Opinion
H047998
01-28-2022
THE PEOPLE, Plaintiff and Respondent, v. CHARLES ALLEN HOLIFIELD, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. SS170597)
BAMATTRE-MANOUKIAN, J.
I. INTRODUCTION
Thirteen-year-old Christina Marie Williams went missing on the evening of June 12, 1998, after she left her family's home on Fort Ord to take her dog for a walk. Her remains were found seven months later in a rural area off a dirt road. In 2016, a state crime lab developed a DNA profile from the sperm cells found on Christina's underwear. The male DNA on Christina's underwear matched defendant's DNA profile.
After a court trial, the trial court found defendant Charles Allen Holifield guilty of special circumstances murder (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(b), (e); count 1) and kidnapping to commit rape (§ 209, subd. (b)(1); count 2) and found true several sentencing allegations, including that defendant was a habitual sex offender. The 1 court sentenced defendant to life without the possibility of parole on count 1 consecutive to life with the possibility of parole on count 2. The court imposed a 25-year-to-life term for the habitual sex offender enhancement and a consecutive 27-year determinate term for the remaining sentencing enhancements.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case but raises no issues. We notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant subsequently filed a letter brief contending that he received ineffective assistance of trial counsel and that his appellate counsel is ineffective.
As we will explain, pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have carefully reviewed the entire record, considered defendant's contentions, and determined that there are no arguable issues on appeal. Therefore, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Evidence
1. Prosecution Case a. Current Incident
At 7:30 p.m. on June 12, 1998, 13-year-old Christina Marie Williams left her family's house on Fort Ord to walk her dog. When she did not return, Christina's mother and brother looked for her in the neighborhood but only found the dog with its leash still attached. Christina's father reported her disappearance to the police when he got home at 8:45. Searches were conducted, but Christina was not found. The FBI took over the case on June 15. A scent dog tracked Christina's scent from a wooded area behind Fort Ord housing to a nearby road. The dog tracked her scent a couple hundred yards down the road before losing the scent on the road's shoulder.
A botanist doing a plant survey on Fort Ord found Christina's body on January 12, 1999, near a grove of trees in a rural area approximately 500 yards off a dirt road off 2 Imjin Road. Her remains were covered by a pile of branches, which appeared to have been placed there to conceal Christina's body. Some of the remains had been pulled away from the original site, likely by animals. Christina's body was clothed, with her underwear and bra on and her jeans fastened. Due to decomposition and the incomplete nature of her remains, Christina's cause of death could not be determined. An anthropologist estimated that Christina died three to nine months earlier.
Christina's underwear was tested by the FBI in March 1999 for the presence of prostate specific antigen, a protein found in semen. The test results were presumptive negative. Based on those results, the underwear was not examined microscopically for sperm and no DNA testing was conducted.
Defendant was a top suspect based on various leads. In 1997, defendant was twice contacted by a ranger for fishing in a pond located in a restricted area on Fort Ord. The pond was approximately two miles from Christina's house. During the second contact, the ranger observed that defendant had a BB gun in the back of his open-bed truck that resembled a Colt .45-caliber automatic.
Defendant was arrested in 1997 for violating a protective order. Defendant stated," 'You know this will get me a third strike.' "
Defendant was interviewed by an FBI agent in 1998. Defendant could not recall his whereabouts on the date of Christina's disappearance. According to defendant's employer, on June 12, 1998, defendant asked to leave work early to look at an apartment.
A woman identifying herself as Lisa Holifield set up an appointment to view an apartment with her husband on the evening of June 12, 1998. The couple did not show up for the meeting.
The apartment owner met with Lisa and defendant the following day. A tenant in the apartment complex overheard an argument between a woman and defendant. The woman was asking defendant where he had been the night before. Defendant responded that it was none of her business. 3
In a subsequent FBI interview, defendant stated that the area where Christina was found was one of the spots he used to visit and that he fished in the area. Defendant said that he was familiar with the area behind Christina's residence. Defendant stated that he did not know where he was when Christina disappeared but he had nothing to do with it. Defendant acknowledged missing an appointment to view an apartment the night of Christina's disappearance.
