Opinion
C082106
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. PATRICK JAMES TWIFORD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F5848)
Defendant Patrick James Twiford stole merchandise from a store. After detaining him, authorities found a 14-inch piece of rebar in his backpack. The rebar had been modified to have a handle. A jury found defendant guilty of possessing a deadly weapon, specifically a billy club, and he pleaded no contest to petty theft. On appeal, he contends: (1) insufficient evidence supports his conviction of possessing a billy club; (2) the prosecutor committed misconduct by misstating the crime's elements during her argument; (3) the statute making it unlawful to possess a billy club violates the Second Amendment facially and as applied; and (4) an enhancement imposed on a felony prison prior must be stricken as it was imposed on a conviction that had been reduced to a misdemeanor under Proposition 47. Except to strike the prison prior, we affirm the judgment.
I. BACKGROUND
An employee at The Home Depot observed defendant concealing merchandise down his shorts. The employee stopped defendant after he left the store and brought him back to the employee's office. Defendant had left a wire cart outside that held his belongings; he brought the cart with him into the office. He placed some of the merchandise he had concealed on the desk: two Gerber knives, batteries, and black parachute cord, or paracord, as the parties call it.
Redding Police Officer Dean Adams arrived and searched defendant. He found a package of beef jerky and a packaged knife in defendant's waistband. Defendant admitted he took those items from The Home Depot.
Officer Adams also searched a backpack defendant was wearing. Inside, he found a 14-inch piece of rebar. Paracord wrapped around one end of the rebar served as a handle and allowed the holder to put his hand through a strap to hold the rebar. The rebar was in the backpack with the handle up, towards the top of the backpack, so all defendant had to do to grab it was unzip the backpack and reach in.
In his 22 years of experience, Officer Adams had seen billy clubs "similar" to defendant's rebar. Based on his training and experience, he concluded an item like defendant's was either "a defensive weapon or an offensive weapon." A. Defense
Defendant's treating physician testified that defendant had a condition known as a foot drop. He was unable to lift his foot at the ankle or turn it to the outside, so he would lift his leg higher while walking to keep his foot from dragging. The condition affected defendant's ability to stabilize himself while walking. He received a plastic foot orthotic to support his foot so it would not drop and to help with stability.
Defendant testified. He admitted prior convictions for commercial and residential burglary, vehicle theft, and providing false identification to a police officer. He pleaded guilty to all of those crimes. He also admitted a prior conviction for possessing a dangerous weapon. Defendant admitted taking the items from The Home Depot. He kept his backpack on him "at all times." It was zipped closed while he was at The Home Depot.
Defendant stated he was homeless. He kept all of his personal belongings in his wire cart. He kept the rebar in the backpack because that was where he kept his "tools." He used it to hammer his tent stakes into the ground, as a weight on his tent flaps, to clip rope onto it and throw it over tree branches to lift the center of his tent up, and for "dumpster diving" to obtain recyclables. He would hang over the dumpster and use the rebar to pick up bags, cans, and bottles and to crush cans. The paracord strap kept him from losing the rebar.
To defendant, the rebar was not a weapon. He had never used it as a weapon and never intended it to be a weapon. He had knives and his fists for protection. Defendant claimed he had never used a weapon before.
Under cross-examination, defendant stated he kept his tools in his cart. He kept screwdrivers, butter knives, rocks, rope, wrenches, and other similar items in the cart. He kept his tools there because he liked to keep them with his camping equipment. Defendant also stated he was a "neat freak" and his backpack was neat and organized. As a result, he could tell someone what was in it and where it was at. When asked why he did not use a long stick that can do the same thing as the rebar, defendant said he did not want to carry a long stick. B. Rebuttal
Officer Adams on rebuttal testified that defendant told him he used the rebar as a weight or a hammer. Defendant did not mention he used the rebar to break bags, dumpster dive, obtain recyclables, crush cans, or throw over a tree. C. Judgment and Sentence
A jury found defendant guilty of one count of unlawfully possessing a deadly weapon, specifically a billy club. (Pen. Code, § 22210.) The trial court found true allegations that defendant had a prior "strike," a 2008 conviction for first degree burglary, within the meaning of section 1170.12, and he had two prison priors within the meaning of section 667.5, subdivision (b). Defendant also pleaded no contest to one count of petty theft. (§§ 484, subd. (a), 488.)
Undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to a state prison term of six years, calculated as follows: The middle term of two years for the billy club possession offense, doubled pursuant to second 1170.12, plus consecutive one-year terms for each of the prison priors. The court sentenced defendant to a concurrent term of 180 days for the petty theft.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends insufficient evidence supports his conviction of possessing a billy club. He admits the evidence established he possessed a piece of rebar in his backpack that was affixed with a paracord strap and was similar to a billy club. However, he asserts insufficient evidence supports the finding he possessed the rebar as a weapon. We disagree.
Section 22210 prohibits any person from possessing "any instrument or weapon of the kind commonly known as a billy . . . ." (§ 22210.) "Under California law, an object with innocent uses may fall within the terms of section [22210] if the prosecution proves 'that the object was possessed as a weapon. The only way to meet that burden is by evidence "indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose." [Citation.] The evidence may be circumstantial, and may be rebutted by the defendant with evidence of "innocent usage." ' (People v. Fannin (2001) 91 Cal.App.4th 1399, 1404,[]; see id. at p. 1406 [ordinary bicycle lock could be 'slungshot' for purposes of § [22210]].) As explained in [People v.] King [(2006)] 38 Cal.4th [617,] 624, 'an item commonly used for a nonviolent purpose, such as a baseball bat or a table leg, could qualify as a billy, but only "when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose." ' (Italics added.)
The quoted opinion refers to section 22210's predecessor, former section 12020, subdivision (a)(1). Before its repeal in 2012, that statute prohibited persons from possessing "any instrument or weapon of the kind commonly known as a . . . billy." (Stats. 2008, ch. 699 (Sen. Bill No. 1241) § 18.)
"Our Supreme Court in People v. Grubb (1965) 63 Cal.2d 614, 616, 621 (Grubb), considered whether a baseball bat from which the handle had been broken could be considered a billy. The court 'h[e]ld that the statute embraces instruments other than those specially created or manufactured for criminal purposes; it specifically includes those objects "of the kind commonly known as a billy." [Citation.] . . . The Legislature thus decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger. Accordingly the statute would encompass the possession of a table leg, in one sense an obviously useful item, when it is detached from the table and carried at night in a "tough" neighborhood to the scene of a riot. On the other hand the section would not penalize the Little Leaguer at bat in a baseball game.' (Id. at p. 621.) The court concluded that in the circumstances of that case, 'the possession of [an] altered baseball bat, taped at the smaller end, heavier at the unbroken end, carried about in the car, obviously usable as a "billy," clearly not transported for the purpose of playing baseball, violates the statute.' (Ibid.)" (People v. Davis (2013) 214 Cal.App.4th 1322, 1327-1328 (Davis).)
There was sufficient evidence here from which the jury could find defendant possessed the rebar as a weapon. First, he modified the rebar, making it easier to use as a weapon. Officer Adams explained the rebar was wrapped at one end in paracord to serve as a handle. The paracord also formed a strap through which a person could insert his hand to hold the rebar with the strap around his wrist. He had seen similar objects during his career, and in his opinion, defendant possessed the modified rebar as either a defensive weapon or an offensive weapon. He stated the rebar could easily be used to strike someone: "[I]t would be easy to take and hit—either backhand you could hit somebody, you could pull it out over the top, you could swing, just the way you swing a club or a baseball bat." He demonstrated to the jury how the rebar could be held. These modifications suggest defendant possessed the rebar as a weapon.
Second, defendant possessed the rebar while he was committing a crime. Instead of leaving the rebar in his cart with his other tools, he placed it in his backpack, left his cart outside, and, wearing his backpack inside The Home Depot, began stealing merchandise. He testified he knew what was in his backpack and where things were located. The rebar was positioned with the handle towards the top of the opening of the backpack, such that he had only to reach back to grab it by its paracord handle. The jury could have reasonably concluded he made the rebar easily accessible while he stole merchandise in order to use it as a weapon if necessary.
