Filed 9/3/26 P. v. Bailey CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B342374
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA499793-02)
v.
ADRIAN BRYAN BAILEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Shelly Torrealba, Judge. Affirmed as modified and remanded with directions.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Adrian Bryan Bailey appeals from his judgment of conviction of first degree murder (Pen. Code, § 187, subd. (a))1 with a true finding on a personal use firearm enhancement (§ 12022.5). On appeal, Bailey argues: (1) the trial court erred in refusing to instruct the jury on provocation with CALCRIM Nos. 522 and 570; (2) the verdict form includes an unproven firearm-enhancement allegation under section 12022.5, subdivision (d); and (3) certain postverdict minute orders and the abstract of judgment contain errors that require correction. We conclude the trial court properly refused Bailey’s request for jury instructions regarding provocation because there was no substantial evidence of legally sufficient provocation in this case. We further conclude the reference to section 12022.5, subdivision (d) must be stricken from the verdict on the murder count because that allegation was not proven. In addition, we conclude the relevant minute orders and the abstract of judgment must be amended to correct certain errors. We accordingly modify the judgment of conviction to strike the reference to section 12022.5, subdivision (d) from the verdict on count 1, affirm the judgment as modified, and remand the matter to the trial court to make the corrections to its minute orders and abstract of judgment consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND 1. Charges In an information, Bailey was charged with the murder of Eric Rand-Willis (§ 187, subd. (a); count 1), the attempted willful,
1 Unless otherwise stated, all further undesignated statutory references are to the Penal Code.
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deliberate, and premeditated murder of Angel Thompson (§§ 664, 187, subd. (a); count 2), and possession of a firearm by a felon (§ 29800, subd. (a)(l); count 3). As to counts 1 and 2, it was alleged that Bailey personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d). As to count 2, it also was alleged that Bailey personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). 2. Evidence at trial On May 5, 2021, Eric Rand-Willis and his fiancé, Angel Thompson, were in front of their house on South Manhattan Place in Los Angeles County. The house was located in an area claimed by the Rollin’ 90s gang, a rival of the Eight Trey Gangster Crips. Surveillance cameras in the area captured three vehicles—a blue SUV, a white sedan, and a gold sedan—drive along South Manhattan Place, turn onto a nearby street, and come to a stop. While the driver stayed inside the blue SUV, Bailey and another man exited the vehicle and began walking toward the victims’ house.
As they approached the house, Bailey and his companion removed guns from their pockets. Bailey had a silver-colored handgun, and his companion had a dark-colored handgun. When Bailey pulled out his gun, a lighter and a set of headphones fell from his pocket to the ground. With both arms extended at shoulder level, Bailey fired multiple rounds in the direction of Rand-Willis and Thompson. After Bailey stopped shooting, his companion began firing his gun in the same direction. Bailey and his companion then ran back to the blue SUV, and all three vehicles drove away.
Rand-Willis suffered a fatal gunshot wound. The bullet entered his back and exited through his chest. Thompson also
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suffered a gunshot wound to her back and was severely injured, but survived.
During the police investigation, six .40-caliber casings and four nine-millimeter casings were recovered from the scene of the shooting. The .40-caliber casings were matched to a silver handgun that was later seized from Autum Vidal. Following his arrest, Vidal told a jailhouse informant that he was an Eight Trey gang member and acted as the driver in the shooting. The police also recovered a lighter and headphones from the scene of the shooting. Bailey’s DNA was found on the headphones.
On October 14, 2021, the investigating detectives in the case recorded an interview of Bailey. During the interview, Bailey initially denied any involvement in the shooting. After describing the evidence against Bailey, the detectives asked him to explain how the shooting occurred. In response, Bailey stated, “Same person shot at me before. Still got the bullet wound in my leg.” Bailey showed the detectives his leg wound and stated that he was shot during a “little altercation” a week before the shooting in this case. He claimed that he did not remember what the altercation was about. Bailey also denied knowing who the shooter was or where he was from, but noted, “All I know is when he shot me, … that wasn’t gonna be the end of it.” When asked if he reported the shooting to the police, Bailey answered, “I didn’t call no police. I didn’t go to no hospital. Just—I went back home, took it out, patched it up and it is what it is. Called it a day.” Bailey later added, “Why am I gonna report it to the police? … I don’t … [¶] … [¶] … want that type of justice. [¶] … [¶] I rather have … [¶] … [¶] … it myself.”
