Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. BA304359 Frederick N. Wapner, Judge
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Jerron Callahan appeals from the judgment entered following his conviction by a jury of pimping a minor (J. W.) over the age of 16 years (Pen. Code, § 266h, subd. (b)(2)), pandering by procuring a minor (J. W.) over the age of 16 years (Id., § 266i, subd. (b)(1)), pimping an adult prostitute (A. G.) (§ 266h, subd. (a)), and pandering by procuring an adult prostitute (A. G.). (§ 266i, subd. (a)(1).) The trial court found true allegations of one prior prison term (§ 667.5, subd. (b)) and one prior juvenile adjudication for a serious or violent felony (robbery) within the meaning of California's "Three Strikes" law. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) Appellant was sentenced to prison for 15 years, 8 months.
All statutory references are to the Penal Code unless otherwise stated.
Appellant's contentions are as follows: (1) the trial court erroneously admitted the expert testimony of Officer Shaun King; (2) the court erroneously admitted evidence that J. W. was shot after appellant had threatened her; (3) the court failed to give an appropriate limiting instruction on the shooting; (4) respondent was erroneously permitted to impeach a defense witness with prior misdemeanor convictions; (5) the prosecutor committed prejudicial misconduct; (6) the jury was erroneously instructed pursuant to CALCRIM Nos. 1151, 300, and 318; (7) appellant's constitutional rights were violated because his juvenile adjudication for robbery was treated as a strike; (8) his constitutional rights were also violated because the court imposed the upper term of six years for the conviction of pimping a minor over the age of 16 years; and (9) the court erroneously calculated his presentence custody credit. By supplemental brief, appellant contends that the counts concerning A. G. must be reversed on authority of People v. Wagner (2009) 170 Cal.App.4th 499. The ninth contention is the only one that has merit. We modify the judgment to show the correct number of days of presentence custody credit and affirm the judgment as modified.
Facts
Prosecution Evidence
J. W., who is white, met appellant, who is African-American, in Las Vegas when she was 17 years old. Appellant, approached her while she was sitting with a friend inside Caesar's Palace. Later that same day, appellant called J. W. on her cellular telephone.
About a week after meeting appellant, J. W. was "kicked out" of the house in Las Vegas where she had been living with a friend. Because J. W. had a troubled relationship with her parents, she had left their home when she was 16 years old.
Appellant offered to let her stay with him at his apartment in Inglewood, California. In April 2006 J. W. traveled by bus with appellant from Las Vegas to California, moved into his apartment, and started working as a prostitute for him. She was still 17 years old. She had never previously committed an act of prostitution. When she left Las Vegas, she did not know that appellant was a pimp. J. W. prostituted herself because she was "[j]ust young," had "nowhere to go," and needed "shelter at the time."
Appellant took all of J. W.'s prostitution earnings. In return, he provided her with clothing, food, and a place to stay. He instructed her "regarding the rules of prostitution." If she broke the rules, she "would get hit and beat up." On various occasions, appellant hit J. W. with a metal hanger, made her take an ice bath for two and a half hours, punched her in the ribs, and hit her with a belt. Appellant's moniker, "Payroll," was tattooed on her neck. "Prostitutes are often... branded with a pimp's... moniker, to identify them as his property."
On June 12, 2006, the police arrested J. W. for prostitution. She told them about her relationship with appellant. Based on this information, the police arrested appellant on June 13, 2006. That same day, he was released on bail.
After her arrest, J. W. moved to Long Beach. On June 21, 2006, appellant telephoned her. He said, "I know where you're at and I'll take care of you myself, bitch." Appellant threatened that J. W. would be a "dead bitch" if she did not leave California within a week. He further threatened, "Don't show up at my court date because I will get out. If I go to jail, people from this neighborhood will find you and take care of you."
About five hours after appellant's threats, J. W. was shot outside her apartment in Long Beach. She suffered eight bullet wounds to her stomach, back, and arms. She does not know who shot her.
A. G. worked as a prostitute for another pimp, "Dollar Bill." After Dollar Bill was arrested, she continued to engage in prostitution without a pimp. She then "went home," "left prostitution," and started a "boyfriend/girlfriend type" relationship with a man named Terry, who was not a pimp. In January 2006 A. G. left Terry to work as a prostitute for appellant. She lived and worked together with J. W. At appellant's suggestion, A. G. had "Payroll" tattooed on her arms.
