People v. Zepeda CA3

Filed 11/3/26 P. v. Zepeda CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) THE PEOPLE, C102947 Plaintiff and Respondent, (Super. Ct. No. 21FE010889) v. JORGE ARMANDO ZEPEDA, Defendant and Appellant. In July 2021, defendant Jorge Armando Zepeda drove his truck twice over a man and killed him, the second time going over the curb and striking a woman who came to the victim’s aid, rear-ended a car and assaulted the driver with a tire iron, and beat then shot a man who tried to intervene. A jury found Zepeda guilty of first degree murder, four counts of assault with a deadly weapon, attempted murder, and two counts of assault with a semi-automatic firearm, and found true numerous enhancements. On appeal, Zepeda contends his trial counsel was ineffective for failing to present a “diminished actuality defense” after Zepeda withdrew a plea of not guilty by reason of insanity. We will affirm the judgment and direct the trial court to correct errors in the abstracts of judgment and minutes. FACTUAL AND PROCEDURAL BACKGROUND Several witnesses testified during the trial in this matter and the reporter’s transcript is over 1,500 pages. In view of the issues raised on appeal, we do not attempt 1 to recite all of the facts underlying Zepeda’s conviction. Instead, we summarize pertinent facts. Additional background information relevant to Zepeda’s claims is set forth in the discussion section. On June 21, 2021, Zepeda, driving a pickup truck, ran over Rodney Hallett as he stepped into a crosswalk. Zepeda then turned his truck around, jumped the center median, drove in the wrong direction down the street, and ran over Hallett again. After Zepeda hit Hallett the first time, N.H. came to Hallett’s aid. After striking Hallett the second time, Zepeda drove over the curb onto the grass, struck N.H. on the left leg, and drove off. N.H. suffered a shin bone fracture and an open wound over the facture. Hallett died at the scene. The cause of death was multiple blunt force trauma consistent with being struck by a vehicle. While fleeing and driving at a high rate of speed, Zepeda then rear-ended a small black sedan. The driver, C.S., applied the brakes before impact, and Zepeda’s truck pushed the car down the street. When the vehicles stopped, Zepeda got a tire iron out of his truck, opened the driver’s side door of C.S.’s sedan, and hit C.S. with the tire iron. C.S. tried to block a blow to the head, and Zepeda broke the ring finger on C.S.’s left hand. Zepeda continued beating C.S., who also suffered a laceration to his left shin. E.H., a security guard patrolling the area, saw Zepeda strike the black sedan then attack C.S. with a tire iron. As E.H. passed, Zepeda threw the tire iron into the windshield of E.H.’s car. E.H. drove around Zepeda’s truck and made a U-turn so E.H.’s car was facing the truck. At E.H.’s urging, C.S. ran to E.H.’s car and got in the back seat. E.H. drove in reverse to elude Zepeda. They ended up in an Elks Lodge parking lot across the street where RV’s were parked. S.H. and C.H. were in their RV parked in the Elks Lodge lot. They heard a vehicle crash, and S.H. went out to render aid. C.H. stayed inside the RV. C.H. saw that Zepeda’s pickup truck had crashed into C.S.’s sedan. Zepeda came into the parking lot with a tire iron. S.H. pulled his gun out of his pocket and approached Zepeda. C.H. 2 stayed in the RV and got her gun out of her purse. Zepeda rushed at S.H. and knocked him down. They fought over the gun. C.P. saw Zepeda straddling S.H. and beating him. He drove his pickup truck into the parking lot and knocked Zepeda off S.H. Zepeda got the handgun away from S.H. and shot at him several times at close range as he lay on the ground. S.H. suffered a penetrating traumatic brain injury from a gunshot to his head, a laceration and a fracture to his left hand, and a dislocated left shoulder. When C.H. yelled at Zepeda for shooting her husband, Zepeda turned around, headed towards her RV with a gun in his hand, and pointed it at C.H. Standing in the doorway of the RV, C.H. shot Zepeda, and he went down. Zepeda got back up, and C.H. shot him again. Zepeda was trying to clear S.H.’s gun, which had misfired. He tripped, fell down, and dropped the gun. Zepeda got back up, and. C.H. shot him a third time at the steps of the RV. C.H. told Zepeda that if he got back up, she would shoot him again. Zepeda was shot in the abdomen and the right side of the chest. C.H. picked up her husband’s gun and put it on the counter in the RV next to her gun. E.H. saw Zepeda grappling with S.H. in the parking lot, saw S.H. fall to the ground, and heard a gunshot. E.H. approached in his vehicle and saw Zepeda holding a gun and trying to clear a jam. Zepeda pointed the gun at E.H., who was unarmed. E.H. drove behind some trees. E.H. heard more shots and saw Zepeda fall to the ground. E.H. approached again in his vehicle and told C.H. to bring the guns out of the RV. E.H. used C.H.’s gun to hold Zepeda at gunpoint until the police arrived. When they did, E.H. put