Third, defendant testified he was homeless. Although he stated he had his knives and his fists for protection, the jury could reasonably conclude he also maintained possession of the rebar as a means to protect himself in light of his homelessness.
From the evidence of the attendant circumstances, the modifications defendant made to the rebar, his possessing it inside The Home Depot as he stole merchandise while leaving his other tools outside, and his physical circumstances while being homeless, the jury could reasonably conclude he possessed the rebar as a weapon.
Defendant contends the evidence indicates otherwise. Although he possessed the rebar while he was stealing, he claims there was nothing inherently dangerous about petty theft in general or the circumstances of his location in particular. The evidence showed he was calm, cooperative, and never exhibited any signs of aggression. The rebar was in his closed backpack, and he modified it only to help him not to lose it. And the prosecution never presented any evidence of defendant actually using the rebar as a weapon.
We do not dispute defendant's contentions. But whether defendant possessed the rebar as a weapon was a question of fact for the jury to decide, not for us to resolve. The jury heard all of the facts presented above, and it determined defendant possessed the rebar as a weapon. We hold substantial evidence supports that determination. B. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during closing argument by misstating the elements of section 22210. He claims the prosecutor repeatedly told the jurors they needed to find only that defendant possessed the rebar in order to find him guilty of possessing a deadly weapon without determining whether he possessed the rebar as a weapon. Defendant failed to object to all but one of the instances he raises here. As to those instances, he argues his trial counsel rendered ineffective assistance in failing to object.
" 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' " (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) A defendant is excused from objecting or requesting an admonition if either would be futile. (Ibid.) There is no evidence an objection or a request for an admonition would have been futile. Defendant thus has forfeited his claim to the extent he did not object.
However, because defendant asserts ineffective assistance, we must address the merits of his claims of misconduct in order to determine whether, under the circumstances, counsel rendered deficient performance by not objecting and whether defendant was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694].) Because we find the prosecutor did not commit misconduct, we also reject defendant's claim of ineffective assistance. Counsel did not render deficient performance by not making unsupported objections.
" '[I]t is improper for the prosecutor to misstate the law generally (People v. Bell (1989) 49 Cal.3d 502, 538), and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.' " (Hill, supra, 17 Cal.4th at pp. 829-830.)
Defendant contends the prosecutor misstated the law by omitting an element of the crime. To convict defendant of unlawfully possessing a deadly weapon, the prosecution had to prove (1) defendant possessed a billy club, (2) he knew he possessed a billy club, and (3) he possessed the billy as a weapon. (See CALCRIM No. 2500.) Defendant asserts the prosecutor, in her argument, omitted the third element, possession as a weapon, and argued the jurors could convict merely on proof that defendant possessed the billy club. We disagree. When viewed in their context, the prosecutor's statements informed the jurors they could convict only on proof of all three elements.
Defendant directs us to statements where the prosecutor said generally that all defendant had to do to be guilty was possess the billy club. The record, however, shows the prosecutor made those statements when referring to the first element of the crime. The record shows she also argued that defendant possessed the rebar as a weapon. For example, defendant directs us to the following statement by the prosecutor:
"Now, what I want to be clear on and what the jury instructions are clear on is that the intention here is the possession, not of the use as a weapon. Nowhere in the jury instructions does it say that the defendant had to intend to use the object as a weapon. The only intention is that he possessed it." (Italics added.)
Defendant omits the prosecutor's next statement, which makes clear she was referring only to the crime's possession element, and that she still had to prove defendant possessed the billy club as a weapon. She said:
"Now, the second element is that the defendant knew that he had possessed a billy club. And I'm going to hit that one last because I think the important instruction is number three where it says that the defendant possessed the object as a weapon. And when deciding whether the defendant possessed the object as a weapon, you can consider all surrounding circumstances . . . ." (Italics added.) From this point, the prosecutor argued at length about how the surrounding circumstances proved defendant possessed the billy club as a weapon.
