People v. Martinez CA2/5

Filed 10/23/26 P. v. Martinez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE THE PEOPLE, B344077 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA097252) v. RICARDO MARTINEZ, Defendant and Appellant. APPEAL from a judgment of the Superior Court of the County of Los Angeles, Richard H. Kirschner, Judge. Affirmed and remanded with instructions. Danalynn Pritz, 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, Senior Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.  I. INTRODUCTION Defendant Ricardo Martinez appeals from his second degree murder conviction, arguing there was insufficient evidence that he acted with either express or implied malice. He also contends the trial court erred when it failed to instruct sua sponte on the lesser included offense of involuntary manslaughter and refused his request for an instruction on accident. And, he asserts the abstract of judgment mistakenly reflects a restitution fine the court did not impose and a parole revocation fine that the court erroneously imposed. We affirm the murder conviction and remand the matter with instructions to amend the abstract of judgment by deleting the two fines. II. FACTUAL BACKGROUND A. The Parties and Witnesses In July 2022, the murder victim, Brittany Stevens, was residing in a travel trailer (RV)1 parked on Camellia Avenue in North Hollywood. She lived there with her partner, Chelsea Nugent. The couple had been using drugs for about six years, 1 The interior of the RV was small with a bathroom at the back of the vehicle, an adjoining bedroom, a kitchen area in the middle, and a living room with a loveseat at the front where the trailer hitch was located. The only entryway was through a door located on the curb side of the vehicle, toward the front, with an access ramp. There was a narrow hallway running from the entry to the back only wide enough for one person to pass. 2 including heroin and methamphetamine, and had been addicted to fentanyl for at least six months prior to the shooting. According to Nugent, she and Stevens met defendant in August 2021. He began spending “a lot of time” at their RV and sometimes would spend the night. Defendant “would watch over [Nugent] while [Stevens] was gone [from the RV] working late at night[]. That’s how the relationship was built. That’s how [Stevens’s] trust was built with him.” Stevens and defendant had “their own relationship … that [Nugent] wasn’t really a part of … .” Chantelle Allison2 grew up with Nugent and had known Stevens for the 12 years the couple had been together. Nugent called Chantelle’s mother, Christa, “‘aunty’ or ‘aunt’.” In July 2022, Chantelle was living in Stevens’s car, which was parked in front of the RV. She lived there with her boyfriend of two years, Andrew Peralez, with whom she had a daughter. A man, identified by witnesses only as Sully, was also present in the RV at the time of the shooting. Sully was unavailable at either the preliminary hearing or trial.3 B. July 7, 2022, Incident On July 7, 2022, the night before the shooting, Stevens, Nugent, and defendant went to a motel sometime between 2 Because Chantelle Allison and Christa Allison share the same last name, we refer to them by their first names. 3 Although officers interviewed Sully on the day of the shooting, they were unable to locate him for the preliminary hearing, and according to the prosecutor’s opening statement, Sully was deceased at the time of trial. 3 9:00 p.m. and 11:00 p.m., where they spent the night doing drugs, including fentanyl, methamphetamine, marijuana, and Xanax. While Stevens and Nugent were being intimate, defendant put a gun to Stevens’s neck. The trio stayed at the motel until late the next morning. Christa spent the night at the RV watching over it for Stevens and Nugent. C. The Incidents of July 8, 2022 1. Defendant Threatens Chantelle and Peralez On the morning of July 8, 2022, Chantelle, who had spent the night elsewhere, returned to the RV before Stevens, Nugent, and defendant. She arrived with Peralez, her younger sister, and her oldest son, as they were planning to go to the beach after picking up Christa. While Chantelle was at the RV, Nugent telephoned her advising that “they had left behind a wallet” in the RV. Chantelle heard Stevens trying to calm Nugent down. While driving back to the RV, Stevens, Nugent, and defendant used marijuana, and Stevens and defendant also took Xanax. They returned to the RV at around 11:00 a.m. When Stevens, Nugent, and defendant returned, Chantelle was inside the RV, and Christa and Peralez were outside with the others. According to Peralez, Stevens appeared angry and scared, and he heard her tell Nugent that defendant had put a gun to her neck at the motel. Nugent responded, “‘I really thought [defendant] would do something,’” and “kind of … laughed.” Stevens replied, “‘What the [expletive], you’re stupid.’” Peralez observed that when defendant first returned to the RV, he “was tripping” and looked like he had been up all night. 