both guns on the hood of his car. 3  Zepeda was charged with murder (Pen. Code, 1 § 187, subd. (a); count one), two counts of willful and deliberate attempted murder (§§ 664/187, subd. (a); counts two & six), four counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts three, four, five & eight), and two counts of assault with a firearm (§ 245, subd. (b); counts seven & nine). As to counts one and two, it was alleged that Zepeda personally used a deadly weapon (§ 12022, subd. (b)(1)), as to counts two, three, and seven that Zepeda personally inflicted great bodily injury (§ 12022.7, subd. (a)), as to count six that Zepeda personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (a), (b), (d)), as to counts seven and nine that Zepeda used a semi-automatic firearm (§ 12022.5, subds. (a), (d)), and as to count nine that Zepeda personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)). The amended information further alleged that Zepeda suffered a prior strike conviction in 2000 for voluntary manslaughter (§§ 667, subds. (b)-(i), 1170.12). Zepeda was also charged with misdemeanor hit-and-run (Veh. Code, § 20002, subd. (a); count ten), which the trial court dismissed at trial on the People’s motion. Lastly, the amended information alleged three aggravating circumstances under California Rules of Court, 2 rule 4.421: Zepeda engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); Zepeda’s prior convictions are numerous or of increasing seriousness (rule 4.421(b)(2)); and Zepeda served a prior prison term (rule 4.421(b)(3)). At trial, Zepeda testified on his own behalf. Zepeda said that on June 21, 2021, he received a call at about 5:00 a.m. from a blocked number. The caller said, “Hey, we’re on our way to your house. We’re—we’re coming.” Zepeda drove to his ex-wife’s house, fearing harm to her and his two children. Previously, Zepeda had received texts with 1 Undesignated statutory references are to the Penal Code. 2 Undesignated rule references are to the California Rules of Court. 4 images of body parts demanding money or the sender would “[h]arm his family, cut off their heads … .” On cross-examination, Zepeda confirmed that he received the text messages months before the call but never contacted authorities. A sheriff’s deputy also testified that an examination of Zepeda’s cell phone showed no unknown call received at 5:30 a.m. on June 21, 2021. The first call made that day on Zepeda’s phone was at 2:46 a.m. to Zepeda’s ex-wife. When Zepeda arrived at his ex-wife’s house, he asked her to let him see the children to make sure they were fine. She let him see his son but not his daughter, saying she was asleep. On cross-examination, Zepeda confirmed his ex-wife wanted him to leave. When she tried to close the door, Zepeda forced it back open and broke it. After he left, his ex- wife texted him warning him not to come to her house or she would obtain a restraining order. She demanded Zepeda pay for the broken door. Zepeda’s ex-wife texted: “You are a piece of shit father that hurts his kids. You are the lowest form of human and father. What real man breaks the front door to where his kids live? We can’t even close … our door. You piece of shit.” Zepeda drove to work but was not “feeling right,” so he headed home. On the way, Zepeda saw a man on the right-hand side of the road that he recognized. Zepeda thought the man he saw on the street was one of three men who jumped him at a bar the week prior. Zepeda thought about the texts and the phone call he received that morning and decided he needed to kill the man or he was going to harm Zepeda’s family. Zepeda ran him over and made a U-turn to run him over again to “make sure that this guy’s down.” After the second time, Zepeda lost control of his truck, went over the curb, and came out on the other side of street. He thought “I better get out of here before more— before they show up,” referring to the man’s friends from the bar. 5  Zepeda described the man from the bar fight as bald, heavy set—weighing “220 pounds maybe”—in his late 40’s, and wearing a black hoodie, a vest, and jeans. When shown a Department of Motor Vehicles record that described Hallett as five foot 10 inches tall and 160 pounds and a photo that did not match Zepeda’s description, Zepeda initially insisted he had run over the man in the photo. When pressed, Zepeda finally conceded that Hallett, the man he killed, was not the man from the bar fight. Zepeda was headed back to his ex-wife’s house when a black sedan in front of him “brake-checked” him. Zepeda looked around and saw another black car. He thought, “these are the guys” that are “comin’ after me.” Zepeda thought, “there was more of them” and “they were gonna try to kill me.” Zepeda rear-ended the sedan. When the vehicles stopped moving, Zepeda grabbed a tire iron to defend himself. Zepeda hit the sedan twice, opened the door, and punched the driver two or three times. Zepeda saw another black sedan coming straight at him. He thought it was going to run him over, so he threw the tire