Opinion
D073554
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. ERIC LEWIS DAVIS, Defendant and Appellant.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Amanda E. Casillas, and Michael Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD273996) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed as modified. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Amanda E. Casillas, and Michael Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.
Yelling, "You're going to die," Eric Lewis Davis chased John M. with a seven-inch knife and got an arm's length away from stabbing him. A jury convicted Davis of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 1) and making a criminal threat (§ 422, count 2). The jury also found that with respect to both offenses, Davis personally used a dangerous and deadly weapon. Subsequently, the court found that Davis suffered two prison priors. The court struck these enhancements for purposes of sentencing and sentenced Davis to four years in prison.
Undesignated statutory references are to the Penal Code.
Davis contends his convictions should be reversed because the trial court (1) failed to sua sponte instruct on simple assault as a lesser included offense of aggravated assault, and (2) erroneously instructed on "deadly weapon," permitting the jury to convict on an erroneous theory. The Attorney General concedes that alternative-theory error occurred, but asserts that error was harmless. Davis also contends that in light of a recent amendment to section 667.5, subdivision (b), his two prison priors should be stricken.
PROCEDURAL HISTORY
In an opinion filed in April 2019, we affirmed Davis's judgment in full after concluding that the alternative-theory instructional error was "harmless beyond a reasonable doubt." (People v. Davis (Apr. 3, 2019, D073554) [nonpub. opn.] [2019 Cal.App.Unpub. LEXIS 2315, at *19] (Davis I).) However, citing People v. Stutelberg (2018) 29 Cal.App.5th 314 (Stutelberg), we also stated that had the jury been properly instructed "there is no reasonable probability" that the jury would have acquitted Davis of assault with a deadly weapon. (Davis I, at p. *20.)
Davis filed a rehearing petition, raising only (and for the first time) whether certain fees and fines the court imposed as part of his sentence were unlawful under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was decided more than a month before oral argument. We denied the petition.
Davis petitioned for review, asserting that alternative-theory instructional error is harmless only if the record "affirmatively" demonstrates that the jury based its verdict on the legally correct theory. The California Supreme Court granted review and held the matter pending its decision in People v. Aledamat (2018) 20 Cal.App.5th 1149, review granted July 10, 2019, No. S255605.
Davis also sought review on the Dueñas issue.
Subsequently, in People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), the Supreme Court held that the harmless-beyond-a-reasonable-doubt standard articulated in Chapman v. California (1967) 386 U.S. 18, 24 applies when the jury is instructed on a legally erroneous theory. (Aledamat, at p. 3.) In a footnote, the Supreme Court stated:
"Although Stutelberg, supra, 29 Cal.App.5th 314, purported to apply the Chapman test, it concluded its harmless error analysis as to one count as follows: 'Had the jury been provided only with the "deadly or dangerous as used" theory and not the inapplicable "inherently deadly weapon" theory, there is no reasonable probability it would have rejected the deadly weapon enhancement on count 1.
Therefore, the instructional error was harmless beyond a reasonable doubt.' " [Citation.] But the reasonable probability test is different and more lenient than the reasonable doubt test that applies here. (See People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability test applies to errors of state law].)
Reviewing courts must apply the Chapman test to error of this kind, not the inapplicable Watson test." (Aledamat, supra, 8 Cal.5th at p. 9, fn. 4.)
The Supreme Court transferred the matter back to this court with directions to vacate our prior decision and to reconsider in light of this footnote.
Meanwhile, the Legislature enacted Senate Bill No. 136 (Sen. Bill No. 136), (Stats. 2019, ch. 590), which amended section 667.5, subdivision (b) to apply only where the prison prior was for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code[.]" That amendment became effective on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c).) In supplemental briefs, Davis contends (1) the alternative-theory error is prejudicial under Aledamat, supra, 8 Cal.5th 1; and (2) under Sen. Bill No. 136, we should strike the true finding on the prison priors. The People contend the instructional error is harmless, but agree that Sen. Bill No. 136 applies retroactively.
We vacate our previous decision, modify the judgment to strike the two prison priors, and affirm the judgment as so modified.
FACTUAL BACKGROUND
A. The People's Case
John M. was waiting for a bus in downtown San Diego. He was carrying his skateboard (about 40 inches long) and had some expensive plants that he was delivering.
Davis walked by the bus stop and swatted at John's plants. John, who does not know Davis, told him that the plants "are like my kids. Don't touch my kids."
