Filed 9/16/16 P. v. Gomez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067978

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS255541)

JUAN GOMEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F.

Fraser, Judge. Affirmed.

         Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Charles C. Ragland and Samantha Louise Begovich, Deputy

Attorneys General, for Plaintiff and Respondent.
       A jury convicted Juan Gomez of conspiracy to commit the murder of Jordan

Hickey (Pen. Code,1 § 182, subd. (a)(1); count 1) and the first degree murder of Hickey

(§ 187, subd. (a); count 2).2 The jury found true allegations that one or more principals

was armed with a firearm in connection with the murder (§ 12022, subd. (a)(1)) and a

special circumstance that the murder was committed by means of discharging a firearm

from a motor vehicle (§ 190.2, subd. (a)(21)). The trial court sentenced Gomez to life

without the possibility of parole on the murder count plus one year for the firearm

enhancement, and imposed but stayed the 25-year-to-life sentence on the conspiracy

count. It ordered Gomez to pay restitution as well as various fines and fees, including a

$10,000 parole revocation restitution fine.

       Gomez contends the trial court prejudicially erred by (1) admitting into evidence

two lines of rap lyrics he had written that should have been excluded as irrelevant and

more prejudicial than probative; (2) failing to give necessary jury instructions relating to

circumstantial evidence; and (3) imposing the probation revocation fine when his

sentence does not include a period of parole. We reject these contentions and affirm the

judgment.




1      Statutory references are to the Penal Code unless otherwise specified.

2     The trial court severed Gomez's trial from that of his alleged co-conspirator,
codefendant Humberto Emanuel Galvez. It also severed for trial an attempted robbery
charge (§§ 664, 211) in connection with an unrelated incident.
                                              2
                  FACTUAL AND PROCEDURAL BACKGROUND3

       At about midnight on April 29, 2011, Gomez was driving with his younger cousin,

codefendant Galvez, on Grove Street in National City when they saw Hickey walking on

the sidewalk with his bicycle. Gomez knew that Galvez had a shotgun and was "hunting

for humans." Gomez slowed the car down and made a U-turn to "get him," and Galvez

shot Hickey three times from a distance of no more than two feet. Hickey was shot in the

left elbow, leg and chest, collapsing both lungs and perforating his aorta and spinal cord,

causing an extensive amount of bleeding and his death. Had Hickey survived, his left

arm would have had to be amputated and he would have been paralyzed to some extent

from the spinal cord injury.

       Witnesses on Grove Street heard the three gunshots and one called 911, telling

police it came from a large-caliber gun or shotgun. Another Grove street resident came

upon the scene just as police drove up. He saw Hickey, who he described as having blue

eyes and blond or reddish hair, lying on the sidewalk with his bicycle.

       A sheriff's deputy investigating the matter checked surveillance video from nearby

businesses, but the video did not give clues or hints about Hickey's murder. Other leads

yielded nothing, causing the deputy to reach out to Crime Stoppers, which created flyers

with a reward and put the information up on a billboard. Further investigative efforts




3       Some of the background facts are taken from transcripts of Gomez's recorded
conversations with a confidential informant and Galvez, which were shown and provided
to the jury at trial. Others are taken from Gomez's interview with detectives, which was
also played for the jury at trial with transcripts provided to jurors.
                                             3
failed, and eventually Hickey's case was featured on a television program, San Diego's

Most Wanted.

      In January 2012, an incarcerated individual came forward with information on

Hickey's murder. The man became a cooperating informant, and he recorded telephone

and in-person conversations with Galvez and Gomez for police. Following Galvez's and

Gomez's arrests, Galvez admitted to detectives that he used a shotgun to kill Hickey.

      During Gomez's interview with sheriff's deputies, Gomez initially denied knowing

why he was in custody; that he was "clueless." He then told deputies he was drunk and

was giving Galvez a ride when he "hear[d] shots and panicked . . . . That's it." Gomez

claimed he drove away and argued with Galvez, asking him why he was shooting. He

also told deputies that he did not know a person had gotten shot and did not see anyone

on the side of the road. Gomez then stated he saw a person with a bicycle next to him,

and "next thing I know" Galvez shot at him. Gomez told deputies it was three shots.

Gomez eventually admitted that on the night of Hickey's murder he "kind of" knew

Galvez was "looking for some fools"; that Galvez had a shotgun, and that Gomez was

driving Galvez around while Galvez was hunting for humans. However, Gomez claimed

it "wasn't [his] decision." During the interview, Gomez wrote an apology note to

Hickey's mother, telling her he knew who killed her son but "never came clean"; he asked

for her forgiveness and wrote he was "an accomplice of [sic] the crime and to live on I

need your forgiveness."

