction”].) The unfair “singling out” complaint



                                             15
advanced by defendant was rejected in Saddler, supra, 24 Cal.3d at pages 680-681, and
Rodriguez, supra, 170 Cal.App.4th at page 1067, and we likewise reject it here.
       The response to that argument can be traced to Caminetti v. United States (1917)
242 U.S. 470, 493 (Caminetti), where the United States Supreme Court said that an
accused who takes the stand “subjects himself to the same rule as that applying to any
other witness.” The court explained that “where the accused takes the stand in his own
behalf and voluntarily testifies for himself . . . he may not stop short in his testimony by
omitting and failing to explain incriminating circumstances and events already in
evidence, in which he participated and concerning which he is fully informed, without
subjecting his silence to the inferences to be naturally drawn from it.” (Id. at p. 494.)
       As our Supreme Court noted more recently in Saddler—specifically addressing
the identical issue raised here—“Defendant . . . argues that the challenged instruction
should never be given because it impermissibly singles out a defendant’s testimony and
unduly focuses upon it. The same argument was rejected in People v. Mayberry [(1975)]
15 Cal.3d 143, 161. We noted there that the instruction was consistent with Evidence
Code 413, which permits the drawing of inferences from any party’s failure to explain or
deny evidence against him. Since the only testifying ‘party’ in a criminal case is the
defendant, the code section can have reference only to him.” (Saddler, supra, 24 Cal.3d
at pp. 680-681.)
       To avoid the “singling out” problem, defendant suggests that CALCRIM No. 226,
which specifies certain matters the jury may consider in determining the credibility of
witnesses, should be amended to reflect the same substance currently conveyed in
CALCRIM No. 361, and CALCRIM No. 361 itself should be jettisoned. In addition, he
criticizes Saddler, supra, 24 Cal.3d at pages 680-681 and Rodriguez, supra, 170
Cal.App.4th at pages 1067-1068, because those cases rest in part on Evidence Code
section 413, which allows the fact finder to draw adverse inferences from the failure of a
party to explain or deny evidence against the party. Defendant argues that however
useful Evidence Code section 413 may be in civil cases, it has no place in criminal trials.



                                             16
       These arguments are more appropriately pitched to the Legislature and the Judicial
Council. We decline the invitation to engage in wholesale revision of the CALCRIM
instructions and selective disabling of the Evidence Code in criminal cases just to avoid a
hypothetical “chilling effect” on other defendants. CALCRIM No. 361, we hold, is not
unconstitutional.
              2.     There was an evidentiary foundation for giving CALCRIM
                     No. 361.

       Although Saddler held there was no constitutional or other infirmity in CALJIC
No. 2.62, it also held the instruction was improperly given at Saddler’s trial because there
was no failure by Saddler―who presented an alibi defense―to explain or deny the other
evidence at trial. (Saddler, supra, 24 Cal.3d at pp. 681-683.)
       The same cannot be said here. Defendant confessed to murdering Tucker when
questioned by the police but then claimed at trial he was entirely innocent. This was
obviously something he needed to explain to the jury, and he tried. He said he already
was in custody for the separate killing of Angel-Esparza and had left blood at Kawana
Springs, where he and Angel-Esparza had fought. He claimed he knew he “wasn’t going
anywhere” but to jail, and the detectives wanted him to be a “badass.” Under these
circumstances, defendant claimed, he thought he might as well confess to Tucker’s
murder. It was not a “very serious matter,” he said. This dismissive attempt to explain
his earlier confession was implausible and, in and of itself, warranted the giving of
CALCRIM No. 361.
       More specifically, defendant acknowledged to the police that the cell phone
registered to Crime Time was his “old number” when he was interviewed in January
2011. Yet at trial he claimed he neither owned a cell phone in January 2010 nor went by
the name “Crime Time”, an implausible denial in light of his own prior admission. And,
of course, defendant failed to explain why he had 12 phone calls in one day with
Mancinas, someone he had heard of (according to his trial testimony) but did not
personally know.