4 He was saying “weird stuff that didn’t make [any] sense” and was “tripping about the wallet.” Chantelle noticed that defendant appeared as if he “hadn’t slept for days.” Chantelle explained that she was still in the RV when Stevens began bringing her items inside. After a few minutes, Chantelle walked outside where she remained until after the shooting. As soon as Chantelle stepped off the RV’s access ramp and was standing in the dirt area by the sidewalk, defendant appeared at the top of the ramp and demanded to search her purse. At first, she was agreeable, but when Peralez intervened on her behalf, she said, “No.” Defendant then pulled a handgun from his waistband and held it down at his side. At that point, Chantelle thought defendant “seemed like he felt disrespected … .” Chantelle relied, “‘What the [expletive], are you serious? You’re going to pull your gun on me?’” Christa, who had been on the phone but overheard the altercation, turned and saw defendant with his handgun out and directed at Chantelle. Peralez responded by getting up on the access ramp, between Chantelle and defendant, and said, “‘Chill, that’s my girl.’”4 Peralez stood in front of defendant, asking, “‘Why the [expletive] are you tripping?’” He then heard Nugent say, “‘I found it,’” at which point, defendant put the gun away.5 4 According to Peralez, defendant pointed the gun directly at Chantelle and, when Peralez got on the ramp between defendant and Chantelle, the gun was pointed directly at him. 5 Chantelle did not see defendant put the gun back in his waistband because she immediately walked away to be with her son in the car. 5  2. Shooting Inside the RV After defendant put his gun away, Christa followed him into the RV and asked, “‘Why did you do that?’” Defendant said he thought Nugent was being harmed. Christa asked him to apologize to Chantelle, but he did not respond. She then sat on the couch in the front living room area, and defendant sat in a chair next to the couch and said “weird things that didn’t make any sense.” Peralez was also in the front part of the RV, and Stevens and Nugent were in the back bedroom area. Christa was gathering her things for the trip to the beach and was not paying attention. When Peralez entered the RV, he gave Stevens about $150 to buy fentanyl. Christa and Sully were on the couch to his right and defendant was in a chair by the entry. Stevens went to bag the drugs in the back bedroom area where Nugent was standing by the bed. According to Nugent, she and Stevens were in the back bedroom area having “a very serious, important conversation.” Stevens was sitting “in front of her … desk” and Nugent was sitting facing her. During their conversation, defendant was behind Nugent speaking to Christa. Stevens got up to smoke a cigarette and asked Nugent to tell defendant to come back and talk to her. Nugent called out to defendant, and he came to the bedroom area and sat in the chair vacated by Stevens near the desk. Nugent, who was standing up, noticed the curtain that was usually available to separate the living quarters and bedroom was down. She found a blanket and was in the process of hanging it up, when she heard screaming. She turned toward Stevens who was standing with blood coming out of the side of her face. As Nugent went to Stevens, defendant 6 passed by her going toward the entryway. Stevens fell into Nugent’s arms, and Nugent fell to the floor. She screamed for Sully to call 911. According to Christa, she saw defendant go to the back bedroom area, which prompted Nugent to begin to put up a privacy sheet, and then almost immediately Christa heard gunfire. When she saw the sheet fall, she jumped up, and “went to the door to get out.” As she reached the door, Christa saw Stevens on the floor. Peralez explained that, as he waited for Stevens to bag his drugs, he saw defendant get up and go to the back bedroom area, at which point Nugent began putting up a sheet behind him. As the sheet went up around defendant, Peralez almost immediately heard a “bang” and Nugent scream. Then he saw defendant, with “a smirk on his face,” wipe the gun on the bottom of his shirt. Peralez screamed at defendant, asking, “‘Why did you do that?’” Nugent was holding Stevens in her arms when she heard footsteps and saw defendant to her right. She heard him drop the magazine from the gun, bend down to pick it up, and say, “‘I guess I’m on the run now.’” Nugent and Sully called 9116 and reported that Stevens had been shot in the head.7 6 The radio call reporting the shooting came in at 2:18 p.m. 7 According to the deputy medical examiner who conducted the autopsy on Stevens, she suffered a single gunshot wound that entered her right cheek near her ear and exited the back of her neck. The trajectory of the bullet was from “front to back, right to left, and [in a] slightly downward direction.” The bullet severed Stevens’s cervical spine causing “a very quick death.” Based on the stippling around the wound, the medical examiner 7 D. Post-Shooting Events 1. Pursuit of Christa’s Car Chantelle, who was outside the RV when the shot was fired, saw Christa run out of the RV “scared,” and heard her scream, “‘He shot [Stevens].’” Christa ran to her car while Chantelle went and pulled Peralez away from the RV’s entryway. Christa, Chantelle, Peralez, and the two children