      After their police interviews, Gomez and Galvez were placed together in a room

that police equipped for audio and video recording. At the outset of their recorded

                                            4
conversation, Gomez asked Galvez, "How did they find out, dude?" He complained that

the police "know a lot" and expressed suspicion that they "wired the pad." Gomez

recounted to Galvez Gomez's conversation with one of the interviewing officers: "I just

asked him now, 'How did you do it, man? After a year.' He's all, 'I do my homework.'

'Oh, you do your homework.' 'How did you know?' I go, because I remember that we

didn't leave any traces." Gomez told Galvez that the police "already had us" and

"[t]hey've had us for some time," expressing his dismay about how much police knew

after such a long time: "A fucking year has gone by, gone by since what we did with that

guy." Detectives returned to the room, and when one asked them if they wanted to say

anything to Hickey's mother, both stated that they regretted what they had done. Gomez

also repeated that he was drunk and "just drove." He also told another detective, "The

only one I did was Grove"; "The only one that I was the driver on was the . . . Jordan

Hickey one, all right?"

       Deputies searching Gomez's residence found a notebook containing lyrics that

Gomez authored. Before trial, the People sought to introduce the lyrics into evidence on

the issue of Gomez's identity, pointing to a line—"three round bursting real military"—

that was consistent with Hickey's murder by three high-caliber shots at close range.

During argument on the matter, the lyrics were alternately referred to as "rap lyrics"; a

"story," "recitation," or "poem"; or a "rap song about gang members fighting gang

members." The parties later stipulated that Gomez authored the lyrics. However, the

prosecutor continued to seek introduction of portions of the lyrics on the issue of



                                             5
Gomez's mental state or intent.4 The court eventually excluded all gang references and

the vast majority of the lyrics, but admitted into evidence two lines of the entire piece:

"three round bursting real military weaponry. Leaving cold cases for eternity."

       At trial, the jury heard Gomez's recorded conversation in which he told the

informant that he and Galvez were "sober"; that they "busted . . . a fool" and when they

exited the car, there was "body fluid everywhere, fool, on the car, fool, on the side, fool,

like . . . from the stomach fluid and shit that from the fool . . . ." When asked if the

person was an enemy, Gomez responded, "I don't even know what the fuck he was, fool.

Fool, we were just capping fools." During the conversation, he told the informant that

the person was from National City; he was on a bike on Grove Street; and that Gomez

heard about it on "Cold Cases." Gomez recounted:

       "Gomez: It was on Grove Street, fool. We're going up . . . we're going downhill,

fool, and we've seen him and I busted a U-turn, fool, to get that fool, dog. Get him, fool.

[Galvez] got him.



4        In part, the prosecutor argued: "What you have are rap lyrics that are going to
have some embellishment, as the court said, because they're evocative rap lyrics that
sound cooler when you sound a lot tougher than you really are. [¶] But what's critical in
this case is it does describe Jordan Hickey's murder and it does put in context Mr.
Gomez's state of mind, his intent. He talks about, as the Court said, 'I'm gonna kill you.'
We're killing people. 'three round bursting real military.' And I understand that's all
admissible, but you have to put the rest of it in context minus the specific gang references
. . . . [¶] But what you're left with is the idea that this is Mr. Gomez's mental state and
this is what it was when he killed Jordan Hickey, because he likes talking about it. And
he talks about how, before the three rounds bursting, 'I'm gonna kill you. Riddla on da
roof. Survival syndrome.' He's setting up this is how I feel, and when I have these three
rounds bursting real military, it's 'cause that's what I do. And that's what I just described
to you in the lyrics what it is that gives him this complete mental state."
                                               6
        [¶] . . . [¶]

        "[Informant]: . . . I seen him on America's Most Wanted that I guess, some fuckin'

. . . I ain't trying to be burnt, fool, but, I heard about that shit.

        "Gomez: That's on [Galvez] right there, fool. That was [Galvez's] ma-

masterpiece, dog. . . . [¶] . . . [¶] . . . That fool just blasted him, fool. [¶] . . . [¶] . . .

Pow, pow, pow, 'Let's go, fool.'

        [¶] . . . [¶]

        "[Informant]: Fuck it. That shit came out in American's Most Wanted, fool,

and . . .

        "Gomez: Cold Cases, fool."

        The jury also heard portions of the conversation between Gomez and Galvez that

was recorded by police after their respective arrests and interviews.

        At trial, the deputy who directed the search of Gomez's home testified that

Gomez's lyrics read in part: "three round bursting real military weaponry. Leaving cold

cases for eternity."

        During the People's closing argument, the prosecutor sought to contrast Gomez's

apology letter to Hickey's mother with the lyrics Gomez wrote: "That [apology] letter,

contrasted with what you heard in evidence, is the lyrics Mr. Gomez wrote. And the part

you consider is 'three round bursting real military weaponry. Leaving cold cases for

eternity.' Does that sound like 'I'm sorry, Ms. Hickey. I'm not responsible. In order to

live on, I need your forgiveness?' Is that what it sounds like? No. That's what it sounds

like in Mr. Gomez's head. That's what it sounds like in Mr. Gomez's head when he killed

                                                 7
Jordan Hickey and he bragged about it and he wrote these lyrics. That's what he was

thinking. Contrast these two letters [sic] and you know what his real intent is and was."