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The detectives asked Bailey what his plan was on the day of the shooting in this case. Bailey replied, “There really wasn’t no plan. I was just—I just had my get back. I—I wanted revenge.” He also told the detectives that he was “[g]oing to get my revenge,” and that “I got shot, so I’m going to go shoot back.” Bailey denied that the individuals who accompanied him that day were aware of his plan, stating, “[T]hey know that I got shot, but they didn’t know exactly what I was planning to do. Like I said, my plan was my plan.” He claimed that he only told the “person that was driving the car, take me over there. I got some business to handle.” Bailey further stated that he had been told by others that the man who shot him “hangs around in the 9-0s,” and that he recognized the man as the shooter because he “remember[s] faces.” Bailey admitted that he was armed with a .40-caliber gun when he went to confront the man, and that he fired his gun at him until “the clip was empty.”
The detectives noted that Bailey’s “mission was to take this dude out,” and that he “succeeded.” In response, Bailey stated, “Take him out before he tried to take me out. … [¶] … [¶] He already tried to execute me.” When told that the man was unarmed at the time that Bailey shot him, Bailey replied, “But he shot me. That’s—that’s all that matters.” Bailey also stated, “[I]t’s not what I wanted to do. It’s what I had to do. … [¶] … [¶] ’Cause … it was every day that I was looking over my back worrying about having to get shot again. So why worry about that when I … [¶] … [¶] … just go do what I got to do.”
During a recorded conversation with a paid jailhouse informant, Bailey admitted that he was an Eight Trey gang member. He also stated, “I told on my damn self. … They caught me red-handed.” Bailey later told the informant, “Cuz shot me. I
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went to go get revenge. Straight up. I told the [police], like, somebody tried to take your life, what would you do?” 3. Jury verdict and sentencing At the conclusion of the trial, the jury found Bailey guilty of the first degree murder of Rand-Willis (count 1) and possession of a firearm by a felon (count 3). As to count 1, the jury also found true the allegation that Bailey personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d). The jury found Bailey not guilty of the attempted murder of Thompson (count 2). Following the jury verdict, the trial court granted the People’s motion to dismiss all aggravating factor allegations.
The trial court sentenced Bailey to an aggregate term of 29 years to life in state prison, consisting of 25 years to life on count 1, a consecutive term of four years on the firearm enhancement under section 12022.5, subdivision (a), and a concurrent term of two years on count 3.
Bailey filed a timely appeal.
DISCUSSION
1. Failure to instruct the jury on provocation Bailey argues the trial court erred in denying his request to instruct the jury on provocation with CALCRIM Nos. 522 and 570. Bailey asserts there was substantial evidence of provocation in this case because a reasonable juror could have found that he killed Rand-Willis in a heat of passion due to provocation, which would have reduced his culpability to second degree murder or voluntary manslaughter. We conclude the trial court did not err in refusing to give the requested instructions because there was no substantial evidence of legally sufficient provocation.
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1.1. Relevant background As to count 1 charging Bailey with the murder of Rand-
Willis, the trial court instructed the jury with CALCRIM Nos. 500 (homicide), 520 (first or second degree murder with malice aforethought), and 521 (first degree murder). Defense counsel asked the trial court to also instruct the jury on the effect of provocation on the degree of murder with CALCRIM No. 522, and on voluntary manslaughter based on heat of passion with CALCRIM No. 570.
In denying the request, the trial court explained that “revenge is not the kind of evidence that warrants an instruction on provocation.” The court noted that, in addition to a lapse in time and a difference in location between the alleged shooting of Bailey and the killing of Rand-Willis, “there was a lot of effort … and thought process by Mr. Bailey to locate the victim, and in his own words, get revenge.” The court later added, “If there were any facts to support it, … I would give this instruction, but it’s not there. And providing the instruction would only confuse the jury.”
In response to the trial court’s ruling, defense counsel asked if the court was “saying that getting shot in the leg is not provocation.” The court replied, “Not under these circumstances. Not in an extended period of time where the incident occurred a week later, two unarmed people standing in their yard … that are shot at after three [cars] pull up, circle, two people get out, walk down the street, get to the location, turn, look, put two hands on the gun and point it directly at the victim, take multiple shots and then run back into a car and leave. [¶] There was zero provocation by the individual on that date. And a week later, with the defendant’s own statements saying that he was not
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going to be spending the rest of his life looking over his shoulder and that this was for revenge. No, there’s no provocation.”
