Filed 8/14/20 P. v. Dodd CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072051
v. (Super.Ct.No. FSB1401994)
DAVID WADE DODD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Affirmed in part; reversed in part with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Steve Oetting, Kristen Ramirez and Matthew Mulford, Deputy Attorneys General, for
Plaintiff and Respondent.
1 On May 26, 2017, defendant and appellant David Wade Dodd was convicted by a
jury of assault with a firearm. (Pen. Code,1 § 245, subd. (a)(2).) The jury also found that
he personally used a firearm in the commission of the offense.2 (§ 12022.5, subds. (a),
(d).) In a bifurcated proceeding, the trial court found that defendant had suffered two
prior serious or violent felony convictions under the three strikes law (§§ 667,
subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d)) and had served five prior prison terms
(§ 667.5, subd. (b)). On January 18, 2019, the court sentenced defendant to state prison
for 25 years to life, plus 24 years.
Defendant appeals contending (1) the trial court erred in denying his motion for
mistrial based on alleged prosecutorial misconduct;3 (2) the trial court erred in instructing
the jury with CALCRIM Nos. 362, 371, and 372 because they allow irrational permissive
inferences in violation of the due process guarantees of the state and federal Constitutions;
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Defendant was also charged with attempted murder (§§ 664, 187), kidnapping (§ 207, subd. (a)), and corporal injury of a cohabitant or significant other (§ 273.5, subd. (a)). However, he was acquitted of attempted murder and kidnapping. The corporal injury charge, as well as the lesser included offense of attempted voluntary manslaughter, were dismissed after the trial court declared a mistrial.
3 “Because we consider the effect of the prosecutor’s action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct.” (People v. Crew (2003) 31 Cal.4th 822, 839.) Indeed, the “‘term prosecutorial “misconduct” is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.’” (People v. Centeno (2014) 60 Cal.4th 659, 666-667.)
2 (3) the trial court abused its discretion in denying his Romero4 motion and refusing to
strike the prior serious felony enhancements under section 667, subdivision (a);
(4) defendant’s sentence constitutes cruel and unusual punishment; (5) the imposition of
the court operations fee and the criminal conviction assessment without a determination of
his ability to pay violated his due process right as articulated by People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas); (6) execution of the restitution fine should be stayed due
to defendant’s indigence; and (7) defendant’s four5 one-year enhancements for his prior
prison terms should be stricken based on newly enacted Senate Bill No. 136 (2019-2020
Reg. Sess.). The People concede the four one-year enhancements should be stricken, and
we agree. Otherwise, we reject defendant’s contentions.
I. PROCEDURAL BACKGROUND AND FACTS
On the morning of June 12, 2012, San Bernardino Police officers responded to
shots fired near an auto body and paint shop. In the alleyway behind the shop, officers
observed a pickup truck6 occupied by M.A. M.A. told the officers that she and
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
5 The trial court found that defendant had served five prior prison terms (§ 667.5, subd. (b)): two for convictions for felon in possession of a firearm, two for receiving stolen property, and one for a conspiracy conviction. With the prosecution’s acquiescence, the court struck the prior prison term allegation involving one of the receiving stolen property convictions because it had been reduced to a misdemeanor. Thus, the court imposed four one-year enhancements under section 667.5, subdivision (b).
6 The truck was registered to both M.A. and defendant.
3 defendant, her boyfriend at the time,7 had been arguing at her home while she was
leaving for work. As she entered the truck, defendant forced himself into the driver’s
seat and pushed her to the passenger side. He drove to the alleyway and stopped. M.A.
exited the truck, jumped into its bed, and armed herself with a hammer. Defendant also
exited the truck with a gun and pointed it at her. He said, “I’ll shoot you,” and “I’ll cap
you, bitch.” Defendant fired a few rounds at M.A. and then left the scene. The owner of
the body shop called 911 while his son video recorded the incident.
Weeks later, a police officer stopped defendant in the truck and found a loaded
gun, with eight rounds of .22-caliber ammunition, in the driver’s side door panel.
Subsequent testing determined the cartridge case located in the alleyway had been fired
from the gun found in the truck.
In August 2014, a search of M.A.’s residence produced letters addressed to her
from defendant. In one letter, defendant wrote: “‘The story is this for the shooting
incident: Unknown dude tried to take the truck that day so you ran out there, jump in the
back. He drove to that alley, got out and said he was getting the truck for me, and he shot
in the bed of the truck trying to scare you but never ever did he point the gun at you.
Some heated words were exchanged. You thought I was at Sophie. That’s why you sent
the cops there. Other individuals got arrested for unrelated charges.’” In other letters,
defendant wrote a list of names of people, including M.A., who could not come to court.
7 The two were married in 2015.
4 Officer-monitored jail calls between defendant and M.A. were played for the jury.
During one conversation, the following exchange occurred:
“[DEFENDANT]: I know we got to stop that extreme shit because that’s the only
reason I got busted. You know that right?
“[M.A.]: Mmm hmm.
“[DEFENDANT]: Me trying to make you dance in the back of the truck, huh?
“[M.A.]: Yep.
“[DEFENDANT]: (Laughing) Hey, I told you, ‘Dance bitch, dance’ huh?
“[M.A.]: Yep. [¶] . . . [¶] And I said, ‘No. Shoot me!’
“[DEFENDANT]: Bam bam, huh?
“[M.A.]: (Laughing) [¶] . . . [¶]
“[DEFENDANT]: . . . Did I scare you? You, you, you didn’t think I was gonna
pull the trigger, huh?
“[M.A.]: Yeah, I knew you would.
“[DEFENDANT]: Huh? I wasn’t trying to shoot you though. (Pause) You know
that, right? Huh?
“[M.A.]: Sure.
“[DEFENDANT]: You know that. If I was trying to shoot you, I would have shot
ya.”