       In his closing argument, Gomez's counsel conceded that Galvez shot Hickey and

that Gomez was driving the vehicle on the night of Hickey's murder, but that the issue for

the jury was Gomez's mental state: "There is no question, no doubt in your mind, in

anyone's mind in this courtroom who sat through the evidence or even beforehand that

Juan Gomez was driving that car. And there's no question in any of your minds or in

anyone's mind here today that Mr. Galvez gunned down Jordan Hickey. [¶] You know

that. I know that. You don't need to think about that anymore as far as if it happened. I

told you from the beginning that this . . . was going to be a much more subtle case. You

were going to have to make a much more difficult subtle decision about what was in the

mind and in the heart of this young man when Mr. Galvez killed Jordan Hickey. That's

the decision you have to come to. [¶] Because the law in this case says to you to know

what somebody wants to do is not to want it necessarily, and that's not enough. To know

what they're going to do, be there and not stop it isn't enough. You can be that coward.

. . . [¶] You have to want it in your mind and in your heart to kill. That's what this case

is about. And if you have any question, any reservation, any rational question in your

mind whether or not [Gomez] wanted to kill, then he's not guilty of first degree murder."

As for Gomez's two lines of lyrics, Gomez's counsel argued: "You have evidence that

this notebook is, from cover to cover, filled with rap lyrics. And you have these two lines

about three bursts military automatic. Well, if you've been in the military, you know

military weapons can fire in three bursts or single rounds or fully auto. Why is he

                                             8
presenting that? Pages and pages of lyrics written by Mr. Gomez, information, and these

two lines out of context. [¶] [The prosecutor successfully objects on grounds the

argument states facts not in evidence.] [¶] . . . It doesn't help you in making your

decision. It's inflammatory. . . . It's his evidence. What are the facts?"

                                       DISCUSSION

                       I. Admission of Gomez's Lyrics into Evidence

       Pointing out the two lines of rap lyrics—"three round bursting real military

weaponry. Leaving cold cases for eternity"—were part of a larger set of lyrics that

included references to gang membership and gang activities, Gomez contends the trial

court prejudicially erred by permitting the prosecutor to introduce those two lines into

evidence on the theory that they went to Gomez's mental state or intent. Gomez

maintains the evidence did not tend logically, naturally or by reasonable inference to

establish any fact material for the People or to overcome any material fact the defense

sought to prove; that it led only to a speculative inference regarding Gomez's intent at the

time of Hickey's homicide, and thus it was irrelevant under Evidence Code section 350.

Gomez further contends that the effect of the court's ruling was that the People got the

"benefit of gang lyrics without calling them gang lyrics," and thus the evidence should

have been excluded under Evidence Code section 352 because its probative value was

slight and potential for prejudice substantial as the lyrics were taken out of context,

thereby confusing the issues and misleading the jury.




                                              9
A. Legal Principles and Standard of Review

       "The general framework for the admission of evidence as it relates to defendant['s]

challenge[ ] is as follows. Only relevant evidence is admissible. [Citation.] Relevant

evidence is broadly defined as that having a 'tendency in reason to prove or disprove any

disputed fact that is of consequence' to resolving the case." (People v. Bryant, Smith and

Wheeler (2014) 60 Cal. 4th 335, 405.) " ' "The test of relevance is whether the evidence

tends 'logically, naturally, and by reasonable inference' to establish material facts such as

identity, intent, or motive. [Citations.]" [Citation.] [¶] . . .' [Citation.] '[T]he trial court

has broad discretion to determine the relevance of evidence.' [Citation.] This discretion

extends to evidentiary rulings made pursuant to Evidence Code section 352." (People v.

Tully (2012) 54 Cal. 4th 952, 1010.) Evidence Code section 352 permits the court to

exclude evidence in its discretion "if its probative value is substantially outweighed by

the probability that its admission will (a) necessitate undue consumption of time or (b)

create substantial danger of undue prejudice, of confusing the issues, or of misleading the

jury." Prejudicial evidence means " 'evidence which uniquely tends to evoke an

emotional bias against defendant as an individual and which has very little effect on the

issues.' " (People v. Bolin (1998) 18 Cal. 4th 297, 320.) " 'In applying [Evidence Code]

section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis

(1988) 46 Cal. 3d 612, 638.)

       We review the trial court's evidentiary rulings for abuse of discretion. (People v.

Clark (2016) 63 Cal. 4th 522, 597; People v. Bryant, Smith and Wheeler, supra, 60



                                              10
Cal.4th at p. 405.) "A court abuses its discretion if it acts 'in an arbitrary, capricious, or

patently absurd manner.' " (People v. Boyce (2014) 59 Cal. 4th 672, 687.)