Defense Evidence
Appellant testified as follows:
He has never been involved in pimping or pandering. A. G. was a friend at first, but he later had a sexual relationship with her. He did not meet J. W. in Las Vegas. One day when he returned to his apartment, J. W. was "just there" visiting Crystal M., who was living at the apartment. At first, J. W. was an "acquaintance" whom he saw about once a week. He later allowed her to stay at his apartment so that she could "heal up." On June 12, 2006, he told J. W. that she could not stay there any longer, and she became angry. When J. W. was arrested for prostitution, she told the police that appellant was her pimp because she was mad at him for kicking her out of his apartment. Appellant did not make any threats against J. W.
I
Admission of Officer King's Expert Testimony
Facts
Officer Shaun King, an expert on prostitution, testified as follows:
White women give the pimp "a little bit higher status and they're worth... more" because they bring in more money than women with different racial backgrounds. Hispanic women are less valuable than whites but more valuable than African-American women. "[T]he lighter skin girls fetch more money for the pimps."
Most prostitutes come from "broken backgrounds." They are "desperate to fill that void, to have someone... actually be there for them, especially a male figure. [¶]... [S]ometimes [pimps] start out acting to be a boyfriend and these girls are so... deeply flattered to have what they consider to be male attention that they overlook the... real reasoning behind that attention that they receive." J. W. "fit the mold" of the "type of woman that pimps prey upon."
Pimps control their prostitutes "through fear or through manipulations." The pimp may administer "beatings and various other tortures," such as "ice baths." A prostitute who talked to the police would be beaten by her pimp.
Discussion
Appellant contends that "the trial court erred by allowing the prosecutor to elicit from Officer King irrelevant testimony regarding the reason women become prostitutes and the relative value of prostitutes based on ethnicity and skin color." (Capitalization omitted.) Appellant argues that Officer King's expert testimony "was a sandcastle, an edifice irrelevant to the issues at hand: there was plenty of lay evidence attesting to the pimp/prostitute relationship between appellant and the charged victims. That relationship, like any other relationship, is not something outside a layperson's ability to comprehend."
"A trial court's determination to admit expert evidence will not be disturbed on appeal absent a showing that the court abused its discretion in a manner that resulted in a miscarriage of justice. [Citations.]" (People v. Robinson (2005) 37 Cal.4th 592, 630.) The trial court did not abuse its discretion. It could have reasonably concluded that Officer King's testimony was relevant and "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of Fact...." (Evid. Code, § 801, subd. (a).) "By and large, the relationship between prostitutes and pimps is not the subject of common knowledge. [Citations.] A trier of fact who is in the dark about that relationship may be unprepared to assess the veracity of an alleged pimp, prostitute, or other witness testifying about prostitution." (United States v. Taylor (9th Cir. 2001) 239 F.3d 994, 998; see also United States v. Anderson (D.C. Cir. 1988) 851 F.2d 384, 393.)
Officer King's testimony about prostitutes coming from "broken backgrounds" was relevant to show that J. W. was particularly vulnerable to exploitation by a pimp and that she was among the group of women that "pimps prey upon." J. W.'s troubled relationship with her parents had resulted in her leaving home when she was 16 years old. Shortly after meeting appellant in Las Vegas, she was kicked out of the house where she had been staying with a friend.
Furthermore, Officer King's testimony that pimps control their prostitutes "through fear or through manipulations" and administer "beatings and various other tortures," such as "ice baths," was relevant to corroborate J. W.'s testimony that appellant had beaten her and had made her take an ice bath for two and a half hours. This testimony was also relevant to explain why, despite her ill-treatment, J. W. continued to work as a prostitute for appellant until her arrest.
Finally, Officer King's testimony that white women are worth more to pimps than women of other races was relevant to help the jury understand why appellant, an African-American, had focused on J. W., a white woman, rather than a person of his own race. In Las Vegas appellant approached J. W., then a complete stranger, and later called her on her cellular telephone.
Appellant contends that Officer King's testimony closely resembled the improper profile evidence condemned in People v. Robbie (2001) 92 Cal.App.4th 1075, 1082-1083. The Robbie court observed that "profile evidence" has been described "as 'a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity.' [Citation.]" (Id., at p. 1084.) "Profile evidence is unfairly relied upon to affirmatively prove a defendant's guilt based on his match with the profile. The jury is improperly invited to conclude that, because the defendant manifested some characteristics, he committed a crime." (Id., at pp. 1086-1087.)
Officer King's testimony was not improper profile evidence. "It was not offered to establish a stereotype, then condemn the defendant for fitting it." (People v. Robbie, supra, 92 Cal.App.4th at p. 1087.) Moreover, as our Supreme Court noted in People v. Smith (2005) 35 Cal.4th 334, 357, profile "evidence is inadmissible only if it is either irrelevant, lacks a foundation, or is more prejudicial than probative. [Citation.]" None of these criteria applies to Officer King's testimony. "Profile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt. The evidence here, however, does not have this problem." (Id., at p. 358.)
