Opinion
F073303
11-09-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES COTA, Defendant and Appellant.
Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Catherine Chatman, Raymond L. Brosterhous II, and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF160857A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Catherine Chatman, Raymond L. Brosterhous II, and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
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Charles Cota (defendant) stands convicted, following a jury trial, of assault with a deadly weapon, in the commission of which he personally inflicted great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7; count 1), battery with serious bodily injury, in the commission of which he personally used a deadly weapon (§§ 243, subd. (d), 12022, subd. (b)(1); count 2), and child abuse under circumstances likely to produce great bodily harm or death, in the commission of which he personally inflicted great bodily injury (§§ 273a, subd. (a), 12022.7; count 3). Following a bifurcated court trial, he was found to have previously been convicted of a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and to have served six prior prison terms (§ 667.5, subd. (b)). He was sentenced to a total unstayed term of 25 years in prison, and ordered to pay restitution and various fees, fines, and assessments.
All statutory references are to the Penal Code unless otherwise stated.
This case now comes before us a second time. In our original opinion, we held: (1) Sufficient evidence supported defendant's conviction on count 3; (2) Sufficient evidence supported the trial court's finding that defendant's prior aggravated assault conviction constituted a serious felony and, hence, a strike; (3) The trial court did not improperly impose five-year and one-year enhancements based on the same prior conviction; and, with one justice dissenting, (4) Defendant's 1989 prior prison term enhancement was properly imposed, and defendant's alternative claim of ineffective assistance of counsel failed. Accordingly, we affirmed, but directed the correction of a clerical error contained in the sentencing minutes.
The California Supreme Court granted review, and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks). We have done so, and conclude defendant is entitled to have stricken the prior prison term enhancements imposed for his 1985 and 1989 convictions. We will modify the judgment accordingly. We adhere to our original analysis in all other substantive respects.
FACTS
At approximately 2:15 a.m. on June 19, 2015, the cashier at the Valero gas station on California and Union Avenues, in Bakersfield, saw two young African-American males ride up on bicycles. One entered the store, while the other remained outside, talking on his cell phone while he rode in circles around the gas pumps.
While the cashier assisted the one who came inside, he saw someone running. The person was wearing clothing similar to that worn by defendant, whom the cashier had told to leave the premises about 15 minutes earlier. The young man who had been riding around the gas pumps came in, saying, "he got me, he got me," then lay down in the doorway. The cashier called 911 and put pressure on the young man's back, which was bleeding.
Bakersfield Police Officer Hensley responded to the gas station. Upon arrival, he observed Stephen B. lying in the doorway of the business. Stephen had an approximately one-inch laceration to his lower middle back and a small laceration to his left elbow, both of which were closed by staples at the hospital.
In order to protect his privacy, we refer to Stephen by his first name. No disrespect is intended.
In viewing the gas station's surveillance footage at trial, the manager of the gas station recognized the assailant as defendant. Defendant was frequently at the station, asking for money and alcohol. When he was seen at the gas station a few days after the stabbing, the manager called the police.
Surveillance video showing the incident was played for the jury.
DISCUSSION
I
COUNT 3
Defendant contends the evidence is insufficient to sustain his conviction on count 3, because it fails to establish Stephen was under 18 years of age. That the victim was a child — someone under 18 years old — is an element of a violation of section 273a, subdivision (a). (See People v. Lee (1991) 234 Cal.App.3d 1214, 1228; People v. Thomas (1976) 65 Cal.App.3d 854, 857-858.)
The applicable legal principles are settled. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "If the circumstances reasonably justify the [trier of fact's] findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.]" (People v. Redmond (1969) 71 Cal.2d 745, 755.) Instead, reversal is warranted only if "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
Stephen did not testify at trial. Jurors were, however, shown photographs of him taken a short time after the stabbing. In addition, Hensley testified Stephen was approximately 16 years old, while Detective Paglia, who met with Stephen just under a month after the incident, testified Stephen was approximately 16 or 17 years old.
This evidence, though circumstantial, was sufficient to establish Stephen was under 18 years old at the time of the incident. " 'Age is provable by the inference of any competent observing witness.' " (People v. Bond (1910) 13 Cal.App. 175, 191.) " 'Experience teaches us that corporal appearances are approximately an index of the age of their bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be in each case worth. In particular the outward physical appearance of an alleged minor may be considered in judging of his age . . . .' [Citations.]" (People v. Montalvo (1971) 4 Cal.3d 328, 335, italics omitted.)