iron. Someone yelled, and Zepeda looked up and saw a man pointing a gun at him. Zepeda took two steps, and the man shot him in the right shoulder. Zepeda’s arm went limp. He could not move his arm, and he was bleeding. Zepeda ducked behind his truck, took off his shirt, and looked for something to stop the bleeding. Zepeda could not find anything, but he saw another tire iron and grabbed it. When the man turned away for a moment, Zepeda ran up to him and grabbed the gun. They “start[ed] going back and forth for the gun,” punching each other. The man fell back and hit his head on the concrete. A truck pulled up and hit Zepeda. Zepeda let go of the gun, which fell to the ground. Zepeda heard a shot and felt a bullet enter on his left side and exit on his right side. Zepeda turned and saw a woman pointing a gun at him. Zepeda started losing consciousness. He took a few steps, fell down, and woke up in an ambulance. The jury found Zepeda not guilty on count two and guilty of all other charges and found the attached enhancements true. 6  At a bifurcated bench trial, the trial court found the prior conviction and the aggravating circumstances true beyond a reasonable doubt. The court granted Zepeda’s motion to dismiss the prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court sentenced Zepeda to the middle term of seven years in state prison on count six as the principal term and imposed a 25-year-to-life consecutive term for the attached enhancement. On the subordinate counts, the trial court sentenced Zepeda to the middle term of one year consecutive on count three plus one year consecutive for the enhancement, one year consecutive on count four, three years on count five (stayed under § 654), 13 years on count seven including enhancements (stayed under § 654), three years on count eight (stayed under § 654), and two years consecutive on count nine, striking the attached enhancement. On count one for murder, the court sentenced Zepeda to 25 years to life plus one year consecutive for the enhancement. Zepeda’s aggregate term was 13 years plus 50 years to life. The trial court imposed minimum mandatory fines and assessments and granted Zepeda 1,300 actual days of custody credit and zero days of conduct credit. The court ordered Zepeda to pay restitution of $5,422.40 to the victim compensation fund and direct restitution to the victims in amounts to be determined. Zepeda filed a timely notice of appeal. DISCUSSION I. Ineffective Assistance of Counsel On appeal, Zepeda contends he received ineffective assistance of counsel because his trial counsel did not present evidence of diminished actuality. Zepeda argues that counsel could have raised a diminished actuality defense notwithstanding Zepeda’s decision to withdraw a plea of not guilty by reason of insanity. We are not persuaded. 7 A. Additional Background In June 2023, Zepeda pled not guilty by reason of insanity. Pursuant to section 1027, the trial court appointed two doctors to evaluate Zepeda. If these reports exist, they are not part of the record on appeal. On August 28, 2023, Zepeda withdrew the plea of not guilty by reason of insanity, and the trial court vacated the orders to the doctors. (See People v. Gauze (1975) 15 Cal.3d 709, 717-718 [a defendant has a personal right to refuse to enter an insanity plea].) The reporter’s transcript of this hearing is also not part of our record. In October 2024, the People filed a combination trial brief and motions in limine. The trial brief stated that after the incidents: (1) Zepeda’s wife told a sergeant that she was separated from Zepeda because of his mental health, Zepeda told her he could hear people talking to him through vents, and Zepeda had gotten worse because he stopped taking prescribed medication and was self-medicating; and (2) Zepeda himself told a sergeant that he did what he did because he was told to do it. The People moved in limine to exclude opinion evidence from lay witnesses about Zepeda’s mental state. The People also filed a motion to exclude or limit psychiatric evidence and requested an Evidence Code section 403 hearing on such evidence. The People argued that the “diminished capacity defense” had been abolished, and evidence of mental illness was only admissible on whether Zepeda formed specific intent, harbored malice aforethought, premeditated, or deliberated. The People deemed the term “diminished actuality” “meaningless and intellectually dishonest.” The trial court granted the first motion and deemed the second motion moot because the defense did not intend to call a psychiatric expert. After the close of evidence, Zepeda withdrew his request that the trial court give CALCRIM No. 3428, the pattern instruction on mental impairment that explains the defense of diminished actuality. (See People v. Larsen (2012) 205 Cal.App.4th 810, 824.) 