Opinion
D051954
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. SANTANA BELMONT, Defendant and Appellant.
Not to be Published in Official Reports
A jury convicted Santana Belmont of conspiracy to commit perjury (Pen. Code, § 182, subd. (a)(1); count 1), three counts of perjury by declaration (§ 118, subd. (a); counts 2, 3 & 4), subornation of perjury under oath (§ 127; count 5), and preparing a false paper for a fraudulent purpose (§ 134; count 6). In a bifurcated proceeding, the trial court then found true that Belmont had suffered two prison priors (§§ 667.5, subd. (b)) and a strike prior (§§ 667, subd. (b)-(i), 1170.12). The court sentenced Belmont to a total prison term of 12 years.
All statutory references are to the Penal Code unless otherwise specified.
As part of Belmonts sentence, the court imposed and then stayed the one-year punishment for each of his two prison prior enhancements. Because such punishment should have been stricken rather than stayed (see People v. Jones (1992) 8 Cal.App.4th 756, 758; Cal. Rules of Court, rule 4.420(c)), the court imposed an unauthorized sentence, which is subject to correction on review (People v. Menius (1994) 25 Cal.App.4th 1290, 1295). We therefore order the punishment for such prison prior enhancements stricken and the abstract of judgment, which fails to reflect either prison prior, modified accordingly. (§ 1260.)
Belmont appeals, contending the trial court violated his Sixth Amendment right to counsel by failing to conduct a sufficient Marsden hearing and by refusing to allow him to represent himself at trial. Belmont also claims the court violated the provisions of section 654 by imposing consecutive terms for the three perjury charges. We affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden ).
FACTUAL BACKGROUND
Although Belmont does not challenge the sufficiency of the evidence to support his convictions, we summarize the facts presented at trial to provide some background for our later discussions.
By way of stipulation, the jury was apprised that in July 2003, Belmont had been found guilty of, among other crimes, attempted voluntary manslaughter and assault with a deadly weapon, stemming out of the May 13, 2003 stabbing attack on his former girlfriend Lagena Davis at the Crown Inn and Suites Motel (Crown Inn). Later that year, while serving a prison term for those earlier offenses, Belmont received a letter from Debra "Chicki" Steinman, another ex-girlfriend, who had lost touch with Belmont for several years, had recently discovered he was incarcerated and had contacted him with the hope of reestablishing their romantic relationship.
Shortly thereafter, the two began corresponding, with Belmont advising Steinman about the earlier incident at the Crown Inn and telling her she "might help him file a legal document that might get him out of prison." He explained that such would require her to provide "a letter or some sort of a sworn document" for him. Although Steinman was nervous and had "reservations" about the scheme, she agreed to go along with it because Belmont assured her they would live together and maybe get married once he was released from prison.
Letters admitted into evidence revealed that over the course of the next several months, the two regularly corresponded, with Belmont giving Steinman information and instructions on how she was to proceed in providing him a declaration, which would establish he had been wrongly convicted for the May 2003 crimes at the Crown Inn. Belmont even sent Steinman sketches of the crime scene as well as copies of the transcripts from his trial and express instructions about how she was to respond to certain questions that the attorneys would ask her, warning her not to talk to anyone from the District Attorneys (DAs) office. Belmont instructed Steinman to address her letters to him as "legal mail" so that the prison authorities would not read them.
On June 27, 2004, Steinman received a letter from Belmont that contained her proposed "statement," which she then retyped, signed, had notarized and mailed back to him. In the statement, Steinman declared under penalty of perjury that she had been at the Crown Inn on May 13, 2003, and had seen Davis without injuries while Belmont was outside of the motel room and that she later saw Davis come out of the room upset and injured.
On July 12, 2004, Belmont filed a petition for a writ of habeas corpus in this court, challenging his earlier convictions based on new evidence, claiming Steinmans attached declaration was "important because [she] saw [Davis] after [Belmont] left the room and [Davis] wasnt injured. [Steinman] also witnessed [Davis] leaving the room injured, but [Belmont] had never re-entered the room." The petition was denied without prejudice as premature due to Belmonts pending appeal in his earlier case.