In early 2016, officials from the Monterey County District Attorney's Office requested that evidence items be released to the California Department of Justice for additional analysis and testing. In April 2016, a state criminalist microscopically observed a sperm cell on a cutting from Christina's underwear. That sample along with a larger sample of the underwear's crotch area were sent to the state DNA lab. A DNA criminalist found additional sperm cells on the larger sample of Christina's underwear. The criminalist developed a single-source DNA profile from the extracted sperm cells, which matched the profile developed from defendant's DNA reference sample at all 21 loci. Defendant's DNA profile is estimated to occur at random in approximately 1 in 85 octillion African Americans, 1 in 46 octillion Caucasians, and 1 in 23 octillion Hispanics. Christina's father was excluded as a source of the DNA profile developed from Christina's underwear.
The criminalist testified that sperm cells live longer than other components of seminal fluid, such as enzymes and proteins, which are less stable and are broken down by bacteria. Based on the underwear's exposure to the elements, she would not expect to find the presence of prostate specific antigen.
b. Testimony of Defendant's Former Girlfriend
Defendant's girlfriend in the late 1990's testified that defendant was sometimes violent and sexually aggressive toward her. In 1996, while they were having consensual sex in defendant's truck, defendant pulled a garment around girlfriend's neck and strangled her, cutting off her air supply for "a good minute." It crossed girlfriend's mind 4 that defendant might kill her. Defendant then had anal sex with girlfriend against her will.
Eight to nine months later, girlfriend was awakened by defendant penetrating her anus with his penis while she was asleep.
Another time, during an argument, defendant blocked girlfriend when she tried to exit his trailer and then punched her in the legs several times. She told him she wanted to leave but he did not let her.
Girlfriend testified that she and defendant spent time together in undeveloped parts of Fort Ord. Defendant had grown up in the area. Defendant and girlfriend frequently took a dirt road off Imjin Road. Defendant fished in a pond at the end of the dirt road and sometimes went running on the dirt road.
Girlfriend stated that sometime between June 18 and June 25, 1998, defendant visited her at work at Pelican Pizza and asked her to provide an alibi for him. Girlfriend refused defendant's request because defendant would not tell her what he had done. Defendant said that he would ask L.J. for an alibi.
Girlfriend testified that six to twelve weeks after Christina's disappearance, girlfriend followed defendant in a vehicle while defendant was running. Defendant left girlfriend's line of sight and then reappeared 30 to 40 minutes later. Girlfriend asked defendant where he went but he got angry and would not tell her. Defendant began talking to himself. Girlfriend testified that defendant said "things like 'With your bad sorry life, your family life. Why would I kill you, you're miserable already, '" or, "[b]asically 'I should get rid of you too.'" Girlfriend feared defendant might harm her.
c. 1983 Incident
In April 1983, defendant grabbed 14-year-old D.J. by the neck as she was walking home in Pacific Grove one evening. They struggled, and defendant choked D.J. so that she could not breathe. Defendant dragged her away from the road, behind some bushes or trees. Defendant put D.J. on the ground and told her to take her pants off. Defendant 5 penetrated D.J.'s vagina with his penis. Defendant let D.J. get dressed and then put her in his car. Defendant tied D.J.'s neck, arms, and legs with her shoelaces so that she could not get out. Defendant drove near Seaside High School and took D.J. to a wooded area by a big parking lot. Defendant tore off D.J.'s underwear and raped her again. Afterwards, D.J. spoke to defendant about God and forgiveness and mentioned that a Salvation Army social worker could help him.
D.J. and defendant went to the Salvation Army, where they spoke to a social worker. Defendant told the social worker that he had raped D.J. The social worker called D.J.'s mother and the police responded. D.J. was given a sexual assault exam. During a police interview, defendant admitted raping D.J.