5 II. DISCUSSION
A. The Trial Court Properly Denied Defendant’s Motion for Mistrial.
Defendant contends the trial court erred in denying his motion for mistrial, which
was based on prosecutorial error. We conclude there was no prosecutorial error, and
therefore no basis for defendant’s motion for mistrial.
1. Additional background facts.
Prior to trial, defendant moved, in limine, to exclude any evidence or reference to
his prior arrests or convictions. The prosecutor agreed to delete references to probation
or other aspects of defendant’s criminal history in the recordings of defendant’s jailhouse
phone calls. However, the recording of defendant’s June 20, 2012, phone call with M.A.
included a discussion about defendant’s probation status:
“[DEFENDANT]: . . . Are you gonna come see me?
“[M.A.]: I can’t because they wouldn’t let me schedule an appointment because
they said you had court today, but since they dropped them charges, you don’t have court.
“[DEFENDANT]: I know. So, did, what does it say on the computer?
“[M.A.]: Release.
“[DEFENDANT]: Huh?
“[M.A.]: It says release.
“[DEFENDANT]: Oh, so they’re gonna release me?
“[M.A.]: Cause that’s, cause that’s . . . no, because they just. It says release for
those charges, but you still have the probation hold, no bail.
6 “[DEFENDANT]: Oh, ok. Yeah, somebody needs to call my probation officer
and tell him what’s up. You know what I mean? Cause the cops tried to call, the cops
called me down there yesterday after I talked to you. The cops called me down there and
the cop that arrested me, uh Keil or whatever. And he said look, ‘I’ve been trying to get
ahold of probation because this is bogus and you shouldn’t even be in jail right now.’ He
says, ‘I’ve been trying to get ahold of them and to pull their charges off you.’ He goes
uh, ‘You’ll probably do a 10 day flash.’ But you just got to call probation and tell them
look, he’s gonna lose his job. Have [J.] call them or whatever. You know what I mean?”
Toward the end of the call, defendant again referenced probation, saying, “Now
that I’m not going to court, what are they gonna do? Call the Probation Department and
get on them.” M.A. replied, “I will.”
Immediately after the recording was played, defense counsel asked to address the
trial court outside the presence of the jury. He explained that he had previously spoken
with the prosecutor and understood that the jailhouse phone calls would be redacted to
eliminate any reference to probation and prior criminal history. Defense counsel
announced his intention to move for mistrial. In response, the prosecutor asserted she
had no malicious intent, and represented that she had sent the jailhouse phone call
transcripts to defense counsel, and that counsel said, “I don’t see anything specifically in
[these] transcripts.” The court reserved ruling on the issue and trial resumed.
The following week, the trial court raised the issue outside the presence of the
jury, and defense counsel moved for a mistrial. He explained there were five jailhouse
phone call recordings—three involving M.A. were introduced at trial—and he admitted
7 he might have mistakenly believed the discussions regarding defendant’s probation were
on the two recordings that were not offered at trial. However, defense counsel asserted
that he had prior conversations with the prosecutor during which he informed her that any
recordings referencing defendant’s probation status needed to be redacted before they
were played for the jury. In response, the prosecutor stated that she had sent defense
counsel the transcripts of the three recordings that were played for the jury, and defense
counsel indicated the transcripts looked “fine.” The prosecutor added the reference to
probation was brief and insignificant compared to the other damaging evidence against
defendant.
The trial court agreed the comments regarding probation should not have been
admitted; however, it denied the mistrial motion on the grounds the comments were brief
and did not irreparably damage defendant’s right to a fair trial when considered in the
context of the remaining evidence submitted against him. The court offered to admonish
the jury to disregard the references to defendant’s probation status, but defense counsel
declined for tactical reasons, stating that he did not want to draw further attention to the
subject. The court directed the prosecutor to redact the recording of the jailhouse phone
call in case the jury wished to review it during deliberations.
2. Applicable legal principles.
“[W]e review a ruling on a motion for mistrial for an abuse of discretion, and such
a motion should be granted only when a party’s chances of receiving a fair trial have been
irreparably damaged. In turn, ‘“[t]he applicable federal and state standards regarding
prosecutorial misconduct are well established. ‘“A prosecutor’s . . . intemperate behavior
8 violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that
it infects the trial with such unfairness as to make the conviction a denial of due
process.’”’ [Citation.] Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the
use of deceptive or reprehensible methods to attempt to persuade either the court or the
jury.’”’”’” (People v. Ayala (2000) 23 Cal.4th 225, 283-284.)
“‘To preserve for appeal a claim of prosecutorial misconduct, the defense must
make a timely objection at trial and request an admonition; otherwise, the point is
reviewable only if an admonition would not have cured the harm caused by the
misconduct.’” (People v. Silva (2001) 25 Cal.4th 345, 373.) However, “[e]ven assuming
for purposes of argument that the prosecutor’s actions constituted misconduct, we may
not reverse the judgment if it is not reasonably probable that a result more favorable to
the defendant would have been reached in its absence.” (People v. Barnett (1998)
17 Cal.4th 1044, 1133.)
3. Analysis.
Here, defendant’s claim of prosecutorial error is based on the prosecutor’s duty to
guard against “the inadvertent disclosure of [defendant’s] probation status.” According
to the record, the prosecutor did just that when she sent defense counsel the transcripts of
the three jailhouse phone call recordings that were played for the jury, and defense
counsel indicated the transcripts looked “fine.” Because the prosecutor did not purposely
introduce the information (and defense counsel mistakenly believed the discussions
regarding defendant’s probation were on the recordings not offered at trial), this case is
9 distinguishable from People v. Parsons (1984) 156 Cal.App.3d 1165, where the
prosecutor acted in bad faith by inquiring about an unrelated arrest, and People v. Bentley
(1955) 131 Cal.App.2d 687, overruled on another ground in People v. White (1958) 50
Cal.2d 428, 430-431, where a police officer intentionally testified the defendant was a
suspect in another case, on which defendant relies. (Cf. People v. Scott (1997) 15 Cal.4th
1188, 1218 [“Although it is misconduct for a prosecutor intentionally to elicit
inadmissible testimony [citation], merely eliciting evidence is not misconduct.”].)