On November 3, 2004, Belmont filed a second habeas petition in this court with Steinmans declaration attached, challenging his convictions in the earlier case on grounds of ineffective assistance of counsel for not locating Steinman as a witness who would have proven his innocence. Belmonts second petition was denied because he had not first sought relief in the superior court.
On January 25, 2005, Belmont filed a third habeas petition in the El Cajon branch of the San Diego Superior Court, again challenging his convictions in the underlying attempted voluntary manslaughter and assault case on grounds his counsel was ineffective in failing to locate Steinman. After the superior court issued an order to show cause on the third petition, the DAs office began an investigation in which it discovered the letters Steinman had sent Belmont in prison and his letters that had been sent to her in a search of her apartment. During the investigation, Steinman admitted to a DA investigator that she had lied in her notarized statement she had put together based on information received from Belmont, which had then been used as a supporting "exhibit" to the habeas corpus petitions he filed under penalty of perjury.
Although Belmont eventually withdrew his third petition from superior court on September 30, 2005, the DAs office filed the conspiracy to commit perjury and various perjury charges in this case against both Belmont and Steinman. Sometime before trial, Steinman had pled guilty to one count of perjury in exchange for testifying against Belmont in this case. Steinman conceded at trial that her declaration was not true and that she had never been to the Crown Inn.
DISCUSSION
I
MARSDEN AND SELF-REPRESENTATION DENIALS
On May 23, 2007, the day set for trial, the court clerk advised the trial judge that Belmont wanted a "Marsden motion." After noting that at the last court hearing on May 4, 2007, Belmont had informed the court that he had retained attorney Michael Pedretti to represent him, and Pedretti had not since made any appearances in this case, the trial judge inquired as to whether such was a "dead issue." Appointed counsel replied that it appeared so and the prosecutor represented that he had spoken to Pedretti that morning who said he "was not" and "will not" be retained for Belmonts case.
The court then inquired directly of Belmont whether he wished to have a Marsden hearing or motion, which "is one in which you seek to have your appointed counsel relieved and new counsel appointed. Is that, in fact, your request, sir?" When Belmont responded, "Yes, sir," the court had the prosecutor and his staff leave the courtroom and asked Belmont what he would like the court to consider in ruling on his request. After apologizing for any inconvenience caused the court, Belmont replied:
"Im afraid for my life right now. As you said, on May 4th, you presented that deal . . . on nine years strike. I didnt take that deal, and the courts after that said that if I dont take the deal, I would be exposed to 14 years, eight months. At that point, I was just totally afraid for my life. [¶] And I want . . . to go pro per and fight for my life. Total breakdown in communication with my attorney. I dont have any faith and I dont trust whats going on. I dont have any paperwork. Im totally locked down in George Bailey for weeks on end. My family and the congregation is totally afraid, and everyones trying to get together and try to help and we cant get any help whatsoever. And Im just stuck and were constantly locked down there. I dont know — I dont have any . . . paperwork of anything. Its just — this is my life."
In response to the courts questions of why Belmont was afraid for his life and whether somebody had threatened him, Belmont explained that he was 50 years old and the court had told him that 14 years, eight months "is what would happen to me if I lose in trial. Theres issues I have. . . . Ill be 65 years old when I come out of prison. . . . Thats my whole life. . . . [A]ll Im trying to do is . . . fight for my life." Belmont said no one had threatened his physical safety and he "was not afraid of all the potential consequences of the case, but its issues of this case that [the prosecutor] brought up thats not true and its just totally prejudiced and biased towards me."
The court then focused on the communication issue, asking Belmont what he meant by saying there was a breakdown in communication with his attorney. Belmont responded:
"We just . . . dont communicate and I spend more time fighting her than I do the attorney. I was supposed . . . to get my paperwork. I havent got the paperwork. I was supposed to get a handwriting expert. I didnt get a handwriting expert. An investigator came in and talked to me and told me he was going to give me a handwriting analysis, and all I get is the District Attorney jumping on and getting analysis, saying thats my signature and this, this. And its not true. Its not. And Ive been forthright and Ive been honest with the courts. Ive been honest with everybody, and its — so I have to present my own evidence."