We recognize defendant's jury saw only photographs of Stephen, rather than viewing him in person. There is no suggestion, however, that the photographs — which are contained in the record on appeal and which we have reviewed — are in any way misleading with respect to Stephen's appearance, or that a live view of him would have been materially different. Moreover, jurors heard the officers' testimony, and were instructed both that the prosecution had to prove Stephen was under 18 years old with respect to count 3, and on the consideration of lay opinion testimony.
We also recognize the officers gave approximations of Stephen's age. His exact age was not an element of the offense, however. Rather, he merely had to be under the age of majority. The officers' testimony in this regard, coupled with the photographs, constituted evidence that was "reasonable, credible, and of solid value." (People v. Johnson, supra, 26 Cal.3d at p. 578; see People v. Caldwell (1921) 55 Cal.App. 280, 296.) Its weight was for jurors to determine, as was the validity of the cashier's approximation that Stephen and his companion, to whom the cashier referred as "kids," were "[p]robably around [their] 20's." (People v. Provencio (1989) 210 Cal.App.3d 290, 306.)
It has been suggested that if age is to be determined from appearance and the subject is in court, the jury can resolve the question without the aid of opinion evidence. (People v. Caldwell, supra, 55 Cal.App. at p. 296.) We need not decide whether this is so where photographs of the subject are concerned, or whether, as required for admission of lay opinion testimony, the approximation of Stephen's age was "[h]elpful to a clear understanding of" the officers' testimony. (Evid. Code, § 800, subd. (b).) That testimony was given without objection, and so " ' "[took] on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support" ' " the jury's finding. (People v. Panah (2005) 35 Cal.4th 395, 476.)
II
THE 2012 CONVICTION
The information alleged, and the court found, that defendant was convicted in 2012 of assault with a deadly weapon other than a firearm, in violation of section 245, subdivision (a)(1), and that the offense was a serious felony and a strike. As a result, the trial court doubled the base term imposed on count 3, which it designated as the principal term, and imposed a consecutive five-year enhancement.
The offense underlying the conviction was committed in 2011. At that time, subdivision (a)(1) of section 245 proscribed both assault with a deadly weapon other than a firearm and assault by means of force likely to produce great bodily injury. Assault with a deadly weapon is a serious felony, but assault by means of force likely to produce great bodily injury (the "GBI prong") is not, absent the additional element of personal infliction of great bodily injury. (People v. Delgado (2008) 43 Cal.4th 1059, 1065 (Delgado).)
As of January 1, 2012, subdivision (a)(1) of section 245 now proscribes assault with a deadly weapon or instrument other than a firearm, while subdivision (a)(4) of the statute proscribes assault by any means of force likely to produce great bodily injury. All references to section 245, subdivision (a)(1) are to the statute as it existed before this amendment.
In the present case, the People presented a certified Criminal Justice Information System (CJIS) printout reflecting that during defendant's change of plea hearing, he was advised of the consequences of a plea to a strike or serious felony. The People also presented certified copies of prison records (§ 969b) that included the abstract of judgment in the case. The abstract of judgment showed defendant was convicted, by plea, of violating "PC 245(a)(1)," "ASSAULT W/DEADLY WEAPON."
Defendant now contends the evidence was insufficient to establish his 2012 conviction was a serious felony. The California Supreme Court has summarized the applicable law as follows:
"The People must prove each element of an alleged sentence enhancement beyond a reasonable doubt. [Citation.] Where, as here, the mere fact that a prior conviction occurred under a specified statute does not prove the serious felony allegation, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. [Citations.]
"A common means of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding and commitment to prison, including the abstract of judgment describing the prior offense. [Citations.]
" '[T]he trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction . . . .' [Citations.] '[O]fficial government records clearly describing a prior conviction presumptively establish that the conviction in fact occurred, assuming those records meet the threshold requirements of admissibility. [Citation.] Some evidence must rebut this presumption before the authenticity, accuracy, or sufficiency of the prior conviction records can be called into question.' [Citation.]