Conviction records admitted into evidence established that defendant pleaded guilty to two counts of rape (§ 261.2) and one count of kidnapping (§ 207) on June 15, 1983.
d. 1979 Incident
In May 1979, 18-year-old D.B. was walking on a bike path one night in Marina when she was jumped from behind. Defendant grabbed her, threw her to the ground, and held her down with his knee to her back. Defendant rolled her over and pulled her pants and underwear down. Defendant's penis was out. D.B. asked defendant if he had any weapons and he showed her a knife, which he threw out of reach. Defendant penetrated D.B.'s vagina with his penis. When he was unable to penetrate her completely, he asked D.B. for oral sex. D.B. refused. At some point D.B. pulled her underwear back up. D.B. and defendant walked together for a while and then he told her to lie on the ground and stay there until she heard him yell. Defendant asked D.B. if she had gone to Fitch Junior High School and Seaside High School, which she had, and told her that he had seen her before.
Conviction records admitted into evidence established that a jury convicted defendant of assault with intent to commit rape (§ 220) on January 16, 1980. 6
2. Defense Case
Grounds searches, including on dirt bikes and horseback, were conducted for Christina for at least two weeks after she went missing, concluding on July 3, 1998. Law enforcement also conducted aerial and cadaver-dog searches. The cadaver dogs searched 100 to 200 yards off of the dirt road near where Christina was found, but did not locate her remains. Rewards were offered for information regarding Christina's abduction and tip lines were established.
Stacey Murray was running on Fort Ord the evening of Christina's disappearance. Around 5:00 p.m., two Filipino or Asian men in a gray sedan pulled up and wanted to know how old she was. Before they drove off, one of the men said something about her being too old.
Also that evening on Fort Ord, at approximately 7:30 p.m., Jennifer Parris saw a car run a stop sign and stop halfway in the intersection. Christina was inside the car. Christina grabbed the window and looked at Parris. A man in the backseat looked at Parris, said something to Christina, and looked back before the car drove away. The man was white or Hispanic and had his arm around Christina. Parris was familiar with Christina from the neighborhood and had once seen her leaving "Heike['s] house" wearing clunky shoes.
Judith Handy was staying at her daughter's house on Fort Ord when Christina disappeared. Sometime after 7:30 p.m., Handy saw an older, lime green vehicle on the road behind her daughter's house that caught her attention. Handy did not see the people in the car.
Donna Ann Dulo saw a dog coming out of the woods near Fort Ord housing on the night of Christina's disappearance. Dulo also saw an old, beaten-up vehicle, once around 5:15 p.m. and again around 8:00 p.m. The first time she saw the vehicle there was a Black man between the ages of 25 and 30 inside. The second time she saw the vehicle it was a couple hundred feet from where she saw the dog. Dulo did not see anyone inside. 7
The parties stipulated that if FBI agent Bryant Ling were called as a witness, he would testify that he interviewed Sean Olivetti on July 2, 1998. Olivetti told Ling that sometime after Christina's disappearance, between June 12 and June 19, 1998, Christina and a man walked in front of him. Christina looked well, not in distress. The man was in his 20s and Filipino. Olivetti identified the man in a sketch.
In November 1998, when she was 16 or 17 years old, N.B. was abducted by two men in Petaluma. The vehicle involved in the abduction was a brown sedan. The men spoke Spanish. N.B. worked with a sketch artist.
Also in November 1998, D.F. informed the FBI that B.C. killed Christina. D.F., a state prison inmate, testified that B.C. came to D.F.'s house with a body wrapped in a tarp in the back of his truck. It was a little girl with long black hair. D.F. did not see the girl's face. D.F. told B.C. to leave. When D.F. contacted the FBI, he was facing a third-strike sentence and tried to make a deal. D.F. admitted that he lied to the FBI when he stated that he participated in the disposal of the body.
In January 1999, a well was being drilled in a remote part of Fort Ord. The drilling stopped when remains were found. The remains were a couple hundred feet from the drill site. Several employees had been at the drill site since September 1998.
Monterey Police Sergeant Mickey Roobash testified that an employee at his brother's pizza place, Pelican Pizza, never told him during his investigation of Christina's disappearance that a man named Charles Holifield had asked her for an alibi.
J.S. testified before a federal grand jury that on June 12, 1998, the date of Christina's disappearance, defendant was at her home visiting her daughter, L.J.
The parties stipulated that J.S.'s grand jury testimony was admissible at trial.