The court then invited Belmonts appointed counsel to comment on the matter. Counsel stated that "the only thing [she] would say is that Mr. Belmont is right to the extent that there has been a complete breakdown of communication between the two of us."
After clarifying that it had not told Belmont he would get 14 years, eight months if he went to trial, the court reviewed the history of this case from the time it was filed in August of 2006, up to the present date, noting that Belmont had sought numerous continuances along the way, and had come up with various reasons, including alleged family problems and losses of transcripts and documents, for continuances, which read together with his underlying actions in filing the three habeas petitions, "bespeak manipulation of the system by false statements and a willingness to create out of whole cloth a story that could be used to exonerate [himself]." The court noted that Belmont had been granted several continuances, including one to continue trial pending the outcome of a federal habeas proceeding he had filed regarding his prior strike convictions, before the case had been assigned to its court.
The court further indicated that it had reviewed the preliminary hearing transcript and was aware the judge at that hearing had not been impressed with Belmonts explanations and justifications for seeking an additional continuance of that hearing. At that time, Belmont had represented that he had not been able to locate his family, the prison had lost his paperwork and due to riots at the prison he had not been able to make telephone calls or have any contact with his attorney or others.
Since then, the trial on this matter had been continued two more times and Belmont had written the court a two-page letter before the last status conference on May 4, 2007, essentially conceding he had conspired with Steinman to "write a statement" to file with his writ petitions, but had tried to cooperate with the system to save taxpayers money "to no avail." The trial courts reading of Belmonts letter was that the only reason it "was to no avail [was] because it wasnt on Mr. Belmonts terms." The court further noted that, as discussed earlier, Belmont had represented at the May 4 status conference that he had retained Pedretti, but he had not.
The trial judge denied the Marsden motion, stating:
"It is apparent to me that there has been no inadequate representation by [appointed counsel] in this case. Instead, it is apparent, and I find as a matter of fact, that Mr. Belmont simply will not participate in the proceedings or with his counsel until he gets an offer that is to his liking. I find that the conflict to which Mr. Belmont and [appointed counsel] refer is of Mr. Belmonts own creation. It is not, in fact, borne of anything other than the fact that he does not like the message that [appointed counsel] is giving him. [¶] I see this and find . . . this to be the next in a continued series of efforts by Mr. Belmont to delay and postpone this case until he gets an offer that is to his liking. . . . . [¶]. . . [¶] All this is to say that what I find to be occurring is Mr. Belmont attempting to delay these proceedings by creating this conflict. It is borne of his refusal and unwillingness rather than inability to cooperate with his counsel."
When Belmont then immediately asked, "[m]ay I call for a Lopez waiver, sir?," the trial judge responded:
People v. Lopez (1977) 71 Cal.App.3d 568 (Lopez).
"No. Your Lopez request, the Court likewise finds, is made on a day of trial, in an untimely fashion as part of your continued attempt to delay this matter. Mr. Belmont, I dont believe that you are using these procedures in good faith. I find as a matter of fact that you are attempting to invoke these so that you may delay this case yet again. Your request for self-representation is denied."
Back on the record, the court ordered the transcript of the in camera Marsden proceedings sealed, noting that it had denied Belmonts Marsden request as well as his alternative motion to represent himself "as being untimely and made for the purposes of delay."
On appeal, Belmont contends the trial court violated his Sixth Amendment rights to counsel by erroneously denying both his Marsden motion and his motion to represent himself. We separately address and reject these assertions.
A. The Marsden Denial
Belmont specifically claims the trial courts failure to investigate his and his appointed trial counsels assertions that there was a complete breakdown in communication between them constituted constitutional error. We disagree.