After walking about half a block away, Davis returned, carrying a knife with a seven-inch blade and said to John, "You're going to die now." John retreated into the street, but Davis chased him aggressively—pointing the knife at John and getting within "striking distance." John used his skateboard as a shield, jabbing it at Davis to keep him away. After a few minutes, police arrived and arrested Davis.
Two witnesses corroborated John's testimony. Jessica D. saw Davis pull the knife from his waistband and testified that Davis, who was acting "aggressively," got within six inches to one foot of John. Jason S., an on-duty security officer, testified that Davis was stabbing at John with the knife and got within an arm's length away.
B. Defense Case
Davis testified that he stopped to look at John's plants because he is a "landscape architecture [sic]." John told him to "get the fuck away from his plant." Davis thought he recognized John as a family friend and extended his hand to shake hands.
Davis testified that John responded by assuming a fighting stance. After the two exchanged harsh words, John poked Davis in the chest with his skateboard and then hit Davis in the lip with the skateboard.
Davis was wearing a backpack that contained tent poles, some food, and a knife. Davis testified that the knife fell out of the backpack when John was attacking him. Davis testified that he retrieved the knife off the ground and immediately returned it to his backpack. He testified that the knife was in his hands only for the "second or two" it took to put it back in his backpack.
On cross-examination, Davis was impeached with four prior felony convictions.
DISCUSSION
I.
THE COURT DID NOT ERR BY FAILING TO INSTRUCT ON SIMPLE
ASSAULT AS A LESSER INCLUDED OFFENSE
Simple assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Davis contends that the trial court had a sua sponte duty to instruct on simple assault as a lesser included offense of assault with a deadly weapon.
However, a trial court must instruct on a lesser included offense only if there is substantial evidence that the defendant is guilty only of the lesser. (People v. Prince (2007) 40 Cal.4th 1179, 1265.) The court has no such obligation "when there is no evidence that the offense is less than that charged." (People v. Breverman (1998) 19 Cal.4th 142, 154, superseded on another ground by amendment of § 189 not relevant here.)
Here, the court had no obligation to instruct on simple assault because the evidence established that if Davis was guilty at all, it was for aggravated assault and not a lesser crime. Davis denied committing any crime; he testified that John assaulted him. In closing argument, Davis's attorney argued that John "was the one who got physical, and [John] is the one who assaulted [Davis], not the other way around." Accordingly, if the jury believed Davis's testimony, it could not have convicted him of simple assault because the jury would have believed that he did not do an act that by its nature would directly and probably result in the application of force to John. "Generally, when a defendant completely denies complicity in the charged crime, there is no error in failing to instruct on a lesser included offense." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.) Davis provides no reason why we should ignore this rule here.
Disagreeing with this result, Davis contends his testimony that the knife fell out of his backpack "is substantial evidence from which the jury could have concluded that he committed assault . . . ." This argument fails because an assault occurs when a person willfully commits an act that by its nature would probably and directly result in the application of force on another person, and the person committing that act is aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act, physical force would be applied to another person. (People v. Navarro (2013) 212 Cal.App.4th 1336, 1345-1346.) Picking a knife off the ground and immediately placing the knife in a backpack is not assault because these acts would not probably and directly result in the application of force to another person.
II.
THE INSTRUCTIONAL ERROR IS HARMLESS
To convict Davis of assault with a deadly weapon, and to make true findings on the deadly weapon enhancements, the jury had to determine whether the knife Davis used was a deadly weapon. The court instructed the jury with the former version of CALCRIM No. 875, which defines "deadly weapon" as follows:
"A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
As revised, this portion of CALCRIM No. 875 now states, "[A deadly weapon other than a firearm is any object, instrument, or weapon [that is inherently deadly or one] that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]" Citing Stutelberg, supra, 29 Cal.App.5th 314, the bench notes state, "Give the bracketed phrase 'that is inherently deadly or one' and give the bracketed definition of inherently deadly only if the object is a deadly weapon as a matter of law."
On the weapon enhancement, the court instructed with a portion of former CALCRIM No. 3145, which similarly defines a deadly weapon, stating:
"A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
As revised, CALCRIM No. 3145 now states in part, "A deadly [or dangerous] weapon is any object, instrument, or weapon that is [inherently deadly] [or] [dangerous] [or one that is] used in such a way that it is capable of causing and likely to cause death or great bodily injury. It also contains a bench note stating, "Give the bracketed phrase 'inherently deadly' and give the bracketed definition of inherently deadly only if the object is a deadly weapon as a matter of law."