B. Analysis

       Gomez's isolated lyrics showed similarities to Hickey's murder in that Hickey

sustained three shotgun shots and it became a cold case. In that way, they were arguably

pertinent to Gomez's knowledge about details of Hickey's murder and his involvement in

it. But those issues were uncontested at trial, eliminating any relevance on those grounds.

(Evid. Code, §§ 210, 350; People v. Coleman (1979) 89 Cal. App. 3d 312, 321 ["Evidence

presented on a nondisputed issue is irrelevant and, hence, inadmissible"].) And we

question whether those lyrics had a tendency in reason to prove that Gomez harbored an

intent to kill Hickey when he drove Galvez and facilitated Hickey's killing on the night of

the murder. The People maintain that on the intent issue, the lyrics were inherently

relevant and admissible under Evidence Code sections 1220 and 1250 as, respectively, a

party admission and evidence of Gomez's then existing state of mind to prove his state of

mind at another time.5 There is authority that would permit us to conclude that the fact




5      Evidence Code section 1220 provides in part: "Evidence of a statement is not
made inadmissible by the hearsay rule when offered against the declarant in an action to
which he is a party in either his individual or representative capacity . . . ." Evidence
Code section 1250 provides: "(a) Subject to Section 1252 [relating to lack of
trustworthiness], evidence of a statement of the declarant's then existing state of mind,
emotion, or physical sensation (including a statement of intent, plan, motive, design,
mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:
[¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or
physical sensation at that time or at any other time when it is itself an issue in the action;
or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.
                                               11
Gomez's writing may be characterized as a party statement or admission so as to avoid

the hearsay rule does not permit its introduction into evidence if the writing has no

relevance. (See, e.g., People v. Castille (2005) 129 Cal. App. 4th 863, 875-876 ["Simply

stated, and as a general rule, if a party to a proceeding has made an out-of-court statement

that is relevant and not excludable under Evidence Code section 352, the statement is

admissible against that party declarant," italics added]; but see People v. Epperson (1985)

168 Cal. App. 3d 856, 861 ["A statement is an admission for purposes of Evidence Code

section 1220 if it was made by a party and offered against him, without reference to what

it tends to prove"].) Other authority suggests that the fact that evidence falls within a

hearsay exception and is not otherwise inadmissible does not mean a trial court may

necessarily dispense with a relevance or Evidence Code section 352 analysis. (See

People v. Kraft (2000) 23 Cal. 4th 978, 1032-1036 [trial court properly admitted

handwritten "death list" as a coded list of defendant's victims because it reasonably

concluded (1) it was relevant to a disputed fact of consequence to the case (defendant's

awareness of characteristics of the murders); (2) the entries reflected a sufficient nexus

with some aspect of the case; (3) the list was admissible under the Evidence Code section

1220 hearsay exception for a party statement, and (4) the list was more probative than

prejudicial]; People v. Carpenter (1999) 21 Cal. 4th 1016, 1049 ["Concluding that

defendant's statement was not excludable under the hearsay rule does not, of course,

necessarily mean it was admissible"].)


[¶] (b) This section does not make admissible evidence of a statement of memory or
belief to prove the fact remembered or believed."
                                             12
       We need not resolve these evidentiary issues because we conclude that even

assuming arguendo the court abused its discretion in admitting the evidence, Gomez has

not shown its admission prejudiced him. Prejudice is not presumed, but must be

affirmatively demonstrated. (People v. Bell (1998) 61 Cal. App. 4th 282, 291.) This court

may only reverse the judgment if the erroneous admission of evidence is prejudicial,

resulting in a miscarriage of justice. (Evid. Code, § 353; Cal. Const., art. VI, § 13;

People v. Watson (1956) 46 Cal. 2d 818, 836.) " '[A] "miscarriage of justice" should be

declared only when the court, "after an examination of the entire cause, including the

evidence," is of the "opinion" that it is reasonably probable that a result more favorable to

the appealing party would have been reached in the absence of the error.' " (People v.

Richardson (2008) 43 Cal. 4th 959, 1001, quoting Watson, at p. 836; see People v.

Lazarus (2015) 238 Cal. App. 4th 734, 787, fn. 53.)