8  After the verdict, Zepeda filed a Romero motion arguing in part that, since moving to Northern California with his family, “[Zepeda’s] mental health started to change with paranoia, hearing and seeing things that were not there.” His ex-wife called the police many times due to Zepeda’s mental health. His failure to take his medication led to many outbursts and finally separation from his family. The motion further noted that Zepeda was placed on a Welfare and Institutions Code section 5150 hold (section 5150 hold) six months before his current crimes. (Jacobs v. Grossmont Hospital (2003) 108 Cal.App.4th 69, 71-72 [Welf. & Inst. Code, § 5150 “allows temporary detention of mentally disordered individuals who pose a danger either to themselves or to others, for treatment and evaluation”].) Documentation attached as exhibits included a January 2021 psychiatric consultation note by a social worker, who concluded Zepeda met the criteria for a section 5150 hold. The consultation note stated that Zepeda was brought into the hospital after he called police because someone was inside his truck and was later “ ‘found in a parking lot after having hit another car.’ ” (Italics omitted.) Zepeda stated to police “ ‘that people were following him and trying to kill him.’ ” (Italics omitted.) Zepeda told the social worker he was being followed by multiple drivers because he owed them money and reported he received death threats in phone messages for not paying. Zepeda acknowledged purposely backing into the car of an elderly woman because he thought she was part of the conspiracy. Under risk assessment, the consultation note stated that Zepeda denied homicidal thoughts, “but believes he is under attack and will retaliate if indicated.” Zepeda was diagnosed with substance induced psychotic disorder and depressive disorder. The note concluded Zepeda “present[s] as severely paranoid and lacks any insight and judgment regarding the events that occurred last night rendering patient at high risk for further such behaviors were he to be discharged from the [hospital].” In June 2021, a social worker evaluated Zepeda when he was brought into the hospital for treatment of a gunshot wound. When asked if he had homicidal thoughts, 9 Zepeda first denied that he did but then said, “ ‘well that’s why I’m here.’ ” When asked about hallucinations, Zepeda first denied having them but later stated he “was receiving messages from his radio and phone that he needed to do what he did or he would never see his children again.” Zepeda also stated he was receiving death threats in text messages but could not say who he believed were sending them. At the sentencing hearing, the court said: “There is ample documented evidence that Zepeda has suffered from mental illness. It’s well-documented in the defense briefs and attachments, including that he was on a 5150 hold from January 8th, 2021, to January 9th, 2021, two days, at Kaiser. That was approximately six months prior to the current offense.” Defense counsel argued that it was unfortunate the defense was not able to present the history of Zepeda’s worsening mental illness. Zepeda’s family tried a section 5150 hold, but Zepeda continued to fail to take his medication leading to his actions in this case. Defense counsel reminded the trial court that “evidence … did not come out at trial in regards to hearing voices from the vents or from the radio,” but such evidence could still be considered in sentencing and should be a factor in determining the length of sentence. Zepeda’s counsel concluded: “As an attorney, I think it’s unfortunate that a defendant has authority of whether we can proceed [not guilty by reason of insanity] and whether we don’t because, as an attorney, I would have—I’d like to have proceeded along those lines, but the law is what the law is in regards to that and that’s why we weren’t able to introduce the medical issues and mental health issues that Mr. Zepeda had at trial.” Zepeda made a statement apologizing to the victims and said, “I was not in the right state of mind. … I was going through stuff and I know it’s not an excuse. And I already admitted and said what it was.” 10  In sentencing Zepeda, the trial court stated it considered “the circumstances surrounding the 5150 hold, what the doctors and other medical professionals observed … .” The court noted that “there was some evidence that—coming from Mr. Zepeda that he heard voices, [but] there was also evidence that these acts occurred shortly after a call he received from the mother of his children stating that he would not be seeing his children, which lends itself to a different interpretation, that he was reacting to that call.” The trial court further observed that Zepeda did not have methamphetamine in his system on the day in question and denied in the hospital he was currently suffering from mental health issues or depression. The court, however, considered Zepeda’s mental health as a mitigating factor, because the evidence showed Zepeda stopped taking his medication and regressed. The court granted the defense Romero motion and dismissed the prior strike allegation. Similarly, the court considered section 1170, subdivision (b)(6), which provides in relevant part that if a