                                            17
       During his police interview, defendant also implicated in the Tucker murder high-
ranking AH gang members, as well as Carreon-Lopez, whom he loved like a brother.
Though he tried to explain why he incriminated himself, he never explained why he was
willing to implicate senior members of AH or his best friend, given that “snitching” on
the leadership of his own gang or being a “rat” could have led to retaliation by the gang.
       Because defendant’s explanations for the evidence against him were implausible,
the record supports the giving of CALCRIM No. 361. (People v. Sanchez, supra, 24
Cal.App.4th at p. 1030.) On this record, the inference that defendant was lying about the
Tucker murder on the stand was practically inescapable, making it fully appropriate to
advise the jury that they may—not must—give his earlier confession heightened
credibility under CALCRIM No. 361.
              3.     Harmless error analysis
       Defendant contends CALCRIM No. 361 was not only improperly given to the
jury, but was prejudicial as to counts one and two. He does not seem to argue it was
prejudicial as to count three. Nor could he support such an argument, given that he was
acquitted of murder and succeeded in obtaining a voluntary manslaughter conviction for
the killing of Angel-Esparza.
       The parties disagree about the appropriate standard of prejudice. Defendant insists
that a Chapman standard is called for (see Chapman v. California (1967) 386 U.S. 18,
24) , while the Attorney General points out that Saddler and other cases have employed
the Watson standard, (see People v. Watson (1956) 46 Cal. 2d 818, 836). (See also
Saddler, supra, 24 Cal.3d at p. 683; People v. Roehler, supra, 167 Cal.App.3d at p. 393
[courts have “rather uniformly” applied Watson].) Under either standard, even assuming
there was error, it was harmless on counts one and two due to the overwhelming evidence
against defendant, most notably his own confession.




                                            18
       What occurred here bears none of the indicia of a “false confession” case.7 There
was plenty of detail in the narrative defendant gave police to corroborate its reliability.
Defendant knew more about the offense than the police had told him, and many of those
details were confirmed by other evidence. For instance, he knew that Mancinas had
borrowed a Chevy Tahoe from “some girl” on the night in question, which Mancinas’s
girlfriend confirmed. He knew the Honda used in the shooting had been stolen in
Vallejo, which the owner confirmed. He knew the approximate caliber of the weapon
used, which ballistics confirmed.
       There was also evidence independent of the confession linking defendant to the
crime scene. The route defendant described traveling with his crime partners matched the
route traveled by Mancinas’s cell phone, as shown by cell phone records. He and
Mancinas were in separate cars, and the cell phone “map” showing their movements at
the time of the shooting had the two of them converging precisely at the location of the
shooting. Then there was the number of calls he made and who he spoke to by phone in
the time just before and after the murder. Defendant failed to explain why he and
Mancinas―a man defendant claimed he had heard of but did not personally
know―traded 12 phone calls on the night of Tucker’s murder.
       The investigative technique most often recommended as a best-practices safeguard
against false confessions—recording of custodial interrogations8—was followed in this

       7
          See Leo and Ofshe, Criminal Law: The Consequences of False Confessions:
Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological
Interrogation (1998) 88 J. Crim. L. & Criminology 429, 436 [frequently cited study of 60
false confession cases, all of which “satisf[ied] the following conditions: no physical or
other significant and credible evidence indicated the suspect’s guilt; the state’s evidence
consisted of little or nothing more than the suspect’s statement ‘I did it;’ and the suspect’s
factual innocence was supported by a variable amount of evidence—often substantial and
compelling—including exculpatory evidence from the suspect’s post-admission narrative.
For every case included . . . there was no credible evidence corroborating the defendant’s
‘I did it’ admission or supporting the conclusion that he was guilty.” (Fns. omitted.)]
        8
          See California Commission on the Fair Administration of Justice, Report and
Recommendations Regarding False Confessions (July 25, 2006) at
<http://www.ccfaj.org/rr-false-official.html> [as of April 29, 2015].