Assuming arguendo the prosecutor did commit error, this was not such an extreme
example of prosecutorial error that striking the disclosure of defendant’s probation status
and instructing the jury to disregard it would not have cured any error. (People v. Valdez
(2004) 32 Cal.4th 73, 123 [prosecutorial error claim premised on prosecutor eliciting
testimony designed to reveal defendant’s prior conviction forfeited where an admonition
would have cured any prejudice].) Nonetheless, when the trial court indicated it would
not grant the mistrial motion but would admonish the jury to disregard the references to
defendant’s probation status, defense counsel declined, making a tactical decision not to
draw further attention to the subject. We reject defendant’s claim that the error in the
disclosure of defendant’s probation status was “so egregious that instruction of the jury
would be futile.” The reference to defendant’s probation status was brief, there was no
reference to the nature of his prior conviction (including whether it was a felony or a
misdemeanor), and no other potentially damaging details of his criminal history were
disclosed.
10 In any event, “[w]hether or not it was an abuse of discretion to deny the defense’s
motion for mistrial, we conclude any error was harmless.” (People v. Harris (1994)
22 Cal.App.4th 1575, 1581 (Harris) [denial of mistrial motion is harmless when evidence
of defendant’s guilt is “overwhelming and undisputed”].) “There is little doubt exposing
a jury to a defendant’s prior criminality presents the possibility of prejudicing a
defendant’s case and rendering suspect the outcome of the trial.” (Id. at p. 1580.)
However, in this case, the brief reference to defendant’s probation status does not appear
to have had a prejudicial “impact on the outcome of the trial,” as asserted by defendant.
Although defendant was charged with attempted murder, kidnapping, corporal injury of a
cohabitant or significant other, and assault with a firearm, the jury only convicted him of
assault with a firearm. The verdict indicates the jury considered the counts individually
and the evidence carefully, and that it was not so inflamed by the reference to defendant’s
probation status that it convicted him on that basis.
As to the assault with a firearm charge, there was overwhelming evidence to
support the conviction. The evidence against defendant included: (1) M.A.’s initial
report that defendant produced a gun, pointed it at her, and said, “I’ll shoot you” and “I’ll
cap you, bitch”; (2) witness reports of a male firing at the victim; (3) a 911 call in which a
male is heard exclaiming, “[H]e’s got the gun, he’s gonna kill the, the lady,” and “Yeah,
he’s shooting the lady”; (4) defendant’s acts of fleeing, hiding, giving a false name,
11 writing letters to M.A. urging her to lie about the events, and identifying people who
should not appear at court to testify against him; (5) defendant’s admission during a
jailhouse phone call that he pointed a gun at M.A. and fired shots while telling her,
“Dance bitch, dance”; and, (6) the fact the loaded gun taken from defendant’s truck was
the source of cartridge casings found in the alleyway.
Given the ample evidence to support the jury’s verdicts, it is not reasonably
probable defendant would have obtained a more favorable result had the reference to his
probation status not been made. (Harris, supra, 22 Cal.App.4th at p. 1581; see People v.
Williams (1981) 115 Cal.App.3d 446, 453 [“In light of the admission of the prior offenses
as well as other substantial evidence pointing to defendant’s identity as the perpetrator, it
is not reasonably probable that he would have obtained a more favorable result had the
remark about his parole status not been made.”].)
12 B. CALCRIM Nos. 362, 371, and 372.
Defendant contends the three “consciousness of guilt” instructions under
CALCRIM Nos. 362 (false statements), 371 (suppression/fabrication of evidence), and
372 (flight) allowed the jury to draw irrational inferences of guilt in violation of the due
process guarantees of the state and federal Constitutions.8 He further asserts these
instructions allowed the jury to infer guilt in a manner that “run[s] afoul of the
constitutional limitation noted by the Ninth Circuit” in Turner v. Marshall (9th Cir. 1995)
8 As provided to the jury, CALCRIM No. 362 stated: “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.” As provided to the jury, CALCRIM No. 371 stated, in part: “If the defendant tried to hide evidence . . . against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. . . .” As provided to the jury, CALCRIM No. 372 stated: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
13 63 F.3d 807, 820, overruled on other grounds by Tolbert v. Page (9th Cir. 1999) 182 F.3d
677, 685.9 We disagree.
“‘In considering a claim of instructional error we must first ascertain what the
relevant law provides, and then determine what meaning the instruction given conveys.
The test is whether there is a reasonable likelihood that the jury understood the
instruction in a manner that violated the defendant’s rights.’ [Citation.] We determine
the correctness of the jury instructions from the entire charge of the court, not from
considering only parts of an instruction or one particular instruction.” (People v. Smith
(2008) 168 Cal.App.4th 7, 13.) “‘Errors in jury instructions are questions of law, which
we review de novo.’” (People v. Fenderson (2010) 188 Cal.App.4th 625, 642.)
Here, CALCRIM Nos. 362, 371, and 372 permit, but do not require, the jury to
infer from a defendant’s flight, knowingly false or misleading statements, or suppression
of evidence pertaining to the crime, that he was aware he was guilty of the offense. A
permissive inference “leaves the trier of fact free to credit or reject the inference and does
not shift the burden of proof.” (County Court v. Allen (1979) 442 U.S. 140, 157.)
Consequently, “[i]nstruction on an entirely permissive inference is invalid as a matter of
due process only if there is no rational way the jury could draw the permitted inference.”
(People v. Pensinger (1991) 52 Cal.3d 1210, 1243-1244.)
9 Defendant’s reliance on Turner v. Marshall, supra, 63 F.3d at p. 820, a case concerning inconsistent statements as evidence of consciousness of guilt, is of no help to defendant because the challenged instructions do not state that flight, knowingly false or misleading statements or suppression of evidence pertaining to the crime “constitute evidence of guilt.” (Ibid.) Rather, they merely state the jury may consider such evidence to establish he was “aware of his guilt.” (CALCRIM 371.)