Defense counsel also asked if the court’s ruling precluded him from arguing provocation to the jury. In response, the court stated, “No, I’m not going to give the instruction because I don’t believe the facts warrant it. But it doesn’t preclude you from making your argument and the jury giving it at least a consideration. They have the choice to make between first and second degree. And they can make that decision based on the facts as they find them.”
At the conclusion of the trial, the jury found Bailey guilty of first degree premeditated murder.
1.2. Governing law “ ‘ “[I]t is the [trial] ‘court’s duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed.’ ” ’ ” (People v. Westerfield (2019) 6 Cal.5th 632, 718.) “ ‘ “Conversely, even on request, the [trial] court ‘has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.’ ” ’ ” (People v. Souza (2012) 54 Cal.4th 90, 116 (Souza).) “The ‘substantial evidence requirement is not satisfied by “ ‘any evidence … no matter how weak,’ ” but rather by evidence from which a jury … could conclude “that the lesser offense, but not the greater, was committed.” ’ ” (People v. Nelson (2016) 1 Cal.5th 513, 538 (Nelson).) “ ‘On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.’ ” (Ibid.)
“Criminal homicide is divided into two types: murder and manslaughter.” (People v. Beltran (2013) 56 Cal.4th 935, 941
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(Beltran).) Murder is the “unlawful killing of a human being … with malice aforethought.” (§ 187, subd. (a).) Malice may be express or implied, and is express “when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.” (§ 188, subd. (a)(1).) “A killing with express malice formed willfully, deliberately, and with premeditation constitutes first degree murder.” (Beltran, at p. 942.) “ ‘Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.’ ” (Ibid.) “Provocation may preclude a defendant from subjectively premeditating and deliberating and, as a result, may reduce a murder from first degree to second degree.” (People v. Nunez (2023) 97 Cal.App.5th 362, 368; see People v. Thomas (2023) 14 Cal.5th 327, 384.)
Voluntary manslaughter is “the unlawful killing of a human being without malice … [¶] … upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) “Heat of passion arises if, ‘ “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” ’ ” (Beltran, supra, 56 Cal.4th at p. 942.) “ ‘ “[T]he factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter from murder is provocation.” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1225 (Rangel).) “ ‘To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection. … [T]he anger or other passion must be so strong that the defendant’s reaction bypassed his
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thought process to such an extent that judgment could not and did not intervene.’ ” (Ibid.) “ ‘ “ ‘[I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.’ ” ’ ” (Ibid.) “Moreover, the defendant must ‘actually be motivated by passion in committing the killing’; that is, he or she must be acting ‘ “ ‘under the smart of that sudden quarrel or heat of passion.’ ” ’ [Citation.] Accordingly, it is not sufficient that a person ‘is provoked and [then] later kills.’ ” (Nelson, supra, 1 Cal.5th at p. 539.)
1.3. The trial court did not err in denying Bailey’s request to instruct the jury on provocation Bailey contends the trial court should have instructed the jury on provocation with CALCRIM Nos. 522 and 570 because his recorded statements to the investigating detectives and jailhouse informant constituted substantial evidence of provocation. Bailey specifically claims that his “statements that he was in fear for his life—one week after having been shot—add up to substantial evidence that [he] killed Rand-Willis [in] the heat of passion due to provocation.” We disagree.
It is well established that “a desire for revenge cannot objectively satisfy the provocation requirement.” (Souza, supra, 54 Cal.4th at p. 117.) However, in his recorded statements, Bailey made clear that the reason he shot Rand-Willis was because he was seeking revenge. Bailey told the investigating detectives that, after Rand-Willis shot him in the leg, he did not report the incident to the police because “I don’t … [¶] … [¶] … want that type of justice. [¶] … [¶] I rather have … [¶] … [¶] … it myself.” Bailey also stated that, on the day he killed Rand-Willis, he “wanted revenge,” he was “[g]oing to get [his] revenge,” and he “got shot, so I’m going to go shoot back.” Bailey provided a
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similar explanation for the killing in his conversation with the jailhouse informant, claiming, “Cuz shot me. I went to go get revenge. Straight up.” In his interview with the detectives, Bailey did express that he wanted to “take [Rand-Willis] out before he tried to take me out,” and that “it was every day that I was looking over my back worrying about having to get shot again.” However, the fact that Bailey worried about being shot again in the future is not substantial evidence that he acted rashly and without deliberation and reflection when he set out with his companions to find and shoot Rand-Willis. Instead, Bailey’s own statements showed that he made a conscious decision to kill Rand-Willis to eliminate any future threat, explaining, “[W]hy worry about that when I … [¶] … [¶] … just go do what I got to do.”