Defendant faults the prosecutor for saying: "It is unlawful to possess an apparatus such as this, which is used specifically as a billy club." But this statement occurred as part of the prosecutor's summation of the jury instruction. After arguing how the circumstances showed defendant possessed the billy as a weapon, the prosecutor stated:
"Now, this is—this is not a case that's a crime of the century. I'm not going to stand up here and tell you, you know what, you need to feel really passionately about this or there's a victim involved or, you know, someone has been crying or anything like that. It's not. And I'm not going to sit here and pretend that it is. But what I am going to tell you is based on those instructions, this is illegal. It is unlawful to possess an apparatus such as this, which is used specifically as a billy club." (Italics added.) The record shows the prosecutor made her last statement in the context of the three elements she had just explained to the jury.
Defendant next attacks a statement the prosecutor made at the end of her argument:
"This case doesn't have a victim but it could have had a victim. I mean, that's the thing, but the intent to use it as one, he didn't have to have it out of his backpack, he didn't have to intend to use it on [the store employee] or Officer Adams or even you guys. All he had to do was intend to have it on his person, and it was in his backpack with that intention." (Italics added.)
Defendant ignores the prosecutor's immediately prior statements, where she clearly addressed the crime's other two elements:
"Now once again, I can easily stick my hand in here [the strap] around my wrist and grab it. What other purpose does this have? What other reasonable purpose does this have then to use it in some kind of dangerous manner, and that's what element three is. And when we got back to element two that the defendant knew that he possessed it, he did." (Italics added.)
Defendant next attacks statements the prosecutor made in her rebuttal. He first focuses on the following, as he provided it to us in his brief:
"Once again, intent to use it as a weapon is not an element of this crime. . . . At no point in any of these instructions does it say that he had to intend to use it, that he had to possess it in a threatening manner or on his person visible to everyone and anyone. Just the fact that it was on his person and it was. It was in his backpack. Just because a gun is in a backpack, still makes it a gun." (Defendant's italics.) But as part of his ellipsis in the quote, defendant omits this statement by the prosecutor: "And in this case, as [defense counsel] showed you but I just underlined all of it, this is what's required. That he possessed a billy club, that he knew he possessed it, and that he possessed the object as a weapon." (Italics added.) Here, the prosecutor was clarifying what she had to prove, and she in no way indicated she did not have to prove defendant possessed the billy club as a weapon.
Also during rebuttal, the prosecutor analogized a dirk or dagger to defendant's use of the rebar, stating that even though those weapons could have innocent uses, they were still weapons. She continued: "And even though the only thing you've ever done with [the dirk or dagger] is slice those apples, those golden delicious—if it's on you and it's in your possession, you are still possessing a weapon and that's the crux of it. [¶] That's why you have to follow the law and that's why all of the elements are met. It's not about slicing apples; it's about possessing that instrument, and here that instrument was a rebar with a manufactured handle." (Italics added.)
Defense counsel objected at this point, asserting the statement was a misstatement of the law. The court agreed the analogy to a dirk or dagger "might be oversimplification" and not "the best example of that factor," and it instructed the jury to ignore the example. The court continued: "It really doesn't apply in this particular situation because in this particular situation, it doesn't matter whether the object is concealed or visible. It's the character of the object. If you find that it's a billy club, you know, what's the purpose of that? Is it possessed as a weapon? That's—that's the issue." (Italics added.)
The prosecutor responded: "And that's kind of the point I was trying to make, and I apologize if it came out wrong. But that's the thing. Whatever he's using that rebar for, the fact of the matter is it's a weapon. And no matter what you're slicing apples with, if that's a weapon and it's in your possession, it's still a weapon."
In this instance, counsel objected and the court gave the jury an admonishment. In doing so, the court emphasized the very point defendant claims the prosecutor did not make. The issue was whether he possessed the rebar as a weapon. The prosecutor then addressed that issue by arguing the rebar was a weapon.
Finally, to conclude her rebuttal, the prosecutor clearly argued the point defendant claims she ignored: "So what's reasonable, ladies and gentleman? And that's the question. And the only reasonable conclusion is that he had this as a weapon. He didn't have to intend to use it as a weapon, he didn't need to have it out as a weapon, and he didn't have to tell everyone it was a weapon. All he had to do was possess it. And he possessed a rebar with the strap that perfectly fit his arm for defense or any offensive attacks that may happen. And because of that, he must be found guilty of Penal Code Section 22210." (Italics added.)