                                             19
case, and the recording of defendant’s confession, on video, was provided to the jury. If
there was some kind of coercion or psychological dynamic explaining why defendant
might falsely implicate himself in Tucker’s murder, it was there in the record for him to
argue. But he never did, and he makes no real effort to do so now. Defendant essentially
suggests that once he realized he was likely going to prison for the killing of Angel-
Esparza, his confession to the Tucker murder (and several other acts of violence) was
driven by machismo. The problem with this portrayal of why he confessed is that it does
not necessarily mean the confession was false. Defendant may well have incriminated
himself out of machismo, but the jury clearly believed it was also true he shot Tucker.
       The jury having watched defendant’s video-taped confession, little could have
been said (or left unsaid) to dilute its impact on them. To be sure, even with firsthand
evidence of defendant’s violent proclivities put graphically before them, the jury did not
simply label him a violent man and a liar and convict him of all charges. Instead, it
deliberated for more than 30 hours to arrive at a split verdict, which suggests it believed
his testimony about the death of Angel-Esparza up to a point. His complete denial of
knowledge of the Tucker murder, however, appears to have been a bridge too far. He
admittedly knew too much about the crime to have any credibility in denying all
involvement.
       Finally, we evaluate the impact of CALCRIM No. 361 in the context of the
instructions as a whole, starting with the carefully constructed internal balance to No. 361
itself. CALCRIM No. 361 does not direct the jury to draw an adverse inference. It
instructs the jury that failure to explain or deny alone is not a sufficient basis upon which
to infer guilt, and it highlights the prosecution’s burden to prove guilt beyond a
reasonable doubt. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1472-1473; People v.
Ballard (1991) 1 Cal.App.4th 752, 756-757.) Ultimately, the instruction leaves the
“meaning and importance” of the failure to explain or deny in the jurors’ hands.
(CALCRIM No. 361.) It is also notable that the trial court told the jury here that not all
the instructions were necessarily applicable (CALCRIM No. 200), and advised jurors to
follow the instructions that applied to the facts determined by them, thereby “mitigat[ing]


                                             20
any prejudicial effect” related to the giving of CALCRIM No. 361, if it were deemed to
be improper. (People v. Lamer, supra, at p. 1472, see also Saddler, supra, 24 Cal.3d at
p. 684.)
       Even assuming error in the giving of CALCRIM No. 361, the error was harmless
on this record. Given the strength of the evidence against defendant on counts one, two
and three, we cannot imagine this jury would have entertained any reasonable doubt
about his guilt on any of those counts even if CALCRIM No. 361 had not been given.
       B.     The conviction of a gang participation offense related to the killing of
              Angel-Esparza must be reversed under People v. Rodriguez (2012) 55
              Cal.4th 1125.

       Defendant contends his conviction for the substantive gang participation offense in
violation of section 186.22, subdivision (a), related to the killing of Angel-Esparza must
be reversed because the evidence established that he acted alone, not in concert with
other gang members.9 Defendant’s argument rests on People v. Rodriguez (2012) 55
Cal.4th 1125, which held that a substantive gang offense under section 186.22,
subdivision (a), requires the participation of at least two members of the same gang in
felonious conduct. He contends the evidence was insufficient under People v. Rodriguez
because it did not establish that Giovanni (1) was an AH gang member or (2) participated
in the fight. We agree.
       The Attorney General argues the evidence was sufficient because it showed that
Giovanni participated with defendant in issuing gang challenges, and hence, “more than
one gang member was involved in the fight.” The Attorney General seems to suggest
that by making gang challenges, remaining present during the fight, and encouraging
defendant to escalate the confrontation, Giovanni aided and abetted a felony assault. (See

       9
         Section 186.22, subdivision (a) provides: “Any person who actively participates
in any criminal street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in
any felonious criminal conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one year, or by imprisonment in
the state prison for 16 months, or two or three years.”


                                            21
People v. Ayala (2010) 181 Cal.App.4th 1440, 1451-1453.) Thus, she argues,
“Giovanni’s presence and support made it more likely that appellant would participate in
the gang-challenge fight and made it easier for him to do so knowing that he had
backup.”
       Though thin, we might find substantial evidence for the jury’s conviction on count
five had it been instructed on the necessity of finding felonious criminal participation by
more than one gang member. Since the jury was not so instructed, however, we question
whether the jury ever, in fact, made the required finding when we evaluate the record in
light of recent developments in the applicable law that have occurred since the trial.
       “The substantive offense defined in section 186.22(a) has three elements. Active
participation in a criminal street gang, in the sense of participation that is more than
nominal or passive, is the first element . . . . The second element is ‘knowledge that [the
gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and
the third element is that the person ‘willfully promotes, furthers, or assists in any
felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas
(2007) 42 Cal.4th 516, 523.)
       In People v. Rodriguez, supra, 55 Cal.4th 1125, 1131–1139, the California
Supreme Court held the third element is not satisfied when a gang member commits a
felony while acting alone. (Id. at pp. 1131-1139.) The word “members,” it explained, “is
a plural noun.” (Id. at p. 1132.) “Therefore, to satisfy the third element, a defendant
must willfully advance, encourage, contribute to, or help members of his gang commit
felonious criminal conduct. The plain meaning of section 186.22 (a) requires that
felonious criminal conduct be committed by at least two gang members, one of whom
can include the defendant if he is a gang member.” (Ibid.) The Supreme Court
interpreted the statute to require that one of the people who engaged in the felonious
conduct (in addition to defendant) must have belonged to the same gang in which
defendant is an active participant (AH). (Id. at p. 1131; accord, People v. Velasco (2015)
235 Cal.App.4th 66, 78.)