14 A defendant’s alleged consciousness of guilt is well-established as a relevant
consideration for the jury. (People v. Holloway (2004) 33 Cal.4th 96, 142; People v.
Ashmus (1991) 54 Cal.3d 932, 977, overruled on another ground in People v. Yeoman
(2003) 31 Cal.4th 93, 117; People v. Williams (2000) 79 Cal.App.4th 1157, 1168.)
Nonetheless, defendant complains that the “inference of guilt is unreasonable because it
is not more likely than not that one who flees or tries to hide incriminating evidence or
makes a false statement is guilty of the charged offense.” He suggests that “[a] person
who is a suspect in a crime, even if innocent, has a motivation to exculpate himself, even
by means of flight, evidence suppression or lying.” Thus, he claims the “more logical
inference is merely fear of prosecution or conviction.”
Defendant’s complaint is misplaced because the consciousness of guilt
instructions provide equally for these possibilities. They caution the jury that a lie or
attempt at concealment merely “may show” a consciousness of guilt and that the jury
“may” consider or reject the lie or concealment as probative because “it is up to you to
decide its meaning and importance.” (CALCRIM Nos. 362, 371, 372.) The instructions
also provide that evidence of a deliberate lie or attempt to conceal evidence “cannot
prove guilt by itself.” (Ibid.) The instructions must be read as a whole, and CALCRIM
No. 224 instructs the jury that where two or more reasonable conclusions may be drawn
from circumstantial evidence, they must accept the one pointing to the defendant’s
innocence. In any event, because an inference of a consciousness of guilt from a material
lie or concealment of evidence is not illogical, defendant’s due process challenge fails.
(People v. Pensinger, supra, 52 Cal.3d at pp. 1243-1244.)
15 Defendant acknowledges our Supreme Court has repeatedly approved
consciousness of guilt instructions. (E.g., People v. Moore (2011) 51 Cal.4th 386, 413-
414 [CALJIC No. 2.03 (false statements)]; People v. Howard (2008) 42 Cal.4th 1000,
1020-1021 [CALJIC No. 2.52 & CALCRIM No. 372 (flight)], 1024-1025 [CALJIC No.
2.03 & CALCRIM No. 362 (false statements)]; People v. Coffman and Marlow (2004) 34
Cal.4th 1, 101-102 [CALJIC Nos. 2.04 (fabricating evidence) & 2.06 (suppressing
evidence)].) He contends, however, that unlike their CALJIC counterparts, the
CALCRIM instructions here used the phrase “aware of his guilt” instead of
“consciousness of guilt.” Thus, he asserts the instructions go beyond telling jurors that
flight, false statements, or suppression of evidence may be considered as indicative of
consciousness of guilt. According to defendant, “[t]he phrase ‘aware of his guilt’ leaves
no room for a conclusion that the defendant was not guilty.”
We are not persuaded by the distinction. An identical argument concerning
CALCRIM No. 372 was rejected in People v. Hernandez Rios (2007) 151 Cal.App.4th
1154, 1158-1159 (Hernandez Rios). As Hernandez Rios explained, an “etymological
analysis” based on dictionary definitions of the words “‘aware’” and “‘[c]onscious’”
demonstrates the words are not so dissimilar in meaning to raise a due process claim.
Instead, both properly “allow[] a jury to infer from a flight instruction . . . ‘guilt
consciousness’ (in the syntax of the dictionary) or ‘consciousness of guilt’ (in the syntax
of the California Supreme Court).” (Id. at pp. 1158-1159.) Finding no significant
difference between the phrasing of the two instructions, the appellate court held that
CALCRIM No. 372 passes “constitutional muster.” (Hernandez Rios, at pp. 1158-1159;
16 accord, People v. Price (2017) 8 Cal.App.5th 409; People v. Paysinger (2009)
174 Cal.App.4th 26, 29-32; People v. McGowan (2008) 160 Cal.App.4th 1099, 1104
[“[a]lthough there are minor differences between CALJIC No. 2.03 and CALCRIM
No. 362 [citation], none is sufficient to undermine our Supreme Court’s approval of the
language of these instructions”]; People v. Burton (2018) 29 Cal.App.5th 917, 923-926
[“reject[ing] the claim that CALCRIM No. 362 as drafted is [constitutionally] infirm”].)
While defendant disagrees with Hernandez Rios, he offers no compelling reason to depart
from its holding. We find the reasoning of Hernandez Rios persuasive and adopt it here.
In short, we conclude all three instructions were properly read to the jury, and
none created an impermissible inference or lessened the prosecutor’s burden of proof.
C. The Trial Court Properly Denied Defendant’s Romero Motion and Refused
to Strike His Prior Serious Felony Enhancements.
Defendant contends the trial court abused its discretion in denying his request to
dismiss one of his two prior strike convictions (Romero motion) as well as strike one or
both of the prior serious felony enhancements under section 667, subdivision (a). We
disagree.
At sentencing, defendant requested the trial court dismiss one or both of his prior
strike convictions—one for first degree burglary in 1988 and one for first degree burglary
in 1998—and strike his prior serious felony enhancements. Admitting that he had a
lengthy criminal history, defendant argued that (1) the victim in the current offense was
his wife, who was not injured by his actions and did not want him prosecuted, (2) his
17 current offense did not involve assaultive contact or injury, and (3) his last strike was in
1998. In response, the People pointed out that (1) defendant’s criminal history dates back
to 1986, (2) his convictions include violence and the use of weapons, (3) he has suffered
nine felony convictions, and (4) he has served several prison sentences based on new
charges, as well as probation and parole violations. According to defendant’s probation
officer, because defendant’s current offense is “another example of senseless violence
with disregard for the rights of others,” he is “a danger to the community and a threat to
others.”