Colloquially, a kitchen knife with a seven-inch blade might reasonably be considered to be an "inherently" deadly weapon. However, the legal definition is more nuanced. Whether an object is an inherently deadly weapon "is a term of art describing objects that are deadly or dangerous in 'the ordinary use for which they are designed,' that is, weapons that have no practical nondeadly purpose." (Stutelberg, supra, 29 Cal.App.5th at pp. 318-319.) Thus, dirks and blackjacks are inherently deadly weapons because their ordinary purpose is to injure people; they are "deadly per se." (People v. Brown (2012) 210 Cal.App.4th 1, 6 (Brown).)
"Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.)
The ordinary purpose of a kitchen knife is to cut food, not harm people. Accordingly, an ordinary kitchen knife such as the one involved in this case is not an inherently deadly weapon because it is not dangerous to others in the use for which it is designed. (People v. McCoy (1944) 25 Cal.2d 177, 188.)
However, a kitchen knife, while not inherently deadly, may be a deadly weapon within the meaning of section 245, subdivision (a)(1) when used in a manner capable of causing and likely to cause death or great bodily injury. (Brown, supra, 210 Cal.App.4th at p. 7.) Thus, for the jury to properly find that Davis used a deadly weapon, it would have needed to solely rely on the second definition in CALCRIM Nos. 875 and 3145—that Davis used the knife in a way capable of causing and likely to cause death or great bodily injury.
Davis contends the court erred by telling the jury there were two alternate theories for finding him guilty of assault with a deadly weapon and for finding the personal use enhancement true. One theory was legally correct—that the knife was used in such a way that it was capable of causing and likely to cause death or great bodily injury. However, Davis asserts that the other theory—that the knife was inherently deadly—was legally incorrect. The Attorney General agrees. The parties, however, disagree on whether the error requires reversal.
This issue is governed our Supreme Court's recent decision in Aledamat. There, the defendant was charged with assault with a deadly weapon, a box cutter. As here, the trial court instructed with the former version of CALCRIM No. 875. (Aledamat, supra, 8 Cal.5th at p. 4.) "Because a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons." (Id. at p. 6.) Thus, the Court in Aledamat held that although the instruction accurately stated the law, the evidence did not support it. (Id. at p. 6.)
Nevertheless, Aledamat found the instructional error harmless beyond a reasonable doubt for several reasons—most of which are also present in Davis's case. First, the Court noted that CALCRIM No. 875 juxtaposed "inherently deadly" with "used in such a way that it is capable of causing injury and likely to cause death or . . . great bodily injury," and thus "at least indicates what the 'inherently deadly' language was driving at." (Aledamat, supra, 8 Cal.5th at pp. 13-14.) Additionally, the Court examined counsels' closing arguments and concluded "no one ever suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon. Defense counsel argued that defendant did not use the box cutter in a way that would probably result in the application of force, that is, that defendant did not assault the victim at all— an argument the jury necessarily rejected when it found defendant guilty of that crime. But counsel never argued that, if he did assault the victim with the box cutter, the box cutter was not a deadly weapon." (Id. at p. 14.)
Both of these factors are also present in Davis's case. The trial court gave CALCRIM No. 875, just as in Aledamat, supra, 8 Cal.5th at p. 14. Moreover, Davis concedes that in closing argument, the prosecutor "alluded to the correct definition of a 'deadly or dangerous weapon' in closing. And, as in Aledamat, here too defense counsel never argued that the knife was not a deadly or dangerous weapon. Rather, Davis claimed he was the victim:
The prosecutor stated, "Now we're at definitions for a deadly weapon. In this case it's not a huge issue because of course the weapon was a very large knife obviously capable of inflicting significant or substantial physical injury . . . ."
"Defense counsel: [John] was the one who got physical and [John] is the one who assaulted Mr. Davis, not the other way around. While Mr. Davis was being attacked, he leaned backwards, and he had his backpack on . . . and when he leaned back, the knife fell out of the backpack . . . ."
There is another important similarity. In Aledamat, "[a]lthough defense counsel did not expressly concede that the [weapon] was a deadly weapon, he did not contest the point." (Aledamat, supra, 8 Cal.5th at p. 14.) The Supreme Court concluded it would have been futile for defense counsel to have done so because although a box cutter is not inherently deadly, if used to assault someone, it is potentially deadly. (Ibid.) This was particularly true in light of defendant's statement, " 'I'll kill you.' " (Ibid.)