                                              22
       Thus, for the jury to have convicted defendant on count five, it would have had to
find that he “willfully promote[d], further[ed], or assist[ed] in . . . felonious criminal
conduct by” Giovanni. In addition, it would have had to find that Giovanni was a fellow
AH gang member. Whether Giovanni’s role in the confrontation with Angel-Esparza met
either of these conditions was subject to serious doubt.
       People v. Rodriguez was decided two months after the verdicts in this case were
rendered. Regardless whether People v. Rodriguez announced a new restriction on
criminal liability under section 186.22, subdivision (a), or merely clarified an existing
rule, defendant’s conviction was not final when People v. Rodriguez was decided and he
is entitled to the benefit of that decision.10 (In re Borlik (2011) 194 Cal.App.4th 30, 40-
41 (Borlik).)
       Significantly, following the decision in People v. Rodriguez, CALCRIM No.
1400, which defines the substantive crime under section 186.22, subdivision (a), was
amended to add the following language: “At least two gang members of that same gang
must have participated in committing the felony offense. The defendant may count as one
of those members if you find that the defendant was a member of the gang.”11 Because
the jury was instructed before People v. Rodriguez was decided, this language was not
included in its instruction. We therefore cannot presume the jury found the necessary
participation by two or more gang members. If, as we suspect, the jury never made that
       10
          Insofar as People v. Rodriguez merely clarified an existing rule or resolved a
conflict among the district courts of appeal, defendant was entitled to have People v.
Rodriguez applied to his case. (Borlik, supra, 194 Cal.App.4th at pp. 40-41 [if no new
rule announced “the decision simply becomes part of the body of case law of this state,
and under ordinary principles of stare decisis applies in all cases not yet final”].) Here,
People v. Rodriguez expressly declared it was “resolv[ing] a conflict in the Courts of
Appeal.” (People v. Rodriguez, supra, 55 Cal.4th at p. 1128.) But even if People v.
Rodriguez is seen as establishing a new rule, if there was no prior rule upon which
defendant reasonably relied, then the new rule is applied retroactively. (Borlik, supra,
194 Cal.App.4th at pp. 40–41.)
       11
         This amended version of the instruction first appeared in the Fall 2013 edition of
CALCRIM. (CALCRIM No. 1400 (Fall 2013) p. 1173.) Defendant does not claim on
appeal that the jury was misinstructed.


                                              23
determination, then defendant was denied his due process right to have his jury determine
each fact necessary to his conviction beyond a reasonable doubt. (In re Winship (1970)
397 U.S. 358, 364.)
       The instructional omission was not harmless. The evidence showed unequivocally
that defendant was an AH gang member by his own admission on the witness stand.
Whether Giovanni was also a member of AH was much more uncertain.
       It was unclear from the testimony whether Giovanni joined defendant in making
gang challenges to Angel-Esparza before the fight. Corona told the police the two men
who entered the school made remarks commonly understood as gang challenges, but
when questioned more specifically, he told them that defendant made the gang challenges
and Giovanni just stood there and did not say anything. Sonato-Vega also told the police
he heard gang challenges from the two men who entered the school grounds. But Sonato-
Vega, like Corona, testified at trial he did not hear any gang challenges before the fight.
Given that defendant himself told the police Giovanni was “not a banger,” the evidence
of Giovanni’s membership in AH was weak at best.
       Whether Giovanni directly participated in the fight is even more doubtful.
Defendant told the police that Giovanni was not involved. Corona testified that only
defendant fought with Angel-Esparza, that it was “one on one” and Giovanni stood back
about 15 feet and “didn’t get involved.” This was consistent with what Corona told the
police, and the investigating officer himself referred to Giovanni as “the second person
that didn’t participate in the fight.” Sonato-Vega also testified the altercation was “just a
little fight,” a “regular fistfight” with “[j]ust two people fighting.” One of the
investigating officers also testified that defendant, during his interview, described running
back “toward where his associate was” after the fight ended. Thus, we see no evidence
that Giovanni actually participated in the fight with Angel-Esparza, even if he did
participate in making gang challenges.
       We conclude, in the end, the evidence of Giovanni’s participation in felonious
conduct is insubstantial. Given the absence of instruction on the concept clarified in
People v. Rodriguez, we see no reason to believe the jury actually deliberated on or