defendant experiences psychological trauma as a contributing factor in the crime, a sentencing court should impose the lower term, unless it finds aggravating circumstances outweigh mitigating circumstances and that imposing the lower term would be contrary to the interest of justice—findings that the court in this instance made. The trial court also considered whether to dismiss the 25-year-to-life enhancement under section 1385 in part because “the current offense was connected to mental illness” but found that dismissing the enhancement would endanger public safety and result in physical injury or serious danger to others. B. Legal Standards “In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel’s performance ‘ “ ‘ “fell below an objective standard of reasonableness … under prevailing professional 11 norms.” ’ ” ’ [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mickel (2016) 2 Cal.5th 181, 198.) A reviewing court accords great deference to counsel’s tactical decisions and presumes that counsel’s actions fell within the broad range of reasonableness and can be explained as a matter of sound trial strategy. (Ibid.) Zepeda thus faces a difficult burden. On direct appeal, the court will reverse a conviction based on ineffective assistance grounds only if there is affirmative evidence that counsel had no rational tactical purpose for an action or omission. (Ibid.) As to the diminished actuality defense itself, to support the defense, “a defendant presents evidence of voluntary intoxication or mental condition to show he ‘actually’ lacked the mental states required for the crime.” (People v. Clark (2011) 52 Cal.4th 856, 880, fn. 3, citing People v. Steele (2002) 27 Cal.4th 1230, 1253.) Section 28, subdivision (a), provides: “Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” In People v. Elmore (2014) 59 Cal.4th 121 (Elmore), the California Supreme Court drew a key distinction between evidence admissible under section 28 and in an insanity defense. In Elmore, the court considered whether a trial court erroneously refused a defense request for instructions on self-defense “based solely on a defendant’s delusional mental state.” (Elmore, at p. 132; see also id. at p. 134 [“defendant claims his request for an instruction on unreasonable self-defense should have been granted, even though his perception of a threat was entirely delusional”].) The defendant stabbed a 12 woman to death at a bus stop with a sharpened paint brush handle. (Id. at p. 130.) He requested an unreasonable self-defense instruction based on his testimony that hallucinations made him believe he needed to defend himself, despite the absence of any evidence that the woman threatened him. (Id. at pp. 130-132.) The Elmore court concluded the defendant was not entitled to an instruction based on section 28, subdivision (a), which allows evidence of mental disorders regarding whether the defendant actually formed the mental state required for a specific intent crime. (Elmore, supra, 59 Cal.4th at pp. 139-141.) The court observed that the language of the statute appears to allow a defendant to argue a delusion precluded him or her from forming the requisite intent, but the court held the statute is limited in that context. (Id. at p. 140.) “A claim of unreasonable self-defense based solely on delusion is quintessentially a claim of insanity under the M’Naghten standard of inability to distinguish right from wrong.” (Ibid.; see also People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1456 [“Persons operating under a delusion theoretically are insane since, because of their delusion, they do not know or understand the nature of their act or, if they do, they do not know that it is wrong”].) After guilt is established, evidence of insanity may only be presented in the second phase of a bifurcated proceeding where the defendant bears the burden of proving insanity by a preponderance of the evidence. (Elmore, at pp. 141, 144-145.) Otherwise, the prosecution would improperly have the burden of proving defendant was not insane beyond a reasonable doubt. (Id. at p. 145.) Although the defendant in Elmore sought instructions on unreasonable self- defense, the court’s reasoning applies to the diminished actuality defense. In fact, the court in Elmore said, “Section 28[, subdivision ](a) allows defendants to introduce evidence of mental disorder to show they did not actually form a mental state required for guilt of a charged crime. But the scope of the diminished actuality defense is necessarily limited by the presumption of sanity,” which bars a defendant from claiming he or she was not guilty because he or she was insane, that is, delusional. (Elmore, supra, 13 59 Cal.4th at p. 141.) Consequently, a defendant is permitted to offer only evidence of mental illness short of delusion to support the defense of diminished actuality. (Id. at p. 146.) This court applied Elmore in People v. McGehee (2016) 246 Cal.App.4th 1190. In that case, the defendant, suffering from a psychotic disorder, was convicted of