The same is true here. Davis aggressively chased John, pointing the seven-inch blade at him and threatening, "You're going to die now." It is inconceivable that a jury would conclude that Davis did not use the knife as a deadly weapon.
Aledamat also assessed the prejudicial effect of the instructional error by examining what the jury necessarily found and asked "whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well." (Aledamat, supra, 8 Cal.5th at p. 15.) Elaborating, the Supreme Court stated:
"[U]nder the instructions, the jury necessarily found the following: (1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person.
"Additionally, the jury must have considered the term " 'inherently deadly' " to mean something. . . . [T]he theoretical risk is that, because the court did not define the term, the jury might have applied its common understanding to find the box cutter deadly because it is sharp and used for cutting. [Citations.] But if the jury did so, it would necessarily find the box cutter deadly in the colloquial sense of the term—i.e., readily capable of inflicting deadly harm—and that defendant used it as a weapon.
" 'No reasonable jury that made all of these findings could have failed to find' that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury." (Aledamat, supra, 8 Cal.5th at p. 15.)
The same analysis applies here. The trial court instructed that to convict Davis of assault with a deadly weapon, the jury must find (1) Davis "did an act with a deadly weapon," either inherently or as used; (2) "that by its nature would directly and probably result in the application of force"; (3) Davis "was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone"; and (4) Davis "had the present ability to apply force with a deadly weapon" to a person. The People's entire case was that Davis used the knife to try to stab John. The only way the jury could have convicted Davis of assault with a deadly weapon was if it believed the prosecutor's version of events and disbelieved Davis's testimony that the knife fell out of his backpack while John was attacking him.
Significantly, the jury also convicted Davis of making a criminal threat. Having been instructed with CALCRIM No. 1300, the jury necessarily found that Davis "willfully threatened to kill" John or cause him "great bodily injury" by making a "clear, immediate, unconditional, and specific" threat. Commenting on this count in closing argument, the prosecutor stated:
"[Davis] obviously intended for his threat to kill [John] to be taken seriously because while he was doing that he was also, at the same time, holding that large knife and running after him and jabbing at him such that [John] felt obligated to protect himself with his skateboard."By finding Davis guilty of making a criminal threat, the jury necessarily rejected Davis's testimony that the knife merely fell out of his backpack.
Asserting the error was prejudicial, Davis notes that in Aledamat, the trial court also instructed with an optional portion of CALCRIM No. 3145 directing the jury to consider "all of the surrounding circumstances" in determining whether the object is a deadly weapon. (Aledamat, supra, 8 Cal.5th at p. 14.) Based on this instruction, the Supreme Court concluded, "[I]t seems unlikely the jury would simply view the box cutter as inherently deadly without considering the circumstances, including how defendant used it." (Aledamat, supra, 8 Cal.5th at p. 14.)
"In deciding whether an object is a deadly weapon, consider all of the surrounding circumstances including when and where the object was possessed and any other evidence that indicates whether the object would be used for a dangerous rather than a harmless purpose." (Aledamat, supra, 8 Cal.5th at p. 14.)
Here, the trial court gave CALCRIM No. 3145, but without objection omitted the "surrounding circumstances" portion given in Aledamat. Davis claims this instruction is the "lynchpin" of the harmless error analysis in Aledamat. Because that instruction was omitted, Davis argues, "[T]here is no basis to conclude that the jury would not have simply viewed the knife as inherently deadly without considering how it was used."
This argument fails because in Aledamat, the Supreme Court examined "a number of circumstances" to determine whether alternative-theory error was prejudicial. No one circumstance is necessarily dispositive. (Aledamat, supra, 8 Cal.5th at p. 13.) For example, after discussing the surrounding circumstances instruction that Davis contends is dispositive, the Supreme Court next considered several other factors, including closing arguments, the defendant's threat to kill the victim, and whether findings the jury necessarily made on another count meant the jury found the weapon was deadly as used. (Aledamat, at pp. 14-15.) If, as Davis contends, the surrounding circumstances instruction was the "lynchpin," these other factors would have been irrelevant.