                                              24
resolved this factual issue. Indeed, the gang implications and consequences of the Angel-
Esparza homicide appear not to have been easy issues for the jury. After more than 30
hours of deliberation, it convicted defendant of the substantive gang offense under
section 186.22, subdivision (a) (count five), but it deadlocked on the gang enhancement
under section 186.22, subdivision (b) (1), with respect to the Angel-Esparza homicide
(count three).
       Defendant’s conviction on count five cannot stand because there was no
substantial evidence that Giovanni participated in the fight with Angel-Esparza, and it
cannot be determined from the record whether the jury actually found that two or more
members of defendant’s gang participated in felonious conduct on the occasion of the
stabbing of Angel-Esparza.
       C.        The abstracts of judgment must be corrected.
       Defendant contends the abstract of judgment must be corrected to accurately
reflect the trial court’s oral pronouncement of judgment, and the Attorney General
partially agrees. “Where there is a discrepancy between the oral pronouncement of
judgment and the minute order or the abstract of judgment, the oral pronouncement
controls.” (People v. Zachery (2007) 147 Cal.App.4th 380, 385; accord, People v. Mesa
(1975) 14 Cal.3d 466, 471.) Therefore, we order the abstract of judgment corrected to be
consistent with the trial court’s oral pronouncement. (People v. Mitchell (2001) 26
Cal.4th 181, 186-187.)
       The indeterminate term abstract of judgment mistakenly reflects that defendant
was sentenced to life without possibility of parole on count two and life with the
possibility of parole on count one. We order the indeterminate term abstract to be
corrected so that part 4 shows defendant was sentenced to life without possibility of
parole on count one and part 5 shows he was sentenced to life with the possibility of
parole, stayed, on count two.
       Defendant also claims the box on line 6b should be unchecked because it could
“erroneously be read” as indicating a second term of 25-to-life was imposed for the
firearm enhancement on count two. As we read the abstract, it shows the court imposed


                                            25
only one unstayed 25-years-to-life term for the firearm enhancement related to count one.
No correction is necessary in this regard.
       The Attorney General also points out a typographical error on the abstract for the
determinate term. That abstract should be corrected to read that the deadly weapon
enhancement was committed within the meaning of section “12022(b)(1),” instead of
section “1022(b)(1).”
                                     III.    DISPOSITION
       The judgment on count five is reversed, and in all other respects is affirmed. In
addition, we remand the case to the superior court, where the clerk shall amend both the
determinate and indeterminate abstracts of judgment as indicated in this opinion. A copy
of the corrected abstracts of judgment shall be forwarded to the Department of
Corrections and Rehabilitation.




                                             26
                                 _________________________
                                 STREETER, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
REARDON, J.




                            27
A138179, People v. Vega
People v. Vega (A138179P)

Trial court:          Sonoma County

Trial judge:          Hon. Dana B. Simonds

Attorneys:
David Y. Stanley
under appointment by the Court of Appeal
(Attorney for Defendant/Appellant)

Kamala D. Harris
Attorney General
Dane R. Gillette
Chief Assistant Attorney General
Gerald A. Engler
Masha A. Dabiza
Deputy Attorney General
Margo J. Yu
Deputy Attorney General
(Attorneys for Plaintiff/Respondent – The People of the State of California)




                                               28