second degree murder after he stabbed his mother multiple times. (Id. at p. 1194.) The defendant argued on appeal that the trial court should have instructed on diminished actuality involuntary manslaughter as a lesser included offense. (Id. at pp. 1194, 1207.) The defendant conceded he acted with intent to kill when he stabbed his mother but argued the jury could have found the killing to be without express or implied malice, if it found he did not believe he was stabbing a human as a result of his delusion that she was a demon. (Id. at p. 1208.) We concluded this argument was “foreclosed by the reasoning of Elmore.” (Ibid.) Whether or not this delusion existed, and whether or not it exonerated the defendant for killing, was reserved for the sanity phase of the trial. (Id. at p. 1195.) C. Application We conclude defense counsel did not render ineffective assistance in failing to mount a diminished actuality defense, because the record is clear that Zepeda would have offered that he was delusional when he committed his crimes and committed the crimes due to his delusions. We note that defense counsel plainly considered offering the defense because he proposed that the trial court instruct the jury with CALCRIM No. 3428. Counsel withdrew the instruction after Zepeda’s testimony that he was operating under a delusion when he killed Hallett and assaulted C.S. Zepeda testified that he killed Hallett based on the belief that Hallett was one of the men who had beaten Zepeda at bar the week before and was involved in a conspiracy to demand money from Zepeda and threaten his family. At trial, the People established there was no factual basis for Zepeda’s beliefs. Zepeda never received a 5:00 a.m. phone call from someone saying 14 they were on their way to his house, and Hallett bore no resemblance to Zepeda’s description of his assailant. (See Elmore, supra, 59 Cal.4th at p. 136, fn. 7 [citing multiple definitions of “delusion” as a false belief that persists despite evidence and facts to the contrary].) Further, in his opening brief, Zepeda acknowledges and agrees that “[t]he evidence before the jury indicated that the defendant was delusional at the time of these offenses.” Zepeda argues correctly that evidence presented at trial showed he “acted based on delusion” when he murdered Hallett and assaulted C.S. Therefore, any defense based on the premise that Zepeda’s mental illness actually diminished his ability to form the requisite intent is “foreclosed by the reasoning of Elmore.” (People v. McGehee, supra, 246 Cal.App.4th at p. 1208.) We conclude defense counsel was not ineffective for withdrawing CALCRIM No. 3428 or failing to present a diminished actuality defense. (See, e.g., People v. Dennis (1998) 17 Cal.4th 468, 541 [ineffective assistance claim based on failure to request a jury instruction must fail where the defendant was not entitled to such an instruction]; People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24 [defense counsel is not ineffective for failing to raise futile arguments].) II. Abstracts of Judgment and Minute Order At the sentencing hearing, the trial court granted Zepeda’s Romero motion and struck the prior conviction. The court also imposed mandatory minimum fines and assessments: a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $300 stayed parole revocation fine (Pen. Code, §1202.45), $30 court facilities assessment (Gov. Code, § 70373), and $40 court operations assessment (Pen. Code, § 1465.8). However, the box for a five-year prior serious felony conviction enhancement was checked on the determinate sentence abstract of judgment, as well as the box for a prior strike conviction under the three strikes law on the indeterminate sentence abstract of judgment, and both abstracts of judgment omitted the fines and assessments. The sentencing minute order 15 also erroneously omits the mandatory fines and assessments the court imposed. “Rendition of the judgment is normally an oral pronouncement, and the abstract of judgment cannot add to, or modify, the judgment, but only purports to digest and summarize it.” (People v. Zackery (2007) 147 Cal.App.4th 380, 384.) “When there is a discrepancy between the record of the court’s oral pronouncement of judgment and the clerk’s minute order, the oral pronouncement controls.” (People v. Hartley (2016) 248 Cal.App.4th 620, 637; see also People v. El (2021) 65 Cal.App.5th 963, 967 [“ ‘[T]he clerk’s minutes must accurately reflect what occurred at the [sentencing] hearing’ ”], citing Zackery, at pp. 387-388.) We will direct the trial court to correct the abstracts of judgment and minute order to correct these errors. DISPOSITION The trial court is directed to correct its minutes of the January 10, 2025, sentencing hearing to reflect the fines and assessments imposed by the trial court. The trial court is further directed to correct the abstracts of judgment consistent with this opinion and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed. /s/ EARL, P. J. We concur: /s/ HULL, J. /s/ ROBIE, J. 16