"Thus, if the prosecutor presents, by such records, prima facie evidence of a prior conviction that satisfies the elements of the recidivist enhancement at issue, and if there is no contrary evidence, the fact finder, utilizing the official duty presumption, may determine that a qualifying conviction occurred. [Citations.]
"However, if the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden. [Citations.]
"On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt. [Citations.]" (Delgado, supra, 43 Cal.4th at pp. 1065-1067.)
In People v. Gallardo (2017) 4 Cal.5th 120, the court stated: "[W]hen the criminal law imposes added punishment based on findings about the facts underlying a defendant's prior conviction, '[t]he Sixth Amendment contemplates that a jury — not a sentencing court — will find such facts, unanimously and beyond a reasonable doubt.' [Citation.] While a sentencing court is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, the court may not rely on its own independent review of record evidence [in Gallardo, the preliminary hearing testimony] to determine what conduct 'realistically' led to the defendant's conviction. Here, the trial court violated defendant's Sixth Amendment right to a jury trial when it found a disputed fact about the conduct underlying defendant's assault conviction that had not been established by virtue of the conviction itself." (Id. at pp. 124-125.) Gallardo does not affect our review of the trial court's determination in defendant's case.
In Delgado, the defendant was alleged to have suffered a prior conviction under section 245, subdivision (a)(1), which, it was further alleged, constituted a serious felony. The People's sole proof was a package of certified documents pertaining to the conviction, including an abstract of judgment that "specified the statute violated as '[Penal Code section] 245(A)(1)' and described the crime as 'Asslt w DWpn.' " (Delgado, supra, 43 Cal.4th at p. 1063.) The state high court found this evidence sufficient to sustain the trial court's finding that the prior conviction was for a serious felony. (Id. at p. 1072.) The court explained:
"This . . . description [of the offense set out in the abstract of judgment] tracks one, but only one, of the two specific, discrete, disjunctive, and easily encapsulated forms of aggravated assault set forth in section 245(a)(1). . . . [T]he instant abstract does not mention the other specific, discrete, and disjunctive form of section 245(a)(1) violation, involving force likely to produce GBI. . . . [I]t does not simply cite the statute violated, without any reference to the underlying conduct. Any inference that this notation simply refers to the statute generally is thus sharply diminished.
"The People therefore presented prima facie evidence, in the form of a clear, presumptively reliable official record of defendant's prior conviction, that the conviction was for the serious felony of assault with a deadly weapon. Defendant produced no rebuttal evidence. Utilizing the presumption of official duty, and drawing reasonable inferences from the official record, the trial court, as a rational trier of fact, could thus properly find beyond reasonable doubt that a prior serious felony conviction had occurred." (Delgado, supra, at pp. 1069-1070, fn. omitted.)
Delgado is dispositive here. Defendant's reliance on People v. Learnard (2016) 4 Cal.App.5th 1117, 1120-1121, 1124 (insufficient evidence where abstract of judgment described offense as " 'Assault w deadly wpn/GBI' "), review granted February 22, 2017, S238797, review dismissed September 12, 2018, is unavailing.
Defendant says that if we conclude the evidence was sufficient, we must nevertheless strike the one-year enhancement imposed, pursuant to section 667.5, subdivision (b), for the 2012 conviction. The Attorney General concedes defendant is correct. We do not accept the concession. Rather, we conclude the sentencing minutes contain a clerical error.
As previously stated, the information alleged defendant served six prior prison terms within the meaning of section 667.5, subdivision (b). One of these arose from the 2012 conviction, which also gave rise to a five-year enhancement pursuant to section 667, subdivision (a).
The parties accurately observe that a sentence cannot be enhanced both for a prior conviction and for a prison term imposed for the same conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1144-1145.) Rather, "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (Id. at p. 1150.)
Here, the clerk's sentencing minutes reflect dismissal of "ALLEGATION NUMBER 9," but the imposition of a five-year enhancement, pursuant to section 667, subdivision (a), for "ALLEGATION NUMBER 3" and a consecutive one-year enhancement, pursuant to section 667.5, subdivision (b), for "ALLEGATION NUMBER 4." Counting the section 12022.7 allegation as number 1 with respect to count 3 of the information, as it appears the clerk did, allegation number 3 is the serious felony enhancement, and allegation number 4 is the prior prison term enhancement, arising from defendant's 2012 conviction.