got into Christa’s car and drove away. As Christa drove, Chantelle tried to call 911. When Christa suddenly stopped the car, Peralez jumped out and began to run back to the scene. Chantelle followed and urged him to return. Then she saw defendant turn his car onto the street where they were parked. Chantelle and Peralez ran back, entered the car, and Christa sped off. Defendant followed them and made at least two attempts to pull alongside Christa’s car, but each time, Christa swerved to block his path. The chase lasted “a few minutes,” but defendant finally stopped pursuing them. 2. Conduct at Uncle’s Home Defendant drove to the home of his uncle, Pedro Rivas8, in North Hollywood. Security video from the home showed defendant arrive at the side gate of the home around 2:30 p.m. estimated that the gun was between two and 36 inches from Stevens’s face when it was fired. 8 Because Pedro Rivas and Casey Rivas share the same last name, we will refer to them by their first names. 8 with his shirt pulled over his head. He came around to the back of the home and tried to enter through a sliding glass door. Defendant’s cousin, Casey, was sitting at the kitchen table with his parents when defendant appeared at the door. Casey opened the door for defendant who was carrying an object in a bunched-up shirt. Defendant appeared incoherent, under the influence, and paranoid, saying something about people following him and “speaking nonsense.” He asked Casey if he could use a family car. Defendant also asked Casey for rubbing alcohol, and Casey brought back hydrogen peroxide and gave it to him. Defendant poured it on the shirt in his hand, soaking it; in the process, he poured the liquid “all over the floor … .”9 Defendant then went into the bathroom where he stayed for “a while” and, when he came out, he asked Casey for a shirt. Casey brought him one, which he put on, and “at that point[, Casey began] forcing him out of the house” because of concern about his behavior. Defendant left but returned a short while later to retrieve his cell phone. Casey denied defendant access to the home, but retrieved his phone, gave it to him, and he left. Police located and arrested defendant. They also recovered defendant’s car from the location he parked it on a street near his uncle Pedro’s house. They did not find a gun in the car and were unable to locate the murder weapon. 9 Defendant’s uncle Pedro saw the grip of a handgun exposed from the bunched-up shirt when defendant was pouring the hydrogen peroxide over it. 9  3. Jailhouse Call Following his arrest, defendant made a call to “Giselle” on August 13, 2022, while in custody. Police recorded the short conversation during which defendant explained, “‘I need to get my discovery to see who said what, who’s going to show up for court. It will show me what they got, if they got a weapon, you know?’” In response, Giselle asked, “‘So you don’t know if they have a weapon or anything?’” Defendant replied, “‘Nah, I don’t know. I really don’t know if they got it or not. They might not have it, you know what I mean? I really don’t want to be talking about that [expletive] on the phone.’” III. PROCEDURAL BACKGROUND The Los Angeles County District Attorney charged defendant by information with murder in violation of Penal Code section 187, subdivision (a)10 and alleged that, in the commission of the offense, defendant personally used a firearm within the meaning of section 12022.5, subdivision (a). The District Attorney further alleged that defendant had suffered two violent or serious felony convictions within the meaning of sections, 667, subdivisions (b) through (j) and 1170.12. The jury found defendant not guilty of first degree murder, but found him guilty of second degree murder and found the firearm allegation true. The trial court subsequently found the strike allegations true and also found three aggravating factors true. 10 All further statutory references are to the Penal Code. 10  The trial court sentenced defendant to an aggregate term of 45 years to life. Defendant filed a timely notice of appeal. IV. DISCUSSION A. Substantial Evidence of Malice Defendant contends that his conviction for second degree murder must be reversed because there was insufficient evidence that he acted with the required express or implied malice. 1. Legal Principles and Standard of Review The jury found defendant guilty of second degree murder. “Section 187, subdivision (a), defines murder as ‘the unlawful killing of a human being, or a fetus, with malice aforethought.’ … Murder is divided into first and second degree murder. (§ 189.) ‘Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. [Citations.]’ [Citation.] “… [T]he crime of murder, as defined in section 187, includes, as an element, malice. [Former s]ection 188 defines malice. It may be either express or implied. It is express ‘when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.’ ([Former] § 188.) It is implied ‘when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.’ (Ibid.)” (People v. Chun (2009) 45 Cal.4th 1172, 1181.) 11  In reviewing defendant’s challenges to the sufficiency of the evidence, “[w]e ‘“‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’”’ [Citation.] … ‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.’ [Citation.]” (People v. Brooks (2017) 3 Cal.5th 1, 57.) Our “role on review does not involve a reevaluation of the evidence. Rather, ‘we presume the existence of every fact in support of the verdict that could reasonably be inferred from the evidence.’ [Citation.]” (Id. at p. 58.) 2. Analysis On the express malice element, defendant maintains that there was “no sufficient evidence of intent to kill.” According to defendant, the evidence of his relationship with Stevens showed that he harbored no ill will towards her and “no witness testified to any animosity between [defendant] and [Stevens].” “Express malice requires a showing that the assailant ‘“‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 739.) “‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the [crime], including the defendant’s actions. [Citation.]” (Id. at p. 741.) 12  Here, it is undisputed that defendant fired the single gunshot that killed Stevens. The evidence showed that he shot Stevens while they were in the close quarters of the RV’s bedroom area. Based on the stippling around the wound, the medical examiner estimated that defendant fired the shot from extremely close range, between two and 36 inches. The bullet entered the side of Stevens’s face, traveled from right to left at a downward angle, and severed her cervical spine before exiting the back of her neck, killing her quickly. That evidence was sufficient to show that defendant intended to kill Stevens or knew to a reasonable certainty that his action would result in her death. (People v. Manibusan (2013) 58 Cal.4th 40, 88 [“the fact the victim was shot in the head can support an inference of an intent to kill”]; People v. Mendoza (2011) 52 Cal.4th 1056, 1071 [“a single shot to the head might support the inference of a deliberate intent to kill”].) Defendant’s conduct, both before and after the killing, was also consistent with an intent to kill. The night before the shooting, defendant put a gun to Stevens’s neck at the motel. When Stevens returned to the RV the next day, she told Peralez about the incident and appeared angry and scared. Shortly before the shooting, defendant pulled his gun and pointed it at both Chantelle and Peralez. Defendant’s threatening conduct involving his handgun before the shooting was consistent with his subsequent intent to kill. Following the incident, defendant did not express surprise or regret about the gun discharging. Instead, he wiped off the gun and had a smirk on his face, conduct which belied any inference that the shooting was unintentional. Similarly, defendant did not remain at the scene to render aid or explain 13 the gun’s discharge; he left almost immediately without showing any remorse, telling Nugent that he would now be “on the run.” As he left the scene, defendant came upon Christa and her group and began to chase them, making more than one attempt to pull alongside their vehicle before giving up the pursuit, a reaction that supported an inference the shooting was intentional and he was concerned there were eyewitnesses. At his uncle’s house, he kept the gun hidden in the bunched-up shirt, and he used hydrogen peroxide to soak both the shirt and gun. He did not discuss the shooting or attempt to explain the circumstances of the gun’s discharge. He also asked his cousin for a car despite having arrived in his own vehicle. All of that conduct upon leaving the scene supported an inference that he was either trying to intimidate witnesses or avoid detection. Finally, after he was arrested, defendant had a jailhouse call during which he indicated that he did not know if the police had recovered the handgun and stated that he was uncomfortable speaking about the gun on a jail phone, statements which showed a consciousness of guilt. Thus, the additional evidence of defendant’s conduct preceding and following the shooting further supported a reasonable inference that he intended to shoot Stevens in the face at close range, kill her, and avoid the consequences of his actions. B. Instruction on Involuntary Manslaughter Defendant contends the trial court erred when it found there was insufficient evidence to support his proffered instruction on involuntary manslaughter. He argues the evidence supported two theories: (1) accidental shooting while 14 brandishing a firearm; and (2) unintentional homicide during the course of a noninherently dangerous felony. 1. Background During the jury instruction conference, defendant’s trial counsel requested an instruction on involuntary manslaughter under CALCRIM No. 580 arguing that there was evidence that the shooting occurred accidentally during the commission of possessing a loaded firearm in violation of section 25850, subdivision (a). The trial court concluded, “[T]here is no substantial or sufficient evidence that’s been presented here at this point, and therefore, [the court] is not going to give that instruction. [¶] Mostly the arguments at this juncture have been based on speculation, so that is the ruling of the court.” 