Davis also relies on one of the holdings in Stutelberg, supra, 29 Cal.App.5th 314. Specifically, we concluded the alternative-theory error was prejudicial as to the Stutelberg defendant's assault conviction because "[t]he exact manner in which [the defendant] used the box cutter . . . [was] unclear." (Id. at p. 322.) Davis contends that here too "the evidence of manner of use is unclear and inconsistent" and "[n]obody testified definitively that [Davis] used the knife in such a way that it is capable of causing and likely to cause death or great bodily injury." Though conceding his own testimony may "not inspire confidence," Davis nevertheless contends it "constitutes substantial evidence" that, like the Stutelberg defendant, he did not commit assault.
This argument is untenable. In Stutelberg, the alleged assault victim testified that the defendant may not have even had the box cutter in his hand. (Stutelberg, supra, 29 Cal. App.5th at p. 322.) Moreover, the jury in Stutelberg acquitted the defendant of an assault with a deadly weapon charge associated with another witness, suggesting the jury did not believe testimony that the defendant "jabbed" the box cutter at the victim's face. (Ibid.) These factors compelled the conclusion that "the exact manner in which [the defendant] used the box cutter against [the victim] is thus unclear." (Ibid.) Accordingly, we could not say that the court's error in instructing the jury regarding an inherently dangerous weapon was harmless beyond a reasonable doubt. (Ibid.)
In sharp contrast here, the manner in which Davis assaulted John is clear. John testified that Davis aggressively charged at him with knife in hand, pointing and swinging it at him within striking distance. Jessica testified that Davis pointed the blade outward and got within one foot of stabbing John. The security officer testified that Davis made "a stabbing motion" and thrusted the knife at John while saying, " 'I'm going to get you.' "
It is true that Davis's contrary version of events—that John assaulted him and the knife just fell out of his back pack—may be substantial evidence. That is undoubtedly why the trial court instructed on self-defense. However, this does not mean that Davis's highly implausible version puts the record "in rough equipoise," as he asserts, for assessing whether the error is harmless beyond a reasonable doubt.
III.
THE PRISON PRIOR ENHANCEMENTS MUST BE STRICKEN
When the court sentenced Davis, section 667.5, subdivision (b) provided for a one-year enhancement for each prior separate prison term, unless the defendant remained free from both prison custody and the commission of a new felony for a five-year period after discharge. (Former Pen. Code, § 667.5, subd. (b); People v. Buycks (2018) 5 Cal.5th 857, 889 (Buycks).)
However, Sen. Bill No. 136 amended section 667.5, subdivision (b); it now applies only where the prior was for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code[.]" This amendment became effective January 1, 2020. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.)
Welfare and Institutions Code section 6600, subdivision (b) states: "(b) 'Sexually violent offense' means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a felony violation of Section 261, 262, 264.1, 269, 286, 287, 288, 288.5, or 289 of, or former Section 288a of, the Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal Code, committed with the intent to commit a violation of Section 261, 262, 264.1, 286, 287, 288, or 289 of, or former Section 288a of, the Penal Code." --------
Because the judgment against Davis is not yet final, Davis contends, and the Attorney General concedes, that the amended statute applies. We agree. (People v. Jennings (2019) 42 Cal.App.5th 664, 682.)
Davis's prior prison terms were for a drug offense, domestic violence, and false imprisonment. Because these prior prison terms are not for a statutorily defined sexually violent offense, each of the prison priors can no longer be imposed.
Generally, when an error affects part of a sentence, we must remand for a full resentencing on all counts and allegations. (Buycks, supra, 5 Cal.5th at p. 893.) However, here the trial court already exercised its discretion to strike each of these enhancements "for purposes of sentencing." Accordingly, Davis contends remand is unnecessary and instead we should strike the true findings. The Attorney General disagrees, asserting that because the trial court already struck the prison priors for purposes of sentencing, nothing further is required.
We agree with Davis on this issue. Striking the prison priors for sentencing purposes does not change the fact that the court found beyond a reasonable doubt that Davis suffered prior prison terms within the meaning of section 667.5, subdivision (b). Because Sen. Bill No. 136 has changed that statute, there is no longer substantial evidence to support the trial court's findings. Therefore, the judgment must be modified to strike the prison prior enhancements because the People did not and cannot meet their burden.
DISPOSITION
The judgment is modified to strike both of Davis's one-year prison prior enhancements under Penal Code section 667.5, subdivision (b). The judgment as modified is otherwise affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
O'ROURKE, Acting P. J. WE CONCUR:
DATO, J.
GUERRERO, J.