After analyzing the requisite factors, the trial court denied defendant’s request.
Regarding defendant’s current conviction, the court observed the risk of harm to be
“absolutely tremendous” because (1) defendant physically assaulted his wife prior to
firing the gun, evidencing his intent to harm her with the gun, (2) the offense occurred
during the day, placing other people at risk of being harmed, and (3) when defendant was
apprehended he was uncooperative with police, failed to follow instructions, and showed
an “utter disregard for lawful authority.” The court noted defendant’s criminal history,
which showed that he repeatedly violated the law, parole, and probation by possessing
firearms. The court found defendant to be “exactly the type of person that the People and
the Legislature intended to fall within the ambit of the three-strikes law. He continues to
offend. The nature of his offenses are becoming more serious and involve assaults with
firearms. [¶] And considering that he has spent the majority of his adult life in prison, he
is clearly within the three-strikes law.” For the same reasons, the trial court refused to
strike defendant’s prior serious felony enhancements.
18 2. Discretion to dismiss prior strike convictions (Romero motion).
A trial court may dismiss a prior strike conviction under section 1385 “in
furtherance of justice.” (§ 1385, subd. (a); see Romero, supra, 13 Cal.4th at pp. 529-
530.) In considering whether to do so, the trial court “must consider whether, in light of
the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) There is a
“‘strong presumption that any sentence that conforms to [the sentencing norms
established by the three strikes law] is both rational and proper.’” (In re Large (2007)
41 Cal.4th 538, 550.) We review the trial court’s decision for abuse of discretion.
(People v. Garcia (1999) 20 Cal.4th 490, 503 (Garcia).)
Here, the record demonstrates the trial court considered evidence relevant to
defendant’s current offense, background, character, and prospects, and arrived at a
reasonable decision to deny his Romero motion. His current offense involved violence
and firing a handgun at the victim. Defendant has a significant criminal record, including
convictions for violent offenses: first degree burglary (1988 & 1998), disorderly conduct
(1986), credit card forgery/receiving stolen property (1986 & 2000), felon/addict in
possession of a firearm (1992, 2008, & 2012), petty theft with a prior (1994), conspiracy
to commit a crime (2006), possession of a hypodermic needle/syringe (2008), and
possession of stolen property (2012). Although his strike offenses were relatively remote
19 in time, the mere fact that a strike is remote in time is insufficient to grant a Romero
motion where the defendant has engaged in consistent criminal activity over the
intervening years. (People v. Williams, supra, 17 Cal.4th at p. 163 [13 years between
strike and present offense “not significant” because defendant “did not refrain from
criminal activity during that span of time, and he did not add maturity to age”]; People v.
Gaston (1999) 74 Cal.App.4th 310, 320-321 [remoteness of strike priors not significant
in light of “unrelenting record of recidivism” and failure to lead crime-free life in
intervening years].) As the trial court observed, defendant has been “in and out of
custody continuously since 1986,” “at best, [he has] served 20 out of the last 33 years in
custody.” And, he was on parole when he committed his current offense.
Nonetheless, defendant argues that his record shows “a trend of relatively minor
and sporadic criminal activity since 1998,” and his “profile is far more similar” to that of
the defendant in Garcia, supra, 20 Cal.4th 490, 499. In Garcia, the defendant was found
guilty of two counts of burglary and had been found to have suffered five serious felony
convictions, one of which the trial court dismissed. (Id. at p. 495.) On review, the
California Supreme Court upheld the lower court’s exercise of its discretion to strike the
prior conviction allegations, noting the defendant did not receive a lenient sentence (31
years 4 months to life in state prison), all of his prior convictions “arose from a single
period of aberrant behavior for which he served a single prison term,” he “cooperated
with police, his crimes were related to drug addiction, and his criminal history does not
include any action violence.” (Id. at p. 503.) The Supreme Court observed that “all these
circumstances indicate that ‘defendant may be deemed outside the [Three Strikes]
20 scheme’s spirit,’ at least ‘in part,’ and that the trial court acted within the limits of its
section 1385 discretion.” (Ibid.) The same may not be said about the defendant in this
case.
Given defendant’s continuous inability to conform his behavior to that of a law-
abiding citizen, along with his act of arming himself with a firearm, the trial court
concluded he fell within the spirit of the three strikes law. We see nothing irrational or
arbitrary about that determination and, therefore, find no abuse of discretion.
3. Discretion to dismiss prior serious felony enhancements.
Effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) amended
sections 667, subdivision (a), (Stats. 2018, ch. 423, § 64) and 1385, subdivision (b),
(Stats. 2018, ch. 1013, § 2) to delete restrictions on the trial court’s discretion to strike
prior serious felony convictions for sentencing purposes. (See People v. Garcia (2018)
28 Cal.App.5th 961, 971.) For the same reasons discussed ante, the court refused to
dismiss defendant’s prior serious felony enhancements.
On appeal, defendant points out that, “even in the absence of the prior serious
felony enhancements, [he] would have received a sentence of 25 years to life plus
14 years—a substantial term of imprisonment for a man of 52 years of age.” Relying on
Coker v. Georgia (1977) 433 U.S. 584, 592 (Coker) (“a punishment is ‘excessive’ and
unconstitutional if it . . . makes no measurable contribution to acceptable goals of
punishment”) and Justice Mosk’s concurring opinion in People v. Deloza (1988) 18
Cal.4th 585, 601 (Deloza) (“[a] grossly excessive sentence can serve no rational
legislative purpose, under either a retributive or a utilitarian theory of punishment”),
21 defendant argues that “willfully imposing such a sentence where a lesser, more
reasonable alternative is available constitutes an abuse of discretion.” We disagree.