2. Legal Principles “‘A trial court has a sua sponte obligation to instruct the jury on any uncharged offense that is lesser than, and included in, a greater charged offense, but only if there is substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense.’” [Citation.]” (People v. Rangle (2016) 62 Cal.4th 1192, 1224–1225.) “Generally, involuntary manslaughter is a lesser offense included within the offense of murder.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) Section 192 defines manslaughter as “the unlawful killing of a human being without malice.” Subdivision (b) provides that a manslaughter is involuntary when the killing without malice occurs “in the commission of an unlawful act, not amounting to a felony; or in the commission of a 15 lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) In People v. Burroughs (1984) 35 Cal.3d 824, the court recognized a third form of involuntary manslaughter when the killing without malice occurs “in the course of a noninherently dangerous felony” if that felony “is committed without due caution and circumspection.” (Id. at p. 835; see People v. Butler (2010) 187 Cal.App.4th 998, 1007 (Butler).) As defined, each form of involuntary manslaughter requires negligence. (Butler, supra, 187 Cal.App.4th at p. 1007 [“criminal negligence is the governing mens rea standard for all three forms of committing the offense”].) “[A]n act is criminally negligent when a man of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm. The risk of death or great bodily harm must be great.” (People v. Rodriguez (1960) 186 Cal.App.2d 433, 440.) “Involuntary manslaughter, like other forms of homicide, also requires a showing that the defendant’s conduct proximately caused the victim’s death.” (Butler, supra, 187 Cal.App.4th at p. 1009.) 3. Analysis Defendant’s first theory of involuntary manslaughter, a killing without malice that occurred during a misdemeanor brandishing of a firearm, was not supported by substantial evidence. Section 417, subdivision (a)(2)(A) provides, “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or 16 unloaded, in a rude, angry, or threatening manner …” is guilty of a misdemeanor. Here, there was no evidence that defendant, while in the back of the RV with Stevens, exhibited his gun or drew it in any manner other than to aim at and shoot Stevens in the face. Indeed, none of the witnesses who were in the RV at the time of the shooting stated or implied that defendant was brandishing the firearm just before the shooting. To the contrary, each of them was startled by the gunshot. Defendant’s second theory of involuntary manslaughter—a killing without malice that occurred during the commission of the noninherently dangerous felony of carrying a loaded weapon in violation of section 25850—was also unsupported by the evidence. Among other requirements, that theory requires evidence supporting an inference that defendant acted negligently while carrying the loaded firearm causing the death of Stevens. (See People v. Cox (2000) 23 Cal.4th 665, 673 [misdemeanor battery form of involuntary manslaughter “‘requires that the unlawful act causing death be committed “through criminal negligence”’”]; see also People v. Penny (1955) 44 Cal.2d 861, 868 [to constitute involuntary manslaughter, the commission of the criminal act must have a causal connection with victim’s death].) As explained, there was no evidence that defendant took any overt action just prior to the shooting, much less that he handled the loaded firearm in a negligent manner causing the death of Stevens. After defendant put the gun back in his waistband following his altercation with Chantelle, no witness saw him with the firearm in the RV prior to the shooting. And there was no testimony that he made any movements related to the firearm in the moments before the shooting, such as reaching 17 toward his waistband or stumbling and losing his balance. Thus, there was nothing to support an inference that defendant somehow mishandled the firearm while in the back of the RV causing it to unintentionally discharge. Given the evidence, the trial court did not err in refusing to instruct the jury on involuntary manslaughter. C. Instruction on Accident Defendant also maintains that the trial court erred when it refused to instruct on accident. According to defendant, “there is substantial evidence that the gun went off by accident.” We disagree. 1. Background Defendant’s counsel also requested an instruction on accident using CALCRIM No. 510.11 Counsel argued that the 11 CALCRIM No. 510 on excusable homicide based on accident provides: “The defendant is not guilty of (murder/ [or] manslaughter) if: “1. The defendant killed someone by accident and misfortune or while doing a lawful act in a lawful way; “2. The defendant was acting with usual and ordinary caution; [¶] AND “3. The defendant was acting without the necessary mental state for (murder/ [or] manslaughter). “A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation. “The People have the burden of proving beyond a 18 facts supported the instruction, including (1) no witness saw Stevens get shot, only her falling to the ground, and no one knew what happened in the one to two seconds that elapsed