II
Evidence of the Shooting of J. W.
Appellant contends that the trial court erroneously admitted evidence that J. W. was shot after he had threatened her. Appellant argues that the shooting was irrelevant because there was no evidence that he had been involved in it. Even if evidence of the shooting were relevant, appellant maintains that its admission constituted an abuse of the trial court's discretion because "the prejudice to appellant far outweighed the probative value of the uncharged bad act evidence."
The prosecutor asserted that evidence of the shooting "goes to [J. W.'s] state of mind." The trial court determined that "her being shot at is relevant to a jury's evaluation of her state of mind in terms of her testifying." The court refused to exclude the evidence under Evidence Code section 352 because its "probative value substantially outweighs the risk of any undue prejudice."
The trial court did not abuse its discretion. J. W. testified that she was scared of appellant because "he had told me if I showed up at his court date that... it would be the end of my life and I'm here today." The shooting was admissible to show that J. W. had good reason to fear that appellant's threat would be carried out.
"Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible." (People v. Burgener (2003) 29 Cal.4th 833, 869.) "A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony.... [I]t matters not the source of the threat.... [¶] Regardless of its source, the jury would be entitled to evaluate the witness' testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness' fear. A witness who expresses fear of testifying because he is afraid of being shunned by a rich uncle who disapproves of lawyers would have to be evaluated quite differently than one whose fear of testifying is based upon bullets having been fired into her house the night before the trial. The trial court acted well within its discretion in insuring the jury would have such evidence and would properly evaluate it." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369.)
III
Limiting Instruction on the Shooting
In overruling an objection by appellant to J. W.'s testimony about the shooting, the trial court instructed the jury that they could consider this evidence "only as it affects her state of mind and any bias she might have in terms of her testimony." Appellant contends that the trial court erroneously failed to inform the jury that this limiting instruction applied to all of the evidence concerning the shooting. Appellant also faults the court for including an unmodified version of the general limiting instruction, CALCRIM No. 303, in its final jury instructions. CALCRIM No. 303 provides: "During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." Appellant argues that the trial court had a duty to modify CALCRIM No. 303 to "remind the jury which evidence could be considered for a limited purpose."
Appellant did not object to the form of the limiting instructions. If he believed that the instructions were inadequate, he should have made his views known to the trial court. By failing to object, appellant waived the issue. (See People v. Holloway (2004) 33 Cal.4th 96, 132; People v. Burnett (2003) 110 Cal.App.4th 868, 875.)
IV
Impeachment with Misdemeanor Convictions
Appellant contends that the trial court erroneously permitted the impeachment of defense witness Anita Smith with prior misdemeanor convictions for forgery and making an insufficient funds check. "[A] person can be impeached in a criminal case by evidence of prior misdemeanor conduct that involves moral turpitude.... However, evidence of a misdemeanor conviction remains 'inadmissible hearsay when offered to impeach a witness's credibility.' [Citation.]" (People v. Lopez (2005) 129 Cal.App.4th 1508, 1522, fn. omitted; see also People v. Chatman (2006) 38 Cal.4th 344, 373 ["Misdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court's exercise of discretion"]; People v. Wheeler (1992) 4 Cal.4th 284, 295, 300) If a witness denies prior misdemeanor conduct involving moral turpitude, "Evidence Code section 452.5 creates an exception to [the] hearsay rule and allows [the] conduct to be proved by official records of misdemeanor convictions. [Citation.]" (People v. Lopez, supra, 129 Cal.App.4th at p. 1522, fn. 8; see also People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1462.)
The trial court permitted the prosecutor to question Smith "about the conduct relating to the forgery and the conduct relating to the NSF check." If Smith denied the conduct, the prosecutor would be allowed "to ask her if she was, in fact, convicted of those two crimes." If she denied the convictions, the prosecutor would be allowed to prove the underlying conduct through a "rap sheet." The prosecutor said she had a "certified rap" sheet showing both misdemeanor convictions.
Smith denied the conduct underlying the forgery, so the prosecutor asked her if she had been convicted of that offense. Smith replied that "[i]t was reduced to petty theft...." Smith also denied the conduct underlying the conviction for making an insufficient funds check. The prosecutor asked her if she had been convicted of that offense, and Smith answered, "Yes."