When a defendant seeks to discharge his appointed counsel and have another attorney appointed because of inadequate representation, the trial court must permit the defendant to explain the basis of his contention and relate specific instances of the attorneys inadequate performance. (Marsden, supra, 2 Cal.3d at p. 124.) A trial court hearing such Marsden motion has broad discretion in determining whether the defendant has shown his appointed attorney is not providing adequate representation or whether there is such an irreconcilable conflict between the two that ineffective representation is likely to result. (People v. Smith (1993) 6 Cal.4th 684, 696.) In such regard, a defendant "may not force the substitution of counsel by his own conduct that manufactures a conflict." (Ibid.) Nor does an "irreconcilable conflict" arise merely because a defendant and his attorney disagree on tactical decisions or because a defendant professes a lack of trust and inability to get along with his attorney. (People v. Memro (1995) 11 Cal.4th 786, 857-858 (Memro).) Moreover, a "trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness." (People v. Smith (2003) 30 Cal.4th 581, 606.)
Denial of a Marsden motion "is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would `substantially impair the defendants right to assistance of counsel." (People v. Webster (1991) 54 Cal.3d 411, 435; accord, People v. Hart (1999) 20 Cal.4th 546, 603 (Hart).) We will not reverse a trial courts denial of a Marsden motion absent an abuse of discretion. (People v. Moore (1988) 47 Cal.3d 63, 76 (Moore).)
Applying the above standards to this case, we can find no abuse of discretion in the trial courts denial of Belmonts Marsden motion. The record reflects the court fully afforded Belmont an opportunity to air any grievances regarding his appointed trial counsel and asked defense counsel to respond. Although the courts inquiry to counsel regarding the breakdown of communications with Belmont was limited, more extensive inquiry was not necessary in light of this record. The court had reviewed the history of this case, had witnessed the earlier status and plea agreement discussions, and had just heard Belmonts general complaints of distrust regarding counsel and these proceedings against him. Because Belmont did not articulate any specific instances of his appointed counsels inadequacy or offer any basis for his allegations, we presume the court had no need for defense counsel to further respond to Belmonts claim that there had been a breakdown in communication. (See People v. Williams (1970) 2 Cal.3d 894, 905.)
Belmont did not show that he had tried to work out any breakdown in communication or disagreements with counsel, or that he had given counsel any opportunity to gain his trust by trying to cooperate or get along with counsel. (See People v. Smith, supra, 30 Cal.4th at p. 606.) "I[f] a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law." (People v. Crandell (1988) 46 Cal.3d 833, 860; overruled on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Thus Belmonts generalized claim of distrust of his attorney and representations that there was a breakdown of communication, without more, was not sufficient to show an "irreconcilable conflict" had arisen such that counsel could not provide him effective representation for trial. (Memro, supra, 11 Cal.4th at pp. 857-858.)
In fact, the trial court specifically found there was no showing of inadequate representation or that Belmont and his counsel had such an irreconcilable conflict that counsel would not be able to provide effective representation at trial. (See People v. Smith, supra, 6 Cal.4th at p. 696.) Nothing in the record reveals otherwise. We defer to such findings. (See People v. Jones (2003) 29 Cal.4th 1229, 1245.) Belmont has simply not shown that the failure to replace his appointed counsel would "substantially impair" his constitutional right to assistance of counsel. (Hart, supra, 20 Cal.4th at p. 603.) The trial court did not abuse its discretion in denying Belmonts Marsden motion.
B. Self-Representation Denial
Belmont also claims the trial court erred in denying his motion to proceed in propria persona, specifically arguing it incorrectly assumed that his request would require a continuance instead of permitting him to immediately try his case without delay. We find no abuse of discretion on this record.
In Faretta v. California (1975) 422 U.S. 806, 834-835 (Faretta ), the United States Supreme Court declared that the Sixth Amendment right to the assistance of counsel included the separate right of an accused to choose self-representation. The court noted in Faretta that the defendants request had been made well in advance of trial. It observed that trial courts are not required to honor requests that are untimely or that are made solely to manipulate. It held only that where an unequivocal and timely request is made, it must be honored if the defendant makes an intelligent waiver of his or her right to an attorney. (Id. at pp. 835-836.)