       Gomez's showing does not meet this prejudice standard. His sole argument on the

point is that the court's alleged error deprived him of the opportunity to be convicted on

" 'relevant, nonprejudicial evidence,' " and that "[t]he danger of the jury convicting [him]

based upon something other than admissible evidence was real since the central dispute

with regard to the primary charge of murder involved [his] intent, a matter not readily

susceptible to proof." We are unpersuaded. The references to these lyrics during trial

was brief, and they contained no gang references. Any evidentiary error in admitting

these two lines of written text unquestionably would have been harmless in light of the

other evidence of Gomez's intent to kill for purposes of first degree murder, conspiracy,



                                             13
and the special circumstance allegation.6 (See People v. Homick (2012) 55 Cal. 4th 816,

872; accord, People v. Weaver (2001) 26 Cal. 4th 876, 946.) Gomez does not challenge

the sufficiency of the evidence of intent necessary for these charges or allegations. And

here, the evidence amply supports the jury's finding that Gomez personally possessed an

intent to kill.7 Gomez admitted to detectives during his interview that he knew Galvez

had a shotgun and was out "hunting humans." Gomez previously told the informant

during their recorded conversation that they were out "just capping fools," and after

he and Galvez spotted Hickey, Gomez made a U-turn so that Galvez could "get that

fool . . . ." There was no dispute at trial that Gomez was driving the vehicle from which

Galvez fired multiple shots at Hickey at close range with his shotgun. Evidence that a

6      In connection with the conspiracy, the court instructed the jury in part that "the
People have the burden of proving beyond a reasonable doubt that the defendant acted
with the specific intent to agree and did agree with the other principal to intentionally and
unlawfully kill. If the People have not met this burden, you must find the defendant not
guilty of conspiracy as charged in Count 1." The court instructed the jury that to prove
the special circumstance allegation true, "the People must prove that: Humberto Galvez
shot a firearm from a motor vehicle, killing Jordan Hickey; two, Humberto Galvez
intentionally shot at a person who was outside the vehicle; and, three, at the time of the
shooting, the defendant intended to kill." By convicting on first degree murder and
conspiracy, and by finding the special circumstance allegation true, the jury necessarily
resolved the factual question of Gomez's mens rea, his intent to kill, adversely to him.

7      An aider and abettor may be convicted of first degree premeditated murder when
the evidence shows "the defendant aided or encouraged the commission of the murder
with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose
of committing, encouraging, or facilitating its commission." (People v. Chiu (2014) 59
Cal. 4th 155, 167; see also People v. Lee (2003) 31 Cal. 4th 613, 624 ["When the crime at
issue requires a specific intent, in order to be guilty as an aider and abettor the person
'must share the specific intent of the [direct] perpetrator,' that is to say, the person must
'know[ ] the full extent of the [direct] perpetrator's criminal purpose and [must] give[ ] aid
or encouragement with the intent or purpose of facilitating the [direct] perpetrator's
commission of the crime' "]; People v. Beeman (1984) 35 Cal. 3d 547, 560.)
                                             14
person aims and deliberately shoots at a vital area of a person's body at close range can

support a verdict of premeditated and deliberate first degree murder. (See People v.

Koontz (2002) 27 Cal. 4th 1041, 1082; see also People v. Tafoya (2007) 42 Cal. 4th 147,

189 [" '[A]n execution-style killing may be committed with such calculation that the

manner of killing will support a jury finding of premeditation and deliberation, despite

little or no evidence of planning and motive' "]; People v. Rand (1995) 37 Cal. App. 4th
999, 1001-1002.) After their arrest, Gomez complained to Galvez that police had found

out "what we did to that guy," despite the fact "we didn't leave any traces." We see no

indication that the jury would have reached a different conclusion about Gomez's intent

had they not heard the two lines of his rap lyrics. In short, Gomez cannot meet his

burden of establishing a reasonable probability—one that is sufficient to undermine the

confidence in the jury's convictions—that he would have received a more favorable result

had the court excluded the lyrics.

                             II. Claims of Instructional Error

       Following the presentation of evidence, the trial court instructed the jury with

CALCRIM No. 223 as to direct and circumstantial evidence and CALCRIM No. 225

regarding circumstantial evidence of a defendant's intent or mental state.

       Specifically, it instructed: "Facts may be proved by direct or circumstantial

evidence or by a combination of both. . . . Circumstantial evidence also may be called

indirect evidence. Circumstantial evidence does not directly prove the fact to be decided,

but is evidence of another fact or group of facts from which you may logically and

reasonably conclude the truth of the fact in question. For example, if the witness testified

                                            15
that he saw someone come inside wearing a raincoat covered with drops of water, that

testimony is circumstantial evidence because it may support a conclusion that it was

raining outside.

       "Both direct and circumstantial evidence are acceptable types of evidence to prove

or disprove the elements of a charge, including intent and mental state and acts necessary

to a conviction, and neither is necessarily more reliable than the other. Neither is entitled

to any greater weight than the other. You must decide whether a fact in issue has been

proved based on all the evidence." (CALCRIM No. 223.)

       "The People must prove not only that the defendant did the acts charged, but also

that he acted with a particular intent and/or mental state. The instruction for each crime

and allegation explains the intent and/or mental state required.

       "An intent or mental state may be proved by circumstantial evidence.

       "Before you may rely on circumstantial evidence to conclude that a fact necessary

to find the defendant guilty has been proved, you must be convinced that the People have

proved each fact essential to that conclusion beyond a reasonable doubt.