Defendant’s reliance on Coker and Deloza is misplaced. In Coker, four justices of
the United States Supreme Court were of the opinion that the death penalty constituted
cruel and unusual punishment for the crime of rape of an adult woman where the death
determination was, under Georgia law, based on prior felonies. (Coker, supra, 433 U.S.
at pp. 586-600 (plur. opn. of White, J.).) Two other justices concurred because they were
of the opinion that the death penalty constitutes cruel and unusual punishment in
violation of the Eighth Amendment in all circumstances. (Id. at p. 600 (conc. opn. of
Brennan, J.); id. at pp. 600-601 (conc. opn. of Marshall, J.).) The Supreme Court did not
speak at all concerning aggregated sentences that result in life imprisonment. And in
DeLoza, Justice Mosk’s concurring opinion arguing sentences that are impossible to
serve violate the Eighth Amendment prohibition on cruel and unusual punishment
(Deloza, supra, 18 Cal.4th at pp. 600-602) has no precedential value. (People v. Byrd
(2001) 89 Cal.App.4th 1373, 1383.)
For the same reasons discussed ante, we find no abuse of discretion in the court’s
refusal to exercise its discretion and strike one or both of defendant’s prior serious felony
enhancements.
D. Defendant’s Sentence Is Not Cruel and Unusual Punishment.
Defendant contends his sentence of 25 years to life, plus 24 years, violates the
Eighth Amendment proscription against cruel and unusual punishment because “it is so
22 grossly disproportionate to [his] individual culpability that it ‘shocks the conscience and
offends fundamental notions of human dignity.’” We disagree.
At the outset, we note defendant acknowledges his failure to raise this issue at the
trial level. Generally, such failure forfeits the claim on appeal because the issue often
requires a factual inquiry. (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.)
Nevertheless, we reach the merits to “prevent the inevitable ineffectiveness-of-counsel
claim.” (People v. Norman (2003) 109 Cal.App.4th 221, 229-230.).
Defendant’s argument presents a question of law (People v. Abundio (2013)
221 Cal.App.4th 1211, 1217), for which he bears a “considerable burden.” (People v.
Wingo (1975) 14 Cal.3d 169, 174.) “‘The Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids only extreme sentences
that are “grossly disproportionate” to the crime.’” (Ewing v. California (2003) 538 U.S.
11, 23-24 (Ewing) [25 years to life in prison under three strikes law for felony petty theft
of three golf clubs valued at $399 each].) In determining whether a sentence for a term of
years is grossly disproportionate for a particular defendant’s crime, “‘[a] court must begin
by comparing the gravity of the offense and severity of the sentence. [Citation.] “[I]n the
rare case in which [this] threshold comparison . . . leads to an inference of gross
disproportionality” the court should then compare the defendant’s sentence with the
sentences received by other offenders in the same jurisdiction and with the sentences
imposed for the same crime in other jurisdictions. [Citation.] If this comparative
analysis “validate[s] an initial judgment that [the] sentence is grossly disproportionate,”
23 the sentence is cruel and unusual.’” (In re Coley (2012) 55 Cal.4th 524, 542; see Graham
v. Florida (2010) 560 U.S. 48, 60.)
“Reviewing courts must ‘“grant substantial deference to the broad authority that
legislatures necessarily possess in determining the types and limits of punishments for
crimes.”’” (People v. Edwards (2019) 34 Cal.App.5th 183, 190-191; see Harmelin v.
Michigan (1991) 501 U.S. 957, 999 (Harmelim) (opn. of Kennedy, J., conc. in part &
conc. in the judg.) [life without the possibility of parole for nonviolent possession of
672 grams of cocaine].) “Outside the context of capital punishment, successful
challenges to the proportionality of particular sentences have been exceedingly rare.”
(Rummel v. Estelle (1980) 445 U.S. 263, 272 [life sentence for credit card fraud of $80,
passing a $28.36 forged check, and obtaining $120.75 by false pretenses not cruel and
unusual].)
1. Federal Constitution.
Defendant contends his sentence is harsh because, given his age, it “is effectively
one of life without the possibility of parole.” However, defendant’s sentence is not based
solely on his current offense but on the basis of his recidivist behavior. “Recidivism has
long been recognized as a legitimate basis for increased punishment” (Ewing, supra,
538 U.S. at p. 25), and “three strikes sentences for less serious felonies have been
routinely upheld against Eighth Amendment attack.” (In re Bolton (2019)
40 Cal.App.5th 611, 622; see, e.g., Ewing, at pp. 30-31.) Thus, “[i]n weighing the gravity
of [defendant’s] offense[s], we must place on the scales not only his current felon[ies],
but also his long history of felony recidivism.” (Ewing, at p. 29.)
24 Based on the United States Supreme Court decisions of Harmelin, Ewing, and
Lockyer v. Andrade (2003) 538 U.S. 63, 68, 77 [two consecutive 25-year-to-life terms for
two separate thefts of less than $150 worth of videotapes upheld], which found that
lengthy prison sentences were not “grossly disproportionate” to the nonviolent and/or
petty theft crimes of recidivists in those cases, we conclude the sentence of 25 years to
life, plus 24 years, imposed on defendant is not grossly disproportionate under the Eighth
Amendment. That defendant likely will spend the rest of his life in prison as a result of
his age does not persuade us that his sentence is grossly disproportionate to his offenses,
particularly when viewed in light of his prior criminal misconduct spanning many
decades. We thus reject his claim that his sentence constitutes cruel and unusual
punishment under the Eighth Amendment.
2. State Constitution.
Article I, section 17, of the California Constitution prohibits the infliction of cruel
or unusual punishment, namely punishment that is “‘so disproportionate to the crime for
which it is inflicted that it shocks the conscience and offends fundamental notions of
human dignity.’” (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon); see In re Lynch
(1972) 8 Cal.3d 410, 424 (Lynch).) Under California’s three strikes law, when the
defendant has at least two prior strike convictions, the Legislature has set life sentences
as the appropriate penalty for any current felony. (§§ 667, subd. (e), 1170.12, subd. (c).)