L.J. testified that defendant was with her the night Christina was abducted. L.J. remembers watching television with defendant and her mother around 7:00 o'clock. L.J. and defendant were dating at the time, but were also married at some point. 8
L.J. stated that she and defendant went fishing on Fort Ord every couple of months. L.J. testified that she probably told the FBI that she went fishing with defendant on Fort Ord on June 12, 1998. They also had an appointment to see an apartment in Carmel Valley that day.
At some point after the state DNA lab tested Christina's underwear, a forensic scientist at Technical Associates Incorporated tested Christina's underwear for prostate specific antigen and DNA. Some of the underwear cuttings were positive for the antigen's presence and others were negative. Sperm cells were detected on some of the cuttings. The sperm-cell fraction of the DNA extracted from a cutting was consistent with defendant's DNA profile. Fewer than 1 in 233 quintillion men will have that DNA profile. The non-sperm fraction was a mixture of two people. The primary male contributor's DNA profile developed from the mixture was consistent with defendant's DNA profile. Defendant also could not be excluded as the primary male contributor to the DNA developed from the non-sperm fraction on another underwear cutting. A female DNA profile developed from a cutting was consistent with coming from someone who was the daughter of Michael and Elice Williams.
3. Rebuttal
Sarah Paulsen testified that Heike is her mother. Paulsen stated that Christina had never been at her house. In 1998, Paulsen had a friend who looked like Christina and had platform shoes.
The FBI investigated B.C. as a possible suspect based on D.F.'s statement that he saw Christina's body in the back of B.C.'s vehicle. B.C. provided a blood sample, his truck was seized, his storage unit was searched, and his personal property at the jail was searched. No physical evidence was found relating to this case. At some point in 2003, D.F. admitted that he made up a detail about the case because he was facing a 25 year to life sentence. 9
During L.J.'s FBI interview in January 2005, she stated that on June 12, 1998, she and defendant looked for a place stay, went fishing for an hour, and went home.
During L.J.'s FBI interview on September 29, 2011, L.J. affirmed her previous statements that defendant was with her on June 12, 1998. L.J. signed a statement attesting that all of her prior statements providing an alibi for defendant were accurate.
During L.J.'s FBI interview on November 16, 2011, L.J. stated that she was not with defendant on the evening of June 12, 1998. L.J. stated that she provided an alibi for defendant because she was afraid of him and did not want to cause trouble for her family. L.J. stated that defendant had threatened to kill her and hurt her family. L.J. wrote a statement recanting her alibi.
Mary Church testified that on the date of Christina's disappearance, L.J. told her that she was supposed see an apartment in Carmel Valley with defendant. L.J. stated that they did not make the appointment because she was late. Church testified that L.J. told her that she had not seen defendant for a couple of days, that he had disappeared, and that she did not know where defendant was the night of June 12, 1998. L.J. told Church that she and defendant had an argument at the apartment complex the following day. Church testified that L.J. said she and defendant sometimes physically fought and she was afraid of him because he was so violent with her.
B. Procedural Background
In January 2018, the Monterey County District Attorney charged defendant by information with special circumstances murder (§§ 187, subd. (a), 190.2, subd. (a)(17)(b), (e); count 1) and kidnapping to commit rape (§ 209, subd. (b)(1); count 2). Regarding count 2, the district attorney alleged that defendant kidnapped Christina, who was under age 14, to commit a felony sex offense (§ 667.8, subd. (b)); personally inflicted great bodily injury during the commission of the offense (§ 12022.7, subd. (a)); and was a habitual sex offender (§ 667.71). Regarding both counts, the district attorney alleged that defendant had previously been convicted of four strike offenses (§ 1170.12, subd. (c)(1)) 10 and two serious felonies (§ 667, subd. (a)(1)) and had served two prior prison terms (§ 667.5, subd. (b)).
In December 2019, the parties entered into an agreement where they waived their rights to a jury trial; the district attorney waived the right to seek the death penalty; and defendant agreed to "voluntarily waive and give up all rights regarding state and federal writs and appeals." The district attorney agreed that "certain rights cannot be waived, such as effective assistance of counsel, illegal sentences, and other rights specifically enumerated in statutes and/or caselaw binding on this Court."