Allegation number 9 involves a 1985 conviction and prison term resulting from a violation of section "484/666." The abstract of judgment shows the imposition of five 1-year enhancements pursuant to section 667.5, subdivision (b), but does not specify the basis therefor.
At sentencing, however, the trial court stated: "[I]t's going to be ordered that the Defendant[] [is] to serve the upper term of 12 years regarding Count 3. Serve an additional three years pursuant to [section] 12022.7, and an additional five years pursuant to [section] 667(a), and five more years based on five sections [sic] of 667.5(b). Although the Defendant was found guilty of six violations of [section] 667.5(b), one of them was unable to be utilized as the same term of imprisonment as the [section] 667(a) enhancement. [¶] . . . [¶] Therefore, the Defendant will be sentenced as follows: [¶] As to Count 3, a violation of . . . [s]ection 273A(a) with the [section] 667(e) prior, probation will be denied and the Defendant will be sent to the Department of Corrections for the upper term of 12 years; that sentenced [sic] to be enhanced by three years pursuant to section 12022.7 . . . ; that sentence to be further enhanced by five years pursuant to section 667(a) . . . ; . . . that sentence to be further enhanced by five years . . . pursuant to five sections [sic] of 667.5(b) . . . , for a total fixed term of 25 years." (Italics added.)
It is clear from the foregoing that the trial court did not impose a one-year enhancement for the 2012 conviction. Because the court's oral pronouncement of judgment is, under the circumstances, entitled to greater credence than the clerk's minutes, the oral pronouncement of the court controls. (People v. Smith (1983) 33 Cal.3d 596, 599; People v. Rodriguez (2013) 222 Cal.App.4th 578, 586, disapproved on another ground in People v. Hall (2017) 2 Cal.5th 494, 503-504, fn. 2.)
In our original opinion, we ordered correction of the sentencing minutes to reflect dismissal of allegation number 4 and imposition of a one-year enhancement for allegation number 9. (See People v. Mesa (1975) 14 Cal.3d 466, 471; In re Candelario (1970) 3 Cal.3d 702, 705.) In light of our conclusion, post, that the one-year enhancement for allegation number 9 must be stricken, however, it would be unnecessarily confusing to direct correction of the minutes to show imposition of that enhancement and then to modify the judgment to strike that same enhancement.
III
THE 1985 AND 1989 CONVICTIONS
Sentencing took place on February 24, 2016. Pursuant to section 667.5, subdivision (b), the trial court imposed a one-year enhancement for defendant's service of a prison term as a result of his 1989 conviction, in Monterey County Superior Court case No. CR14503, for violating Health and Safety Code section 11350, subdivision (a). The court imposed an additional one-year enhancement for defendant's service of a prison term as a result of his 1985 conviction, in Monterey County Superior Court case No. CR11173, for violating sections 484 and 666. On September 7, 2017, the Monterey County Superior Court granted defendant's applications to have these felony convictions designated as misdemeanors. (§ 1170.18, subd. (f).)
The information erroneously shows both cases as arising in Kern County Superior Court.
By previous order, we have taken judicial notice of the Monterey County Superior Court's order reducing defendant's 1989 conviction. We now grant defendant's request for judicial notice of the Monterey County Superior Court's order reducing defendant's 1985 conviction.
Defendant now contends the one-year enhancements imposed in his current case for the 1985 and 1989 convictions must be stricken, because the underlying felony convictions were reduced to misdemeanors for all purposes pursuant to Proposition 47. The Attorney General concedes defendant is entitled to the relief requested.
In People v. Call (2017) 9 Cal.App.5th 856, 859-860, we summarized the voter initiative known as Proposition 47 as follows: "Proposition 47 was enacted by voters on November 4, 2014, and went into effect the next day. [Citations.] It reduced certain felony or wobbler drug- and theft-related offenses to misdemeanors, unless committed by a defendant who was ineligible because he or she had a prior conviction for a 'super strike' offense specified in section 667, subdivision (e)(2)(C)(iv) or an offense requiring sex offender registration pursuant to section 290, subdivision (c). [Citations.] Insofar as is pertinent here, it also provided a mechanism by which a person who completed his or her sentence for a conviction of a felony that was made a misdemeanor by the [voter initiative] could apply to the trial court that entered the judgment of conviction and have the felony offense designated as a misdemeanor. (§ 1170.18, subds. (f), (g).)" Subdivision (k) of section 1170.18 provides, with exceptions not pertinent here, that when a felony conviction has been redesignated as a misdemeanor, it "shall be considered a misdemeanor for all purposes . . . ."