Thus, a 25-year-to-life prison sentence is imposed not only for the defendant’s current
felony but also for his recidivism. (See People v. Mantanez (2002) 98 Cal.App.4th 354,
366.) When reviewing a claim of disproportionality or cruel or unusual punishment
25 under the state Constitution, we (1) examine the nature of the offense and offender,
(2) compare the punishment with the penalty for more serious crimes in the same
jurisdiction, and (3) measure the punishment to the penalty for the same offense in
different jurisdictions. (Lynch, at pp. 425-427.)
Regarding the first prong or the nature of the offense and the offender, we evaluate
the circumstances of the current offense, along with defendant’s personal characteristics,
including his age and prior criminality. (People v. Lucero (2000) 23 Cal.4th 692, 739.)
According to defendant, he “had never been convicted previously of a violent offense; his
serious felony priors of first degree burglary were property crimes committed when the
residents were absent[; and his] other less serious offenses were largely crimes of
possession—of firearms, hypodermic needles and stolen property.” However, he ignores
the facts that he chose to arm himself with a gun despite being prohibited from doing so,
he committed his current offense by firing a weapon at a defenseless victim, he fled the
scene, and he later attempted to hide from law enforcement. Moreover, while defendant
did not injure the victim, that hardly mitigates the danger he put her in by firing a gun at
her. Furthermore, defendant committed his first felony when he was 20 years old and he
committed his current felony when he was 46 years old. From ages 20 to 46, he spent a
significant period of time incarcerated as a result of his numerous prior convictions, and
his prior performance on probation and parole was described as “unsatisfactory.”
Defendant is not being punished again for his prior crimes. Rather, his 49-year-to-life
sentence was properly based on his recidivism. “[A] defendant’s history of recidivism,
which is part of the nature of the offense and the offender, justifies harsh punishment.”
26 (People v. Meeks (2004) 123 Cal.App.4th 695, 709 [25-year-to-life sentence under the
three strikes law for willful failure to register as a sex offender within five working days
of an address change].)
The next step in the Lynch analysis is to compare defendant’s punishment with
punishments prescribed for more serious crimes. However, this portion of the analysis is
inapplicable to sentencing under the three strikes law. (People v. Cline (1998)
60 Cal.App.4th 1327, 1338 (Cline).) This is so because “it is a defendant’s ‘recidivism in
combination with his current crimes that places him under the three strikes law. Because
the Legislature may constitutionally enact statutes imposing more severe punishment for
habitual criminals, it is illogical to compare [defendant’s] punishment for his “offense,”
which includes his recidivist behavior, to the punishment of others who have committed
more serious crimes, but have not qualified as repeat felons.’” (Ibid.)
The third prong of Lynch calls for a comparison of the California punishment with
punishment for the same crimes in other states. “[A] comparison of California’s
punishment for recidivists with punishment for recidivists in other states shows that many
of the statutory schemes provide for life imprisonment for repeat offenders, and several
states provide for life imprisonment without possibility of parole. California’s scheme is
part of a nationwide pattern of statutes calling for severe punishments for recidivist
offenders.” (Cline, supra, 60 Cal.App.4th at p. 1338.)
Defendant has had ample opportunity to reform but has not chosen to do so. We
conclude his sentence does not constitute cruel and unusual punishment under either the
state or federal Constitution.
27 E. Defendant’s Ability to Pay Fines and Fees (Dueñas).
Defendant asserts that under the reasoning of Dueñas, supra, 30 Cal.App.5th
1157, the imposition of a $40 court operations and facilities fee (Pen. Code, § 1465.8,
subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $300
restitution fine (Pen. Code, § 1202.4) without considering his ability to pay violated his
right to due process. He seeks remand to allow him to request an ability to pay hearing
on his various fines and fees. Acknowledging the holding in Dueñas, the People contend
that if we determine the trial court erred in failing to hold an ability to pay hearing, the
error is harmless beyond a reasonable doubt based on our holding in People v. Jones
(2019) 36 Cal.App.5th 1028, 1035 (Jones). As to the $300 restitution fine, the People
assert the fine is a form of punishment and should principally be examined in light of the
excessive fines clause, under which ability to pay is not determinative.10
We conclude remand is not necessary for an ability to pay hearing given
defendant’s lengthy sentence and the likelihood of his ability to earn prison wages.
10 “It makes no difference whether we examine the issue as an excessive fine or a violation of due process.” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 [considering an excessive fine challenge to the civil penalty imposed under Health & Saf. Code, § 118950, subd. (d)]; People v. Castellano (2019) 33 Cal.App.5th 485, 490 [“imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections”]; Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8.)
28 1. Further background information.
According to the probation officer’s report, at the time of his sentencing,
defendant was 51 years old, five feet nine inches tall, and weighed 160 pounds. He was
married, had two adult children, had no income or expenses, and had obtained his GED.
He had good physical health, with no physical limitations or disabilities. The report
recommended the trial court order defendant to pay a $10,000 restitution fine (Pen. Code,
§ 1202.4), a $30 criminal conviction assessment (Gov. Code, § 70373), a $40 court
operations and facilities fee (Pen. Code, § 1465.8, subd. (a)(1)), and a $10,000 parole
revocation restitution fine (Pen. Code, § 1202.45). At the sentencing hearing, the trial
court ordered defendant to pay the recommended amounts, with the exception of the
restitution fines, which the court imposed in the amount of $300 each.11 The court never
conducted a hearing, nor commented, on defendant’s ability to pay; however, when it
indicated its intent to impose $3,000 in victim restitution, defense counsel inquired
whether the court would consider imposing “the limited restitution fine rather than
$3,000.” The court replied, “All right. I’ll do $300 victim restitution fine.”