A 10-day court trial was held in March 2020. The court found defendant guilty of both counts and found all allegations true except the section 667.8, subdivision (b) allegation to count 2 that defendant kidnapped Christina, who was under age 14, to commit a felony sex offense.
Section 667.8, subdivision (b) pertains to individuals "convicted of a felony violation of subdivision (c) of Section 286, subdivision (c) of Section 287 or former Section 288a, or Section 288." Defendant was neither charged with nor convicted of those offenses.
On count 1, the trial court sentenced defendant to life without the possibility of parole consecutive to two 5-year terms for the prior serious felony enhancements and two 1-year terms for the prior prison term enhancements. On count 2, the court sentenced defendant to a consecutive term of life with the possibility of parole consecutive to a 3-year term for the great bodily injury enhancement, a 25-year-to-life term for the habitual sex offender enhancement, two 5-year terms for the prior serious felony enhancements, and two 1-year terms for the prior prison term enhancements. 11 The court ordered defendant to pay a $200 restitution fine (§ 1202.4, subd. (b)), an $80 court operations assessment (§ 1465.8, subd. (a)(1)), and a $60 court facilities assessment (Gov. Code, § 70373). The court imposed a suspended $200 parole revocation restitution fine (§ 1202.45). The court did not award defendant presentence credits because he was serving a prison term for another offense while in custody on this case.
The trial court stated that pursuant to section 667, subdivision (c)(7), it imposed consecutive terms for the serious felony and prior prison term enhancements pertaining to each count. However, section 667, subdivision (c) is part of the Three Strikes law, which was not applied here. (See § 667, subd. (b).) Nonetheless, the imposition of consecutive terms for the serious felony and prior prison term enhancements was not unlawful because consecutive sentences for the enhancements could be imposed on each count pursuant to section 669, subdivision (a), which provides that "[l]ife sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with any other term of imprisonment for a felony conviction." Enhancements are "attached to [the] indeterminate . . . terms." (People v. Felix (2000) 22 Cal.4th 651, 656; see also People v. Tua (2018) 18 Cal.App.5th 1136, 1141 ["Prior serious felony enhancements are added once to each count on which an indeterminate sentence is imposed"].)
III. DISCUSSION
A. Defendant's Ineffective Assistance of Counsel Claims
Defendant's appointed counsel filed a Wende brief that states the case but raises no issues. However, defendant filed a letter brief on his own behalf raising several claims of ineffective assistance of counsel. We address defendant's claims pursuant to Kelly, supra, 40 Cal.4th at pages 120-121.
First, defendant contends that his trial counsel were ineffective because they made "[v]ery little or no argument . . . to exclude the DNA evidence" based on chain of custody issues, evidence of contamination, inconsistent test results, and testing irregularities and errors.
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]" (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).) 12
Here, the record is silent regarding the reason for counsel's decision to make "[v]ery little or no argument . . . to exclude the DNA evidence." Thus, the record "affords no basis for concluding that counsel's omission was not based on an informed tactical choice." (Anderson, supra, 25 Cal.4th at p. 569.) Accordingly, defendant's claim fails. (Id. at pp. 569-570.)
Second, defendant contends that his trial counsel were ineffective because they did not demonstrate that FBI agents gave "falsified information" regarding the cadaver-dog searches. Defendant alleges that FBI agents reported that cadaver dogs searched the area where the remains were found, but the dog handlers stated "that this is not true and that they lied about it." Defendant argues that this demonstrates that the case was "seriously flawed" and "should have been one of the trial attorney[s'] arguments."
There are no FBI reports regarding the cadaver-dog searches in the record on appeal, but trial testimony belies defendant's claims. Retired FBI agent Richard Lack testified that the FBI used cadaver dogs in their searches for Christina, but neither he nor any other FBI agent testified to the location of the cadaver-dog searches.