       "Also, before you may rely on circumstantial evidence to conclude that the

defendant had the required intent and/or mental state, you must be convinced that the

only reasonable conclusion supported by circumstantial evidence is that the defendant

had the required intent and/or mental state. If you can draw two or more reasonable

conclusions from the circumstantial evidence, and one of those reasonable conclusions

supports a finding that the defendant did have the required intent and/or mental state and

another reasonable conclusion supports a finding that the defendant did not, you must

                                             16
conclude that the required intent and/or mental state was not proved by the circumstantial

evidence. However, when considering circumstantial evidence, you must accept only

reasonable conclusions and reject any that are unreasonable." (CALCRIM No. 225.)

      As to the special circumstance allegation, the court instructed with CALCRIM No.

700, providing that the People had the burden of proving the special circumstance beyond

a reasonable doubt, CALCRIM No. 705 regarding circumstantial evidence of intent or

mental state for purposes of the special circumstance allegation,8 and CALCRIM No.

735, stating the elements of the special circumstance of committing murder by shooting a

firearm from a moving vehicle.

      Gomez contends the court erred by failing to additionally instruct the jury sua

sponte with CALCRIM No. 224 as to the sufficiency of circumstantial evidence,9 and



8       The court read CALCRIM No. 705 in part as follows: "Before you may rely on
circumstantial evidence to conclude that the defendant had the required intent or mental
state, you must be convinced that the People have proved each fact essential to that
conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial
evidence to conclude that the defendant had the required intent or mental state, you must
be convinced that the only reasonable conclusion supported by the circumstantial
evidence is that the defendant had the required intent or mental state. If you can draw
two or more reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions supports a finding that the defendant did have the required intent
or mental state and another reasonable conclusion supports a finding that the defendant
did not have the required intent or mental state, you must conclude that the required
intent or mental state was not proved by the circumstantial evidence. However, when
considering circumstantial evidence, you must accept only reasonable conclusions and
reject any that are unreasonable."

9      As the People point out, Gomez's counsel was given a choice and asked the trial
court to instruct with CALCRIM No. 225 rather than CALCRIM No. 224. "CALCRIM
No. 224 corresponds to [former] CALJIC No. 2.01 and CALCRIM No. 225 corresponds
to [former] CALJIC No. 2.02. Case law addressing CALJIC instructions is still generally
                                            17
CALCRIM No. 704, regarding circumstantial evidence of special circumstances.10 As

we explain, the contentions are unavailing.

A. The Court Did Not Err by Declining to Instruct the Jury with CALCRIM No. 224

       CALCRIM No. 224 "describes the manner in which the jury is to consider

circumstantial evidence that the prosecution offers to prove facts necessary to find a

defendant guilty." (People v. Contreras, supra, 184 Cal.App.4th at p. 591.) The

instruction provides: "Before you may rely on circumstantial evidence to conclude that a

fact necessary to find the defendant guilty has been proved, you must be convinced that

the People have proved each fact essential to that conclusion beyond a reasonable doubt.

[¶] Also, before you may rely on circumstantial evidence to find the defendant guilty,

you must be convinced that the only reasonable conclusion supported by the

circumstantial evidence is that the defendant is guilty. If you can draw two or more

reasonable conclusions from the circumstantial evidence, and one of those reasonable



applicable to the corresponding CALCRIM instruction." (People v. Contreras (2010)
184 Cal. App. 4th 587, 591, fn. 4.)

10     CALCRIM No. 704 reads: "Before you may rely on circumstantial evidence to
conclude that a special circumstance allegation is true, you must be convinced that the
People have proved each fact essential to that conclusion beyond a reasonable doubt.
[¶] Also, before you may rely on circumstantial evidence to find that a special
circumstance allegation is true, you must be convinced that the only reasonable
conclusion supported by the circumstantial evidence is that the special circumstance
allegation is true. If you can draw two or more reasonable conclusions from the
circumstantial evidence, and one of those reasonable conclusions supports a finding that
the special circumstance allegation is true and another reasonable conclusion supports a
finding that it is not true, you must conclude that the allegation was not proved by the
circumstantial evidence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable."
                                              18
conclusions points to innocence and another to guilt, you must accept the one that points

to innocence. However, when considering circumstantial evidence, you must accept only

reasonable conclusions and reject any that are unreasonable." (CALCRIM No. 224.)