Moreover, the circumstances surrounding the shooting in this case reflected planning and deliberation rather than a rash act. As described by Bailey, the shooting of Rand-Willis took place one week after Rand-Willis shot Bailey in the leg during an altercation. This was sufficient time for “ ‘ “ ‘passion to subside and reason to return.’ ” ’ ” (Rangel, supra, 62 Cal.4th at p. 1225 [no substantial evidence of provocation where two weeks had elapsed between shooting of defendant’s son and defendant’s killing of alleged shooters]; Souza, supra, 54 Cal.4th at p. 115 [no substantial evidence of provocation where defendants, upon learning their mother was assaulted earlier that night, drove around looking for alleged assailant’s home and then killed assailant after locating and entering home].) Further, on the day of the fatal shooting, Bailey did not run into Rand-Willis by chance. Rather, after learning that Rand-Willis lived in the neighborhood claimed by the rival Rollin’ 90s gang, Bailey
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directed one of his companions to drive him to that location because he had “some business to handle.” In addition, surveillance video showed that the blue SUV that took Bailey to Rand-Willis’s residence was part of a caravan of three cars that drove through the area and parked on a nearby street. After Bailey and another one of his companions exited the SUV, they each walked toward Rand-Willis’s house, pulled out guns from their pockets, and then fired their weapons repeatedly at the unarmed victims. Baily and his companion then ran back to the SUV, and all three cars left the area together. The totality of these circumstances thus “ ‘reveal[ed] a concerted effort to plan and execute a surprise attack,’ not rash action.” (Rangel, at p. 1225.) Because the record does not contain substantial evidence of legally sufficient provocation, the trial court did not err in refusing to instruct the jury with CALCRIM Nos. 522 and 570. 2. Firearm enhancement under section 12022.5, subdivision (d) Bailey contends the jury’s true finding on the firearm enhancement allegation under section 12022.5, subdivision (d) must be stricken and the matter remanded for resentencing because that allegation was never proven at trial. The People concede that the reference to section 12022.5, subdivision (d) should be stricken from the verdict form because it was the result of a clerical error, but assert that a remand for resentencing is unwarranted in this case. We agree with the People.
“ ‘ “ ‘A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court.’ ” ’ ” (People v. Jones (2014) 230 Cal.App.4th 373, 378–379.) “[T]echnical defects in a verdict
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may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.” (People v. Webster (1991) 54 Cal.3d 411, 447.) “Where the error is in the recording of the judgment, as opposed to in the rendering of the judgment, it is clerical error which may be disregarded or corrected.” (People v. Camacho (2009) 171 Cal.App.4th 1269, 1273, citing People v. Trotter (1992) 7 Cal.App.4th 363, 370.)
Section 12022.5 imposes a sentence enhancement for the personal use of a firearm in the commission or attempted commission of any felony. Subdivision (a) of the statute provides, in relevant part, that “any person who personally uses a firearm in the commission of a felony … shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.” (Id., subd. (a).) Subdivision (d) of the statute states that, “[n]otwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used, or for murder if the killing is perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death.” (Id., subd. (d).)
Here, the charging information alleged firearm enhancements under section 12022.5, subdivisions (a) and (d). At trial, however, the court did not instruct the jury on any enhancement alleged under subdivision (d) of the statute. Although the standard instruction given by the court cited “Pen. Code § 12022.5(a)/(d)” in its title, the body of the instruction only described the elements of an enhancement under section 12022.5,
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subdivision (a). Additionally, the prosecution’s closing argument to the jury on the firearm enhancement solely addressed the allegation under subdivision (a) of the statute, and made no reference to subdivision (d). Nevertheless, in the verdict form for count 1, the murder charge, the jury was asked whether, in the commission of that offense, Bailey “personally used a firearm, a handgun, within the meaning of Penal Code Section 12022.5(a) and (d).” The jury found that allegation to be true.