Trial counsel called two retired Monterey County sheriff's deputies to testify regarding the cadaver-dog searches. The first testified that cadaver dogs searched along a portion of Imjin Road, a dirt road off Imjin Road, and "in the immediate area." He also stated that "[t]he instructions were [to search] any available path every 100 to 200 yards," but that he did not search the exact location where Christina's remains were found. The second testified that a cadaver-dog search team was assigned to search "the general area" where the remains were located, but that he did not know if the cadaver dogs searched "the exact location" of the remains. Neither of the retired deputies testified that the FBI gave false information or lied about the searches.
Trial counsel raised the cadaver-dog searches during closing argument, stating that nothing was found, and that "because of all of the holes that the FBI left in [the case]," it was "impossible for [the prosecution] . . . to rule out reasonable doubt." 13
Thus, there is no record evidence that FBI agents lied about the cadaver-dog searches, and the record demonstrates that counsel pursued the cadaver dogs' nondetection of remains in their line of questioning and in argument. Because there is no factual basis in the record to support defendant's claim, it must be rejected. (See People v. Mickel (2016) 2 Cal.5th 181, 198-199.)
Third, defendant contends that his trial counsel were ineffective because they refused to question witnesses regarding the discrepancies between the witnesses' responses to initial questioning and the witnesses' trial testimony and "failed to expose the methods employed by the F.B.I. and D.O.J. to get condemning statements against the defendant." Defendant also contends that trial counsel should have retained an expert witness to testify on the effect of time's passage and repeated questioning on memory.
The record is silent regarding the reasons for counsel's decision not to pursue certain lines of questioning and failure to retain an expert witness on memory. Because the record provides "no basis for concluding that counsel's omission was not based on an informed tactical choice," we must reject defendant's claim. (Anderson, supra, 25 Cal.4th at p. 569.)
Fourth, defendant contends that his appellate counsel is ineffective for filing a Wende brief despite "[h]aving been given all of the information" regarding trial counsel's incompetence and because she "misrepresents facts of the case to this court." Defendant also requests that new appellate counsel be appointed.
Ineffective assistance of appellate counsel is not a cognizable argument on direct appeal. An appellant must raise this claim either in a motion to relieve counsel or in a separate petition for writ of habeas corpus. (See In re Reno (2012) 55 Cal.4th 428, 487-489, superseded by statute on other grounds as stated in In re Friend (2021) 11 Cal.5th 720, 728.) For the sake of expediency, we will treat the claim as a motion to relieve counsel and address the argument substantively here. 14
Failure of "appellate counsel to raise crucial assignments of error, which arguably might have resulted in a reversal," deprives an appellant of effective assistance of appellate counsel. (In re Smith (1970) 3 Cal.3d 192, 202.) However, counsel does not provide ineffective assistance merely by filing a brief pursuant to Wende. Rather, counsel has an ethical duty to raise only arguable issues, and counsel correctly determined that there were none here. Thus, filing a Wende brief satisfied counsel's ethical duties to defendant and to the court. (See Smith v. Robbins (2000) 528 U.S. 259, 276.) Moreover, having carefully reviewed the entire record, we find no misrepresentations of the facts by appellate counsel. Accordingly, we deny defendant's request for new appellate counsel.
B. Wende Review
In addition to considering defendant's claims, we have carefully reviewed the entire record. Based on our review, we have determined that the abstract of judgment filed April 28, 2020, contains a couple of clerical errors. First, the abstract of judgment incorrectly indicates that defendant was sentenced to life without the possibility of parole on count 2 rather than life with the possibility of parole. Second, the abstract of judgment incorrectly states that defendant was sentenced pursuant to "PC 667(b)-(i) or PC 1170.12," commonly known as the Three Strikes law, which was not applied here. We will order the abstract of judgment corrected.
Having considered defendant's claims and carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed. The abstract of judgment (Judicial Council form CR-292) filed April 28, 2020, is ordered corrected as follows: "& 2" shall be stricken from item 4; item 4 shall state that defendant was sentenced to life without the possibility of parole on count 1; item 5 shall be checked and shall state that defendant was sentenced 15 to life with the possibility of parole on count 2; and the box within item 8 indicating that defendant was sentenced pursuant to "PC 667(b)-(i) or PC 1170.12" shall be unchecked. The clerk of the superior court is ordered to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. 16
WE CONCUR: ELIA, ACTING P.J. DANNER, J. 17