The trial court erred in allowing the prosecutor to ask Smith if she had been convicted of the offenses. Smith's misdemeanor conduct, not her misdemeanor convictions, was admissible for impeachment purposes. (People v. Lopez, supra, 129 Cal.App.4th at p. 1522; People v. Chatman, supra, 38 Cal.4th at p. 373.) But the error was harmless. Since Smith denied the underlying conduct, official records of the convictions would have been admissible to prove that conduct. (People v. Lopez, supra, 129 Cal.App.4th at p. 1522, fn. 8.) These records would have informed the jury of the convictions.
Appellant contends that the trial court erroneously admitted conduct underlying the insufficient funds conviction because this "was not necessarily a crime involving moral turpitude." We disagree. The applicable criminal statute, section 476a, subdivision (a), requires an "intent to defraud." "Intent to defraud is defined as an intent to deceive another person for the purpose of gaining some material advantage and to accomplish that purpose by a false statement or representation or by any other deceptive act. [Citations.] Therefore, as a matter of law [Smith's] conviction under Penal Code section 476a is a conviction of a crime involving moral turpitude." (Harrington v. Department of Real Estate (1989) 214 Cal.App.3d 394, 401.)
V
Prosecutorial Misconduct
During her direct examination of Officer King, the prosecutor asked whether appellant had "bailed out" following his arrest. Appellant objected, and a sidebar conference was conducted. The court ruled that it would admit evidence of appellant's release from custody following his arrest, but would exclude any reference to the posting of bail. Officer King apparently was not informed of this ruling. Upon resumption of direct examination, the prosecutor asked King if the date of June 22, 2006, was when he arrested appellant or when he received a telephone call informing him that J. W. had been shot. King replied that, after appellant had "bailed out," the police department "got a call regarding victim J. W. being shot."
Appellant claims that the prosecutor committed misconduct by deliberately "eliciting [the 'bailed out'] testimony in direct violation of the trial court's ruling." (Capitalization omitted.) Appellant, "however, failed to object or seek an admonition and therefore 'waived the right to complain of any misconduct on appeal.' [Citation.]" (People v. Turner (2004) 34 Cal.4th 406, 422.) In any event, the prosecutor did not commit misconduct because he did not deliberately elicit the "bailed out" testimony. That testimony was totally nonresponsive to the prosecutor's inquiry. We therefore reject appellant's contention that counsel was deficient in failing to object to the alleged misconduct.
VI
Jury Instructions
CALCRIM No. 1151
Appellant contends that the pandering instruction, CALCRIM No. 1151, "set forth an incomplete statement of the law by omitting... a critical element of the offense, i.e., that appellant acted with the specific intent to influence J. [W.] and A. [G.] to be prostitutes." We reject respondent's argument that appellant forfeited this contention by failing to object below. "Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review. [Citations.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
There is a conflict in the case law whether pandering is a specific intent crime. In People v. Mathis (1985) 173 Cal.App.3d 1251, 1256, the court concluded that pandering requires "a specific intent to influence a person to become a prostitute." But in People v. Montgomery (1941) 47 Cal.App.2d 1, 16, the court held that pandering does not require a specific intent: "Anyone who knowingly takes a part in the evil practice condemned is guilty of a violation of the law regardless of the state of his mind with relation to the act in question."
Montgomery was disapproved on other grounds in People v. Dillon (1983) 34 Cal.3d 441, 454, fn. 2, and Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11.
We need not resolve this conflict. If pandering is a specific intent crime, the trial court adequately instructed the jury on the intent element. As given by the court, CALCRIM No. 1151 required the People to prove that appellant "intended to influence [the victim] to be a prostitute." The trial court also gave CALCRIM No. 252, which provided in part as follows: "The following crimes require a specific intent or mental state: Pandering charged in Counts 4 and 5. To be guilty of (these) offenses, a person must not only intentionally commit the prohibited act but must do so with the specific intent or mental state. The act and the intent or mental state required are explained in the instructions for each crime."
CALCRIM No. 300
The trial court instructed the jury pursuant to CALCRIM No. 300, which provides: "Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant." Appellant argues that the jury could have misconstrued this instruction as meaning that "the defense is required to produce 'some' evidence." Appellant's "failure to request a clarification instruction forfeits [his] claim on appeal. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1202-1203.) In any event, appellant's argument was rejected in People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189-1190, and People v. Anderson (2007) 152 Cal.App.4th 919, 937-938. We find the reasoning of these cases to be persuasive.
CALCRIM No. 318
As given by the trial court, CALCRIM No. 318 provided: "You have heard evidence of statements that a witness made before the trial. If you decide that the witness made (those) statements, you may use (those) statements in two ways: [¶] 1. To evaluate whether the witness's testimony in court is believable; AND [¶] 2. As evidence that the information in (those) earlier statements is true." Appellant contends that "this instruction created an improper presumption that a witness's unsworn out-of-court statements are both true and deserving of greater belief than statements made in court under penalty of perjury."