At sentencing, the trial court stated: “I don’t have any wiggle room as to count one, the sentence is 25 years to life. The only consideration and discretion this court has is as to the enhancement, the firearm enhancement, which is Penal Code section 12022.5 (A) and the count [for] possession of a firearm by a felon as to the sentencing on that. [¶] … I am prepared and will impose an aggregate sentence of 29 years to life calculated as follows: [¶] Twenty-five years to life on count one. [The] [c]ourt would select and use its discretion, taking into consideration the youthfulness of Mr. Bailey at the time of committing this offense and his childhood endeavors as presented to the court … In accord with Penal Code section 1385, I’m using my discretion and impose the midterm of four years consecutive.” The abstract of judgment reflects a firearm enhancement of four years pursuant to “PC12022.5(A).”
Based on the totality of this record, it is clear that the jury intended to find that, as to count 1, Bailey personally used a firearm in the commission of the offense within the meaning of section 12022.5, subdivision (a). Because an enhancement allegation under section 12022.5, subdivision (d) was never proven to the jury, it was error to include a specific reference to subdivision (d) of the statute in the verdict form given to the jury.
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As a result, the verdict for count 1 must be corrected to strike the erroneous reference to section 12022.5, subdivision (d).
Contrary to Bailey’s claim, however, a remand for resentencing is not warranted. The trial court made clear at sentencing that it was imposing a four-year term on the firearm enhancement solely under section 12022.5, subdivision (a). The court never referred to section 12022.5, subdivision (d) in sentencing Bailey, and there is nothing in the record to suggest that the court relied on subdivision (d) of the statute in selecting the middle term of four years. There is also no indication in the record that the court misunderstood the scope of its discretion under section 1385. Under these circumstances, Bailey is not entitled to resentencing on the firearm enhancement allegation found true by the jury under section 12022.5, subdivision (a). 3. Advisement under In re Tellez At sentencing, the trial court gave Bailey a purported advisement pursuant to In re Tellez (2024) 17 Cal.5th 77 (Tellez). In Tellez, the Supreme Court held that trial courts are required to advise criminal defendants of the potential consequences of a guilty or no contest plea under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). (Tellez, at pp. 83–84.) On appeal, Bailey argues, and the People agree, that the Tellez advisement given by the trial court was unauthorized because this case did not involve a plea. Thus, the reference to the Tellez advisement in the trial court’s October 10, 2024 sentencing minute order must be stricken. 4. Dismissal of aggravating factor allegations The charging information alleged various factors in aggravation. On April 19, 2024, after the jury returned its verdicts, the trial court granted the prosecution’s motion to
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dismiss the aggravating factors. However, as Bailey asserts on appeal, the trial court’s minute order for that date does not reflect such dismissal. Accordingly, the April 19, 2024 minute order must be amended to reflect that the trial court dismissed each of the aggravating factor allegations on the People’s motion. 5. Corrections to abstract of judgment Bailey contends, and the People concede, that the abstract of judgment contains two errors that require correction.
First, the “Other Orders” page attached to the abstract of judgment lists the trial court’s order that Bailey pay $12,055 in restitution to the Victim Compensation Board twice. The abstract of judgment must be modified to delete one of the duplicative restitution orders.
Second, while the determinate abstract of judgment form (Form CR-290) accurately reflects a concurrent term on count 3 for possession of a firearm by a felon, section 6 of that form lists the “TOTAL TIME ON ATTACHED PAGES” as 29 years and 0 months. Because section 7 of Form CR-290 already captures the fact that there is an “[a]dditional indeterminate term,” section 6 should have been left blank. (See People v. Wright (2025) 113 Cal.App.5th 832, 848 [where remainder of sentence is indeterminate, “in section six, the determinate form CR-290 must show no time”].) The abstract of judgment must be modified to show no time on section 6 of Form CR-290.
DISPOSITION
The judgment of conviction is modified to strike the erroneous reference to section 12022.5, subdivision (d) from the verdict on count 1. As modified, the judgment of conviction is affirmed. The matter is remanded to the trial court with directions to (1) strike the reference to the Tellez advisement in
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the October 10, 2024 minute order; (2) amend the April 19, 2024 minute order to reflect the dismissal of the aggravating factor allegations on the People’s motion; and (3) amend the abstract of judgment to delete one of the duplicative restitution orders from the “Other Orders” page and to show no time on section 6 of Form CR-290. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.