       Both CALCRIM Nos. 224 and 225 explain how to consider circumstantial

evidence, but CALCRIM No. 224 is " 'more inclusive.' " (People v. Contreras, supra,

184 Cal.App.4th at p. 592, quoting People v. Samaniego (2009) 172 Cal. App. 4th 1148,

1172.) CALCRIM No. 224 must be given sua sponte when the prosecution substantially

relies on circumstantial evidence to prove any element of the case. (Samaniego, at

p. 1171.) But it "should not be given where circumstantial evidence is incidental to and

corroborative of direct evidence." (Ibid.) And "CALCRIM No. 225 is to be used in

place of CALCRIM No. 224 'when the defendant's specific intent or mental state is

the only element of the offense that rests substantially or entirely on circumstantial

evidence.' " (Id. at pp. 1171-1172; People v. Bloyd (1987) 43 Cal. 3d 333, 351.)

       Here, the People's case against Gomez was almost exclusively focused on proving

his intent or mental state on the night of Hickey's killing. The evidence of Gomez's guilt

otherwise rested substantially on direct evidence, including testimony from law

enforcement and the medical examiner, Gomez's apology letter, and Gomez's

incriminating statements to the informant (telling him he and Galvez were "just capping

fools" and he made a U-turn so that Galvez could "get" Hickey), to the detectives who

interviewed him, and to Galvez during their time alone in the interview room. Defense

counsel conceded that Gomez participated as the driver and that Galvez murdered Hickey

by shooting him at close range with a shotgun. Under the circumstances, the court

                                             19
properly instructed the jury only with CALCRIM No. 225. (People v. Samaniego, supra,

172 Cal.App.4th at pp. 1171-1172.)

       Gomez nevertheless argues that CALCRIM No. 224 "would have informed the

jurors how to evaluate circumstantial evidence relating to factual issues such as whether

or not an agreement existed with respect to the conspiracy charge." But on this point as

well, the issue was Gomez's specific intent or mental state to agree or conspire with

Galvez. (See People v. Johnson (2013) 57 Cal. 4th 250, 262 ["traditional conspiracy

requires both the specific intent to agree, and specific intent to commit a target crime"];

People v. Cortez (1998) 18 Cal. 4th 1223, 1232 ["[C]onspiracy is a specific intent crime

requiring both an intent to agree or conspire and a further intent to commit the target

crime or object of the conspiracy"].) We again conclude the trial court properly

instructed the jury with CALCRIM No. 225, which told the jury how to consider

circumstantial evidence on the issue of intent or mental state.

B. The Court Did Not Err by Declining to Instruct the Jury with CALCRIM No. 704

       On similar grounds, we reject Gomez's contention that the court erred by failing to

instruct the jury with CALCRIM No. 704, regarding the use of circumstantial evidence

with respect to a special circumstance allegation. Gomez argues that the instruction

"would have informed the jurors how to evaluate circumstantial evidence relating to

whether or not the shots were fired from a motor vehicle . . . ." However, again, the

People relied substantially on direct evidence—Gomez's admissions and incriminating

statements to officers and the informant—to prove that Gomez was driving the vehicle



                                             20
from which Galvez fired the shotgun at Hickey. " 'It is the general rule that a trial court is

not required to instruct on the rules of law applicable to circumstantial evidence

where the alleged circumstantial evidence is incidental to, and corroborative of, direct

evidence.' " (People v. Rodrigues (1994) 8 Cal. 4th 1060, 1142, quoting People v.

Malbrough (1961) 55 Cal. 2d 249, 250-251.) Though the People relied on circumstantial

evidence of Galvez's intent to kill, that issue was addressed by the court's instruction with

CALCRIM No. 705, which told the jury how to consider circumstantial evidence as to

Gomez's intent or mental state, and was properly given in place of CALCRIM No. 704.

(See Use Note to CALCRIM No. 705 ["If intent or mental state is the only element of the

special circumstance that rests substantially on circumstantial evidence, then this

instruction should be given in place of CALCRIM No. 704"].) The court did not err with

respect to the jury instructions.

                          III. Parole Revocation Restitution Fine

       During Gomez's sentencing, the trial court imposed a $10,000 restitution fine

pursuant to section 1202.4, subdivision (b), as well as a $10,000 parole revocation

restitution fine under section 1202.45, which would become effective if his parole is

revoked. Characterizing his sentence as merely a term of life without the possibility of

parole, Gomez asks us to strike the $10,000 parole revocation restitution fine. He

contends that section 1202.45, which authorizes the fine, does not apply because his

sentence does not include a period of parole. He is mistaken.

       Section 1202.45, subdivision (a) provides: "In every case where a person is

convicted of a crime and his or her sentence includes a period of parole, the court shall, at

                                             21
the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,

assess an additional parole revocation restitution fine in the same amount as that imposed

pursuant to subdivision (b) of Section 1202.4."11 "Under section 1202.45, a trial court

has no choice and must impose a parole revocation fine equal to the restitution fine

whenever the 'sentence includes a period of parole.' " (People v. Smith (2001) 24 Cal. 4th
849, 853.)