Our Supreme Court has interpreted Faretta, supra, 422 U.S. 806, to permit trial courts in their sound discretion to grant or deny late requests for self-representation. (People v. Mayfield (1997) 14 Cal.4th 668, 809.) In exercising its discretion, the court should consider such factors, originally set out in People v. Windham (1977) 19 Cal.3d 121 (Windham ), as the " " `quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. "[Citations.] [Citation.]" (People v. Clark (1992) 3 Cal.4th 41, 98-101 (Clark).)
Moreover, as to whether a request for self-representation is unequivocal, in People v. Marshall (1997) 15 Cal.4th 1, our high court explained that circumstances apart from the defendants own words may be indicative of an equivocal, and therefore invalid, Faretta request: "The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendants conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendants conduct or words reflecting ambivalence about self-representation may support the courts decision to deny the defendants motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied." (Id. at p. 23; see also People v. Barnett (1998) 17 Cal.4th 1044, 1087.)
Here, Belmonts day-of-trial request to represent himself, combined with his statements about not trusting what was going on with the negotiations in his case because of his strike situation, and his claims he did not have the "paperwork of anything," did not have a handwriting expert of his own, and needed to present his own evidence, plainly indicated he was not prepared to proceed as his own counsel on that day. Under the circumstances, his request was not made "within a reasonable time prior to the commencement of trial" and was therefore committed to the sound discretion of the trial court. (See Clark, supra, 3 Cal.4th at pp. 98-100; Moore, supra, 47 Cal.3d at pp. 79-81.)
Although the court did not specifically recite in its decision rejecting his request that it had considered the so-called Windham factors (Clark, supra, 3 Cal.4th at p. 101), a review of those factors in light of this record convinces us that the court did not abuse its discretion in denying the motion (id. at p. 100). In the context of these proceedings, Belmonts motion was equivocal. His request to "go pro per" was mentioned in conjunction with his Marsden motion and not pursued until the court denied that motion and jury selection was about to begin. Obviously, based on Belmonts comments to the court throughout the in camera hearing, the trial would have had to be continued to allow Belmont to prepare. Unlike the situation in People v. Tyner (1977) 76 Cal.App.3d 352, on which Belmont relies, Belmont did not represent that he was ready to proceed with the trial as the defendant in Tyner had represented. (Id. at pp. 354-355.) Belmonts comments regarding self-representation were precisely the sort of " `impulsive response " to the courts denial of his Marsden motion that has been rejected as an equivocal request to act as his own attorney. (See Barnett, supra, 17 Cal.4th at pp. 1087-1088; People v. Hines (1997) 15 Cal.4th 997, 1028.)
In sum, the trial court was well within its discretionary authority to conclude the request was untimely, made for purposes of delay and not really a good faith request for self-representation. Belmont presented the trial court with the kind of late, potentially manipulative Faretta motion. which both the United States and California Supreme Courts have indicated judges have the discretion to deny. Here, the trial court soundly exercised its discretion. There was no error in this regard.
III
SECTION 654At sentencing, the prosecutor conceded with regard to the issue of section 654s bar to multiple punishment, that it applied to the conspiracy counts (counts 1, 5 & 6; counts 5 & 6 referring to overt acts in the conspiracy) in relation to the three perjury counts (counts 2, 3 & 4) concerning the three habeas petitions, but argued that those counts should be separately punished because the singular objective to defraud the courts with the intent of "getting out of prison" was too general. Belmont argued the opposite; i.e., that two of those three counts should be stayed under section 654 because he only had one intent and the three petitions for habeas corpus were part of "one indivisible transaction," to obtain that singular criminal objective.