2. Applicable law.
The Dueñas court concluded: “[T]he assessment provisions of Government Code
section 70373 and Penal Code section 1465.8, if imposed without a determination that the
defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon
11 The $300 parole revocation restitution fine (§ 1202.45) was stayed pending successful completion of parole.
29 indigent defendants without a determination that they have the present ability to pay
violates due process under both the United States Constitution and the California
Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, People v. Belloso
(2019) 42 Cal.App.5th 647, 654-655.)12 In contrast to court assessments, a restitution
fine under Penal Code section 1202.4, subdivision (b), “is intended to be, and is
recognized as, additional punishment for a crime.” (Dueñas, at p. 1169; accord, Belloso,
at p. 655.) Penal Code section 1202.4, subdivision (c), expressly provides a defendant’s
inability to pay a restitution fine may not be considered as a “compelling and
extraordinary reasons” not to impose the statutory minimum fine.
This court has addressed the claim of Dueñas error and concluded a defendant
who has not objected to the imposition of a restitution fine and court assessments has not
forfeited the issue on appeal. (Jones, supra, 36 Cal.App.5th at pp. 1031-1034 [no
forfeiture for failing to object to imposition of minimum restitution fine ($300) and court
security fee ($70)].) We also concluded a Dueñas error might be harmless if the record
shows a defendant will be able to earn the total amount imposed during imprisonment.
(Jones, at pp. 1034-1035 [a defendant who was sentenced to state prison for a term of six
12 Several Courts of Appeal, including this court (Jones, supra, 36 Cal.App.5th at pp. 1030-1035) have applied the analysis in Dueñas. (See, e.g., People v. Santos (2019) 38 Cal.App.5th 923, 929-934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted Nov. 13, 2019, S257844 [applying due process analysis to court assessments].) Others have rejected the due process analysis (e.g., People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946) or concluded the imposition of fines and fees should be analyzed under the excessive fines clause of the Eighth Amendment. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1061; People v. Kopp, at pp. 96-97 [applying excessive fines analysis to restitution fines].)
30 years—with a presentence custody and conduct credit of 332 days—would earn sufficient
prison wages to pay fines and assessments of $370]; see People v. Cervantes (2020)
46 Cal.App.5th 213, 228-229.)
Here, the record contains sufficient evidence to support defendant’s ability to pay
the amounts imposed given his prison sentence of 25 years to life, plus 24 years. The
trial court is presumed to know the law (People v. Thomas (2011) 52 Cal.4th 336, 361),
which includes the requirement that “every able-bodied prisoner imprisoned in any state
prison” must perform labor for compensation, and prison wages range from $12 to $56 a
month, depending on the job and skill level involved. (Pen. Code, § 2700; Cal. Code
Regs., tit. 15, § 3041.2, subd. (a)(1).) Up to 50 percent of defendant’s wages and trust
account deposits will be deducted to pay any outstanding restitution fine, plus another
five percent for the administrative costs of this deduction. (Pen. Code, § 2085.5,
subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).) The record reflects that at the
time of sentencing, defendant was 51 years old and had no disabilities. His health was
described as “good,” he was married, and had two adult children.
In the absence of some indication that defendant has a disability precluding him
from performing any type of labor in prison, it must be presumed that he is capable of
earning prison wages. (See People v. Gentry (1994) 28 Cal.App.4th 1374, 1377, fn. 6.)
The trial court could properly consider these wages and find, albeit implicitly, that
defendant can afford to pay the ordered fees through his prison wages. (See People v.
Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant’s
31 prison wages]; Jones, supra, 36 Cal.App.5th at p. 1035 [same]; People v. Cervantes,
supra, 46 Cal.App.5th at p. 229 [same].) Also, there is no evidence defendant has any
other financial obligations that would interfere with his ability to pay. Although there is
no guarantee defendant will actually obtain paid labor while serving his prison term, in
the absence of contrary evidence, we must assume he will become eligible for it during
his lengthy prison sentence.
For the above reasons, we conclude remand is unnecessary.
F. Senate Bill No. 136 Applies Retroactively to Defendant.
After this case was fully briefed, the parties filed supplemental briefs on the
applicability of Senate Bill No. 136, which became effective on January 1, 2020. (People
v. Jennings (2019) 42 Cal.App.5th 664, 680-681 [holding Senate Bill No. 136 applies
retroactively].) Senate Bill No. 136 amended section 667.5, subdivision (b) (Stats 2019,
ch. 590, § 1), which now limits one-year prior prison term enhancements to convictions
for certain sexually violent offenses. (See People v. Lopez (2019) 42 Cal.App.5th 337,
340.)
32 The parties agree defendant’s four one-year prior prison term enhancements must
be stricken under Senate Bill No. 136;13 however, the People contend the matter should
be remanded for resentencing to a term that does not exceed the original. We find no
reason to remand for resentencing. Because the trial court imposed the maximum
possible sentence,14 there is no need for the court to again exercise its sentencing
discretion. (See People v. Lopez, supra, 42 Cal.App.5th at p. 342 [“Because the trial
court imposed the maximum possible sentence, there is no need for the court to again
exercise its sentencing discretion” due to Senate Bill No. 136]; People v. Buycks (2018)
5 Cal.5th 857, 896, fn. 15 [“Because the resentencing court had imposed the maximum
possible sentence, regardless of whether the two-year on-bail enhancement was stricken,
there is no need to remand the matter to the trial court to exercise its sentencing discretion
anew.”].)
Accordingly, we order the judgment modified to strike the four one-year
enhancements imposed under section 667.5, subdivision (b).
13 The court imposed four one-year enhancements under section 667.5, subdivision (b), for defendant’s convictions for felon in possession of firearm (two), receiving stolen property, and conspiracy; none is a sexually violent offense.
14The trial court imposed the upper term of 10 years on the firearm enhancement (§ 12022.5, subds. (a), (d)), and the upper term of five years on each of the serious felony enhancements (§§ 667, subd. (a)(1)).
33 III. DISPOSITION
The judgment is modified to strike the four one-year enhancements imposed under
section 667.5, subdivision (b). The clerk of the superior court is directed to prepare an
amended abstract of judgment and forward it to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
MENETREZ J.