       Thus, where the only sentence imposed is life without the possibility of parole,

there is no parole eligibility and the fine is not applicable. (See People v. Battle (2011)

198 Cal. App. 4th 50, 63; People v. Oganesyan (1999) 70 Cal. App. 4th 1178, 1183

(Oganesyan).) But when a defendant is sentenced to state prison, his sentence usually

includes a period of parole supervision. (People v. Preston (2015) 239 Cal. App. 4th 415,

424-425, citing section 3000, subd. (a)(1); see also People v. Nuckles (2013) 56 Cal. 4th
601, 609.)

       In People v. Brasure (2008) 42 Cal. 4th 1037, 1075, the California Supreme Court

held the trial court properly imposed a parole revocation fine on a defendant sentenced to

death as well as other determinate prison terms under section 1170, subdivision (h). It

pointed to section 3000, subdivision (a)(1), which provides: " 'A sentence resulting in

imprisonment in the state prison pursuant to Section 1168 or 1170 shall include a period

of parole supervision or postrelease community supervision, unless waived.' " The court


11     Section 1202.4, subdivision (b), provides: "In every case where a person is
convicted of a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so and states those
reasons on the record."
                                             22
held that because the defendant's sentence included a period of parole under section 1170,

the fine was required to be imposed and suspended unless and until the defendant was

released on parole and parole was revoked. (Brasure, at p. 1075.)

       Here, in addition to Gomez's count 2 sentence of life without the possibility of

parole, Gomez was sentenced to an indeterminate term of 25 years to life on count 1

under section 1168. Subdivision (a)(1) of section 3000 expressly applies to sentences

imposed under section 1168. Accordingly, the sentence "shall include a period of parole"

and is subject to a suspended parole revocation fine under section 1202.45.

       Gomez's cited authorities do not persuade us otherwise. In People v. Battle, supra,

198 Cal. App. 4th 50, the defendant was sentenced only to an indeterminate sentence of

life without the possibility of parole (with additional terms stayed under section 654), and

the Attorney General conceded a parole revocation restitution fine was improper. (Id. at

pp. 58, 63.) In People v. McWhorter (2009) 47 Cal. 4th 318, the California Supreme

Court accepted the People's concession and struck a parole revocation fine where the

defendant was sentenced to death as well as some other unspecified term on a first degree

residential robbery. (Id. at p. 380.) The McWhorter court's decision was without analysis

other than to cite Oganesyan, supra, 70 Cal. App. 4th 1178. (McWhorter, at p. 380.) To

the extent the McWhorter court's conclusion conflicts with People v. Brasure, supra, 42
Cal. 4th 1037, we elect to follow Brasure's reasoned and developed analysis. (Cf.

McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal. 3d 348, 358 ["When . . . a

decision treats an issue in a 'summary and conclusory' manner, and is 'virtually devoid of

reasoning,' its authoritative status is undermined"].)

                                             23
       In Oganesyan, the Court of Appeal held a parole revocation fine was properly

rejected where a defendant was sentenced to life without the possibility of parole for first

degree special circumstance murder and, on a separate count, an indeterminate term of 15

years to life for second degree murder, plus a four-year firearm enhancement.

(Oganesyan, supra, 70 Cal.App.4th at pp. 1181, 1184.) In part, the court reasoned that

because the defendant's "overall sentence" did not "presently" allow for parole, and

there was no evidence it ever would, no additional restitution fine was required. (Id. at

p. 1185.) It explained that the purpose behind the restitution fine scheme was to recoup

costs resulting from parole revocation, and because the chance of such recoupment was

extremely rare, the Legislature could not have intended the scheme to apply "under such

unlikely circumstances." (Id. at p. 1185 & fn. 3.) In Brasure, however, the court

distinguished Oganesyan, and declined to change its conclusion on grounds the parole

period was unlikely to be served: "As in Oganesyan, to be sure, defendant here is

unlikely ever to serve any part of the parole period on his determinate sentence.

Nonetheless, such a period was included in his determinate sentence by law and carried

with it, also by law, a suspended parole revocation restitution fine. Defendant is in no

way prejudiced by assessment of the fine, which will become payable only if he actually

does begin serving a period of parole and his parole is revoked." (People v. Brasure,

supra, 42 Cal.4th at p. 1075.)

       Brasure essentially disapproved Oganesyan's underlying reasoning, and thus we

decline to follow Oganesyan, supra, 70 Cal. App. 4th 1178. Gomez's indeterminate

sentence carried with it a possibility of a period of parole and mandated imposition of the

                                             24
section 1202.45 parole revocation restitution fine. As in Brasure, supra, 42 Cal. 4th 1037,

Gomez "is in no way prejudiced by assessment of the [suspended parole revocation] fine,

which will become payable only if he actually does begin serving a period of parole and

his parole is revoked." (Id. at p. 1075.)

                                       DISPOSITION

       The judgment is affirmed.


                                                                          O'ROURKE, J.

WE CONCUR:


HUFFMAN, Acting P. J.


NARES, J.




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