The court agreed with the prosecutor, finding that each count "involved the preparation of a separate document, . . . signed [and filed] on a different date . . . ." The court also noted that two of the documents were presented to this Court of Appeal and one to the superior court, and that count 2 dealt with an evidentiary hearing on new evidence, while counts 3 and 4 related to allegations of ineffective assistance of counsel based on counsel knowing about the purported new evidence and doing nothing about it. Because of the separate petitions, each filed on separate dates and involving different courts and legal theories, the trial judge stated, "I find that those are, in fact, separate offenses, each of which may be punished separately and, in fact, in view of the strike, must be." Thereafter, the court sentenced Belmont to consecutive terms on counts 2, 3 and 4.
On appeal, Belmont contends the trial court violated section 654 by not staying his sentence on counts 3 and 4 because they were based upon the same indivisible course of conduct and single criminal objective as count 2. In support, Belmont points to the similar false statements made in each of his three habeas petitions that were filed with the respective courts and to the fact that the trial court instructed the jury it could also find him guilty on an aiding and abetting theory based on his directing Steinman to prepare a false declaration that was attached to each petition. Alternatively, he argues that at a minimum the punishment for either count 3 or count 4 should be stayed under section 654 because they both were based on false statements in habeas petitions that alleged the ineffective assistance of his trial counsel. We find no section 654 violation on this record.
It is well established that section 654 "precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.) In determining whether a course of conduct is indivisible for section 654 purposes, a court generally looks at the defendants intent and objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1208 (Latimer).) " `If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]" (Ibid.) Exceptions to this rule have arisen in numerous instances, including where there were multiple victims (People v. Perez (1979) 23 Cal.3d 545, 551-552, fn. 4 (Perez )), where there were similar, but consecutive, objections (id. at pp. 551-554), where there were separate, although simultaneous, objectives (e.g., People v. Coleman (1989) 48 Cal.3d 112, 162 [assault of robbery victim had separate intent and objective than the robbery]), where there were multiple objectives which were independent of and not merely incidental to each other even though they shared common acts or were parts of an otherwise indivisible course of conduct (e.g., People v. Centers (1999) 73 Cal.App.4th 84, 98), and where a course of conduct was divisible in time even though directed to one objective. (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11 (Beamon).)
Belmonts case appears to fall under these last two exceptions. Although it can be said that Belmonts intent and objective in each of the three counts of perjury by document was the same, i.e., to obtain his release from prison, such general overall intent is too broad to tie the three separate acts into one continuous transaction. (See People v. Mitchell (2008) 164 Cal.App.4th 442, 456-457; People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-1257 (Kwok); People v. Neder (1971) 16 Cal.App.3d 846, 853-855.) Here Belmont prepared and signed under penalty of perjury three separate petitions for a writ of habeas corpus, which he filed at three different times, months apart, in two different courts. That he attached to each petition the same declaration, which he had had Steinman prepare, and the jury was instructed that they could base his convictions on a theory of aiding and abetting her in each perjury by document does not change the crucial fact that he had the opportunity to reflect after the first filing, and nevertheless refiled a new document again with a new signature and Steinmans declaration, and then again refiled a third separate document. (See Kwok, supra, 63 Cal.App.4th at pp. 1254-1255.)
Analogous to the situations in People v. Williams (1988) 201 Cal.App.3d 439, 440-442 and In re William S. (1989) 208 Cal.App.3d 313, 315-317, where the respective defendant committed offenses several hours or months apart, with the first offense committed in order to facilitate the commission of the later offenses, separate sentences are permissible here, as in those cases, because the crimes were divisible in time and the defendant had the opportunity to reflect before committing the subsequent crimes. (Beamon, supra, 8 Cal.3d at p. 639, fn. 11; Kwok, supra, 63 Cal.App.4th at pp. 1253-1255.) Belmonts separate consecutive terms on his counts 2, 3 and 4 perjury convictions were thus properly imposed, consistent with section 654s purpose of ensuring that his punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act. (Latimer, supra, 5 Cal.4th at p. 1211; Perez, supra, 23 Cal.3d at pp. 551-552, fn. 4.) No section 654 violation is shown.
DISPOSITION
The judgment is modified to strike rather than stay the two prison prior enhancements. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting such modification and to forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.