"To the extent [appellant] argue[s] the trial court erred in failing to clarify the instruction, [he] forfeited [his] appellate challenge by failing to request such clarification. [Citations.]" (People v. Coffman (2004) 34 Cal.4th 1, 122.) In any event, appellant's challenge is meritless. Nothing in CALCRIM No. 318 suggests that the jury should presume that a witness's prior out-of-court statements are true. "CALCRIM No. 318 tells the jurors how they may use the prior statements '[i]f [they] decide that the witness made those statements....' " (People v. Golde (2008) 163 Cal.App.4th 101, 120.)
VII
Juvenile Adjudication
Appellant argues that, because he did not have the right to a jury trial in the proceedings that resulted in the juvenile adjudication for robbery, the trial court violated his constitutional rights by treating that adjudication as a strike. We rejected the same argument in People v. Pearson (2008) 165 Cal.App.4th 740, 748. Appellant has not persuaded us that Pearson was wrongly decided.
The question of whether a juvenile adjudication can constitutionally be treated as a strike is currently before the California Supreme Court in People v. Nguyen, review granted October 10, 2007, S154847, and People v. Tu, review granted December 12, 2007, S156995.
VIII
Imposition of Upper Term
For the offense of pimping a minor over the age of 16 years, the trial court imposed the upper term of six years and doubled it pursuant to the "Three Strikes" law. The court stated that the upper term was justified because of appellant's prior criminal record and parole violations and because he was on parole when the offense was committed. Appellant contends that the imposition of the upper term violated his constitutional rights pursuant to Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]; Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403], and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435].
On the other hand, appellant acknowledges that the trial court did not err pursuant to our Supreme Court's decisions in People v. Black (2007) 41 Cal.4th 799, and People v. Sandoval (2007) 41 Cal.4th 825. He also acknowledges that we are bound by Black and Sandoval. Nevertheless, appellant maintains that in these cases our Supreme Court"[i]ncorrectly [i]nterpreted" Cunningham, Blakely, and Apprendi. (Bold omitted.) Appellant states that he "is challenging [Black and Sandoval] in anticipation of exhausting his state remedies and preserving the issues for federal review...." Pursuant to the doctrine of stare decisis, we must reject appellant's challenge. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["The decisions of [the California Supreme Court] are binding upon and must be followed by all the state courts of California"].)
IX
Presentence Custody Credit
When appellant was sentenced on December 7, 2007, the trial court awarded him 794 days of presentence custody credit: 530 days actual plus 264 days of conduct credit. Appellant contends that he is entitled to 804 days of presentence custody credit: 536 days actual plus 268 days of conduct credit. Respondent, on the other hand, argues that appellant is entitled to 800 days of presentence custody credit: 534 days actual plus 266 days of conduct credit.
Appellant was originally arrested on June 13, 2006. That same day, he was released on bail. J. W. was shot on June 21, 2006, and appellant was rearrested after the shooting. The discrepancy between the parties' custody credit figures is based on a dispute as to the date of appellant's rearrest. Appellant contends that he was rearrested on June 21, 2006. Respondent contends that he was rearrested two days later on June 23, 2006.
Officer King was not certain when appellant was rearrested. He testified that it "would have been like the 22nd." Appellant, on the other hand, expressed no such uncertainty. He testified that he was rearrested "on June 23rd." In view of appellant's testimony, we assume that the date of his rearrest was June 23, 2006. Based on that date, he was entitled to credit for 534 days in actual custody.
"Presentence custody credit is calculated under section 4019 ' "by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]" [Citation.]' [Citation.]" (People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Appellant spent 534 days in actual custody. That number, divided by four and rounded down to the nearest whole number, equals 133; 133 multiplied by two equals 266 days of conduct credit. Thus, defendant should have received a total of 800 days of presentence custody credit (534 actual plus 266 days of conduct credit).
People v. Wagner
In People v. Wagner, supra, 170 Cal.App.4th 499, the court held that "pimping" cannot occur when the defendant induces, persuades, or encourages a person to be a prostitute if she is "currently" a prostitute. This case does not require reversal here because A.G. was not "currently" a prostitute. She had given up this life when approached by appellant to become a prostitute.
Disposition
The judgment is modified to show that appellant is entitled to 800 days of presentence custody credit, consisting of 534 days of actual custody credit and 266 days of conduct credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J., COFFEE, J.