From the above, it is apparent the prosecutor did not commit misconduct. She emphasized throughout her arguments that she had to prove defendant possessed the billy club as a weapon. Defendant's incomplete excerpts of the prosecutor's arguments do not establish she misstated the law. We also hold defendant did not suffer ineffective assistance due to counsel's failure to object to the other statements, as any such objection would have been overruled. C. Constitutionality of Section 22210
Defendant contends section 22210 is unconstitutional on its face and as applied to this case. He argues the statute violates his right under the Second Amendment to carry a weapon such as a billy club for self-defense. We disagree.
Section 22210's ban on possessing billy clubs is not unconstitutional facially or as applied here. (Davis, supra, 214 Cal.App.4th at pp. 1331-1333.) The Davis case guides our analysis here. Police found the defendant in Davis in possession of a baseball bat. A number of holes had been drilled through the handle, and it had a leather wrist strap. It had been painted black and had red lightning bolts on it. (Id. at p. 1325.) The defendant there raised the same contention defendant raises here, that section 22210's ban on possessing a billy club violates the Second Amendment under District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), held applicable to the states in McDonald v. City of Chicago (2010) 561 U.S. 742 . (Davis, supra, at p. 1330.) The First District Court of Appeal rejected the argument, and we agree with its reasoning: The Second Amendment does not protect weapons such as billy clubs, which are not typically possessed by law-abiding citizens for lawful purposes.
"In Heller, the high court concluded that 'the Second Amendment extends, prima facie, to all instruments that constitute bearable arms . . .' ([Heller], supra, 554 U.S. at p. 582[]), including 'those [weapons] "in common use at the time" ' the Second Amendment was enacted ([id.] at p. 627). However, the court recognized that certain regulations—such as laws prohibiting possession of firearms by felons and the mentally ill, forbidding the carrying of firearms in sensitive places, and imposing conditions on commercial sale of arms—were 'presumptively lawful.' (Id. at pp. 626-627 & fn. 26.) The court also explained that 'the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.' (Id. at p. 625.)" (Davis, supra, 214 Cal.App.4th at p. 1331.)
The Attorney General argued in Davis, as he argues here, that a billy club is not the sort of weapon "typically possessed by law-abiding citizens for lawful purposes" (Heller, supra, 554 U.S. at p. 625), and thus falls outside Second Amendment protection. (Davis, supra, 214 Cal.App.4th at p. 1331.) The Davis court agreed: "This argument is supported by the California Supreme Court's discussion in Grubb, which stated that in enacting section 12020 [section 22210's predecessor], '[t]he Legislature obviously sought to condemn weapons common to the criminal's arsenal; it meant as well "to outlaw instruments which are ordinarily used for criminal and unlawful purposes." [Citations.]' (Grubb, supra, 63 Cal.2d at p. 620.) Similarly, in People v. Mulherin (1934) 140 Cal.App. 212, 215 (Mulherin), the court concluded that in prohibiting possession of instruments or weapons of the kind commonly known as a blackjacks or billies, the Legislature's purpose 'undoubtedly was to outlaw instruments which are ordinarily used "for criminal and improper purposes" [citations], and so we have in this act "a partial inventory of the arsenal of the 'public enemy,' the 'gangster' " [citation], and a prohibition against owning anything "of the kind." ' (Italics added.)" (Davis, supra, 214 Cal.App.4th at p. 1331.)
"The high court has stated that the Second Amendment 'does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes . . . .' (Heller, supra, 554 U.S. at p. 625.) It is for the Legislature to decide what weapons meet that definition, and this court ' must uphold the statute unless its unconstitutionality plainly and unmistakably appears.' " (Davis, supra, 214 Cal.App.4th at p. 1333, fns. omitted.)