In Buycks, supra, 5 Cal.5th 857, the California Supreme Court concluded that "a successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect." (Id. at p. 879.) The court explained:
"[I]n describing the elements required for the imposition of a section 667.5, subdivision (b) enhancement, we have stated it 'requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.' [Citation.]
"With this understanding, the resentencing of a prior underlying felony conviction to a misdemeanor conviction negates an element required to support a section 667.5 one-year enhancement. A successful Proposition 47 petition or application can reach back and reduce a defendant's previous felony conviction to a misdemeanor conviction because the defendant 'would have been guilty of a misdemeanor under' the measure had it 'been in effect at the time of the offense.' (§ 1170.18, subds. (a), (f).) Therefore, if the 'felony conviction that is recalled and resentenced . . . or designated as a misdemeanor' conviction becomes 'a misdemeanor for all purposes,' then it can no longer be said that the defendant 'was previously convicted of a felony' [citation], which is a necessary element for imposing the section 667.5, subdivision (b) enhancement. Instead, 'for all purposes,' it can only be said that the defendant was previously convicted of a misdemeanor.
"Consequently, section 1170.18, subdivision (k) can negate a previously imposed section 667.5, subdivision (b), enhancement when the underlying felony attached to that enhancement has been reduced to a misdemeanor under the measure." (Buycks, supra, at pp. 889-890, fn. omitted.)
In Buycks, supra, 5 Cal.5th at page 883 and footnote 9, the California Supreme Court cited, with express approval of its reasoning, People v. Evans (2016) 6 Cal.App.5th 894, review granted February 22, 2017, S239635, review dismissed September 26, 2018 (Evans). In that case, Evans was sentenced after Proposition 47 went into effect. His sentence included a one-year enhancement, pursuant to section 667.5, subdivision (b), for an offense that was designated as a misdemeanor shortly after the enhancement was imposed. (Evans, supra, at p. 898.) The Court of Appeal held the enhancement must be stricken. (Ibid.) It agreed with the People that Proposition 47 does not apply retroactively to enhancements, and so the measure does not allow courts to strike prior prison term enhancements imposed prior to Proposition 47 based on prior convictions designated as misdemeanors after judgment and sentence have become final. (Evans, supra, at p. 902.) Because Evans's sentence was not yet final, however, as his case was pending on appeal, he was entitled to receive the benefits of section 1170.18, subdivision (k), and to have his sentence corrected on appeal. (Evans, supra, at pp. 902, 904.)
Taken together, Buycks and Evans require us to strike the enhancements imposed for defendant's 1985 and 1989 convictions. In light of our conclusion in this regard, we need not address defendant's claim his trial attorney violated defendant's constitutional right to the effective assistance of counsel by failing to obtain an order designating the prior conviction as a misdemeanor prior to defendant's sentencing hearing in the present case.
In Buycks, the California Supreme Court noted that "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citation.]" (Buycks, supra, 5 Cal.5th at p. 893.) The court found this rule applicable in the Proposition 47 context. (Buycks, supra, at pp. 893-894.) It further found, however, that where the sentencing court had imposed the maximum possible term, regardless of whether the enhancement at issue was stricken, there was "no need to remand the matter to the trial court to exercise its sentencing discretion anew." (Id. at p. 896, fn. 15.) Such is the situation in the present case. --------
DISPOSITION
The one-year enhancement imposed, pursuant to Penal Code section 667.5, subdivision (b), for defendant's 1985 conviction in Monterey County Superior Court case No. CR11173 (allegation No. 9), and the one-year enhancement imposed, pursuant to Penal Code section 667.5, subdivision (b), for defendant's 1989 conviction in Monterey County Superior Court case No. CR14503 (allegation No. 7), are stricken. As so modified, the judgment is affirmed.
The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modification and the resulting total sentence of 23 years 0 months in prison, and to forward a certified copy of same to the appropriate authorities.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.