between those events; (2) the RV was crowded and cluttered, with no more than a foot or two separating the six adult occupants, one of whom was armed with a loaded weapon; and (3) the fact that only a single shot was fired suggested that the gun discharged accidentally. The prosecutor objected to the instruction, explaining that it required evidence that defendant was acting lawfully and was not negligent and there was no evidence on either of those elements. The trial court declined to give the instruction, explaining that it would instruct with CALCRIM No. 520 which adequately covered the elements of murder. According to the court: “If the accident was an element, it would have been listed as such. It is a nonexistent element, and it is a nonexistent element in this situation because under the facts of this situation, the jury instruction, [CALCRIM No.] 520, covers the issue. [¶] And certainly you’re permitted to argue [accident] all the way through.” 2. Legal Principles “In the context of the law of homicide, a killing through accident or misfortune is excusable and is not a crime. (§ 195, subd. 1.) For a killing to be ‘accidental,’ a defendant must act reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter).” 19 without negligence. (§ 195, subd. 1; see People v. Villanueva (2008) 169 Cal.App.4th 41, 54 & fn. 12.)” (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1138.) In People v. Anderson (2011) 51 Cal.4th 989, the court explained that there is no sua sponte duty to instruct on accident because that theory is not an affirmative defense, but rather a means to negate or rebut the prosecution’s proof of the mental element of the crime charged, that is, evidence the defendant acted without the necessary mental state. (Id. at pp. 996–998.) Thus, in a murder case, a court only has a duty to instruct on accident if the trial record contains evidence supporting an inference that the killing was unintentional and defendant did not act negligently. (See, id. at p. 998.) 3. Analysis There was no evidence that, at the time the gun discharged, defendant was acting with care and caution. To the contrary, the medical examiner’s evidence supported an inference that, just before the gun discharged, defendant had produced it and pointed it at the side of Stevens’s face from a distance of no more than three feet, which is not the conduct of a cautious and careful person. Also, as noted, there was no evidence to support an inference that the gun discharged accidentally or that, in pulling the gun out and pointing it directly at Stevens’s face in a slightly downward direction, defendant had a nonlethal and lawful intent. Defendant emphasizes that no witness saw the moment when defendant pulled the gun and pointed it directly at Stevens’s face and that only one shot was fired, arguing that each 20 suggests an unintentional discharge. But neither fact supports a reasonable inference that the gun discharged accidentally. His accident theory therefore lacks factual support and is based on speculation. And, although defendant insists that there was no evidence of his intent to kill, as we have explained, substantial evidence supported a finding that defendant intended to kill Stevens. We conclude the trial court did not err by refusing to instruct with CALCRIM No. 510. D. Abstract of Judgment Defendant asserts the abstract of judgment must be corrected because it mistakenly reflects a $300 restitution fine under section 1202.4 that was not orally imposed by the trial court. He also maintains that the $300 parole revocation fine imposed by the court under section 1202.45 should be stricken. The Attorney General agrees. Based on our review of the transcript of the sentencing hearing, it appears the parties stipulated that defendant lacked the ability to pay the $300 restitution fine under section 1202.4, and the court did not impose that fine. The restitution fine reflected in the abstract of judgment should therefore be deleted. We also conclude that the trial court should not have imposed the parole revocation fine under section 1202.45. Under that section, when a court imposes a restitution fine under section 1202.4, and the sentence includes a period of parole, a parole revocation fine must also be imposed and suspended in the same amount as the section 1202.4 restitution fine. (People v. Smith (2001) 24 Cal.4th 849, 852.) Here, as noted, the court did 21 not impose a restitution fine in any amount and therefore it should not have imposed the parole revocation fine under section 1202.45. The abstract of judgment must be modified by deletion of both the $300 restitution fine under section 1202.4 and the $300 parole revocation fine under section 1202.45. 22  V. DISPOSITION The judgment of conviction is affirmed and the matter is remanded with instructions to modify the abstract of judgment by deleting the $300 restitution fine under section 1202.4 and the $300 parole revocation fine under section 1202.45. The trial court is directed to issue an amended abstract of judgment reflecting these modifications and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS KIM (D.), J. We concur: HOFFSTADT, P. J. MOOR, J. 23