Defendant offers no evidence indicating billy clubs are weapons typically possessed by law-abiding citizens for lawful purposes. Instead, he relies on a reported decision by the Oregon Supreme Court, State v. Kessler (1980) 289 Ore. 359 , which invalidated a statute prohibiting possession of a billy club at home as violating the Oregon Constitution's right to bear arms for self-defense. The Oregon court noted the club "is considered the first personal weapon fashioned by humans. [Citation.] The club is still used today as a personal weapon, commonly carried by the police." (Id. at pp. 371-372.) But even the defendant there "concede[d] that the legislature could prohibit carrying a club in a public place in a concealed manner." (Id. at p. 372.)
The case does not apply here. It addresses a foreign state's constitutional right to possess weapons in the home, not any Second Amendment right to carry concealed weapons in public. And we need not decide under these facts whether any prescription by section 22210 against possessing billy clubs in the home is unconstitutional.
Defendant cites to Peruta v. County of San Diego (9th Cir. 2016) 824 F.3d 919, cert. den. (2017) 137 S.Ct. 1995 ), to claim the individual right to bear arms extends outside the home. However, he cites to the dissenting opinion, which made that argument. (Id. at p. 946.) The majority actually held "the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public." (Id. at p. 924.) Whether or not the Second Amendment protects a right to carry arms in public for purposes of self-defense, we would create anomalous jurisprudence indeed were we to accept defendant's argument and hold the Amendment protects a right to carry and conceal weapons in public while committing a crime.
We thus agree with Davis that the Second Amendment does not create a right to carry a concealed billy club in public, as a billy club is not a weapon typically possessed by law-abiding citizens for lawful purposes. "In this day and age, as we are all painfully aware, it is often a gun—not a billy, sap, or blackjack—that is the weapon of choice in most violent crimes. That fact, however, does not negate the Legislature's determination that the kind of weapons known as billies, blackjacks, and saps are also instruments which are ' "ordinarily used for criminal and unlawful purposes" ' (Grubb, supra, 63 Cal.2d at p. 620) and defendant has not demonstrated otherwise." (Davis, supra, 214 Cal.App.4th at p. 1333, fns. omitted.) D. Prior Prison Enhancement
Because we conclude the Second Amendment does not apply, we need not address defendant's contentions that section 22210 fails to satisfy strict or intermediate scrutiny, or that it is unconstitutional as applied. --------
Defendant contends we must strike one of his prison prior enhancements imposed under section 667.5, subdivision (b), because it was imposed on a conviction that had been reduced to a misdemeanor under Proposition 47 before this matter was adjudicated. The Attorney General agrees with defendant on this point, as do we.
In 2014, defendant was convicted of second degree burglary. (§ 459.) On May 12, 2015, following a petition for resentencing under section 1170.18, his sentence was recalled and he was resentenced to misdemeanor shoplifting. (§ 459.5.) The trial court sentenced defendant to six months in jail with credit for time served.
Defendant committed the current crime on September 21, 2015, and the jury found him guilty on March 18, 2016. Although the trial court recognized the earlier felony conviction had been reduced to a misdemeanor, it nonetheless found the felony prison prior true and sentenced defendant to one year in prison for it. This was error.
By the time the trial court adjudicated the enhancement, the prior offense was a misdemeanor "for all purposes." (§ 1170.18, subd. (k).) Thus, at the time the trial court was called upon to find defendant was previously convicted of a felony, an element of section 667.5, subdivision (b), it could no longer properly find defendant had sustained the prior felony conviction as alleged. The now-reduced conviction at issue had ceased to exist as a felony; in its place was a previous misdemeanor conviction "for all purposes. These purposes include the adjudication of charged enhancements." (People v. Kindall (2016) 6 Cal.App.5th 1199, 1205.) The enhancement thus cannot stand.
III. DISPOSITION
The judgment is modified to strike the prior prison enhancement imposed under section 667.5, subdivision (b) based on the trial court's finding defendant was convicted in 2014 of second degree burglary under section 459. As modified, the judgment is affirmed. The trial court is ordered to prepare an amended and corrected abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.
/S/_________
RENNER, J.
We concur:
/S/_________
BLEASE, Acting P. J.
/S/_________
MAURO, J.