Opinion
C079366
02-10-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES THOMAS COLEMAN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62130107)
A jury found defendant James Thomas Coleman guilty of numerous counts involving domestic violence, assault, false imprisonment, and misdemeanor child abuse. The trial court denied defendant's motion for new trial premised on ineffective assistance of counsel and sentenced him to eight years eight months in state prison.
On appeal, defendant challenges the trial court's denial of his motion for new trial, failure to stay the false imprisonment count pursuant to Penal Code section 654, and imposition of more than one on-bail enhancement. We agree only that the court improperly imposed (although stayed) more than one on-bail enhancement. We therefore modify the judgment and affirm as modified.
Unspecified statutory references are to the Penal Code.
FACTUAL BACKGROUND
The charges against defendant arose from crimes committed against several victims on several different dates.
Crimes Against Meagan B.
This victim is sometimes erroneously referred to by the parties and in the record as "Megan B."
Meagan B. was in a relationship with defendant from January 2009 through June 2013. She testified to various incidents of physical violence at the hands of defendant, including one incident in 2010 when she suffered a cut on her forehead, and another incident when she was driving and defendant, who was holding a knife, threatened to "fucking stab" her if she did not slow down and go the speed limit. She also testified that there were times she and defendant drank and used drugs together.
November 21, 2011--Counts One, Two, And Three
On November 21, 2011, Meagan B. attended a birthday party for her nephew at a bowling alley. After the party, she went home. Defendant was doing the dishes. He argued with Meagan B. over the fact that the dishes had to be done and it was not his job to do them. Defendant, who had been verbally abusive to her many times prior, began calling her derogatory names. Meagan B. received a telephone call and sat on the couch talking to her friend. Defendant became upset, grabbed her phone and threw it, and then pulled her down and straddled her. She twice tried to leave, but defendant grabbed her by the foot and dragged her back into the living room, where he punched her in the eye, kicked her in the back, choked her, and grabbed her arms with both hands, causing bruising. Defendant finally stopped and left after Meagan B. threatened to go outside and scream at the top of her lungs. She left the house and drove away. Initially, she could not use the damaged phone, but was eventually able to call her friend, Robynne G. She also reported the incident to police, and later went to the hospital and then an eye specialist due to the injury to her eye.
Meagan B. testified that she did not report prior incidents of abuse because she did not want to get defendant into trouble and she was afraid the abuse might get worse. When asked why she went back to defendant, Meagan B. said she loved him and his promises that it would never happen again gave her hope that the abuse would stop. She stated that she talked to defendant's mother about the abuse; both defendant and his mother encouraged her not to report it.
March 20, 2012--Count Four
At defendant's suggestion, he and Meagan B. got married in Nevada on March 18, 2012. Upon their return, defendant was arrested for the November 2011 incident. Meagan B. and defendant's mother bailed defendant out of jail that night. The next day, March 20, 2012, defendant punched her in the face. She sustained injuries to her eye and lip and was treated in the emergency room several days later.
Meagan B. testified that, every time there was a court date, defendant asked her to recant her statements to police. He offered possible excuses for her to give, and asked her to write a letter explaining how much better they were doing. She copied verbatim a letter written by a member of defendant's family and sent it to the prosecution.
May 2, 2012--Count Five
Meagan B. recalled an incident that occurred in May 2012, approximately three months after they were married. During an argument in front of their children, defendant punched her in the eye. The wedding ring on his finger injured her face and caused significant bleeding. She did not report the incident to police, but she called her mother the following morning. She went to the hospital due to the damage to her eye and blurry vision.
After the final May 2012 incident, Meagan B. continued to stay with defendant for approximately one year. Although there was no further physical abuse, the verbal abuse continued.
Meagan B. also testified regarding defendant's verbal and physical abuse of his children. On one occasion in 2011 or 2012, defendant punished his son, W. C., because he refused to put his seat belt on. Meagan B., who was driving, heard defendant forcefully buckle W. C., who screamed out in pain. On other occasions, defendant would punish the children by picking them up and throwing them into their rooms.
Robynne G.
Robynne G. is a close friend of Meagan B. On November 21, 2011, Robynne G. and Meagan B. were together at a birthday party. Meagan B. looked fine when Robynne G. left her after the party. Several hours later, Meagan B. called, crying and hysterical. She said, "oh, my god, oh, my god, it's really bad this time." When Meagan B. arrived at Robynne G.'s house, her face was "really bloody and her bottom lip was really swollen." She had marks on her neck, a big bump on her head, and blood in her hair. She also had large red marks on her back. According to Robynne G., this was not the first time Meagan B. showed up at her house looking bruised and injured. Robynne G. helped clean up Meagan B. and calmed her.
Monika B.
Monika B. is Meagan B.'s mother. Monika B. recalled incidents when, as a result of defendant's physical abuse, Meagan B. sustained injuries including a black eye, bruises on her neck, and a large bruise on her arm. On one occasion, Monika B. took her daughter to the hospital to see an eye specialist due to an injury to her eye inflicted by defendant.
One day, Monika B. attended a birthday party for Meagan B.'s nephew. Meagan B., who was also at the party, did not appear to have any injuries. When Monika B. saw her the next day, Meagan B. had bruises on her face, neck, and arm. On another occasion, Monika B. saw that Meagan B. had a black eye and a gash on her head.
Crimes Against Ashley M., D. M., And E. C.
Ashley M.
Ashley M. dated defendant from June 29, 2013, through April 29, 2014, during which time they had a child together. Prior to their relationship, Ashley M. lived with Crystal M., who told her Crystal M. and defendant been in a bad relationship and defendant was abusive. Nonetheless, Ashley M. chose to have a relationship with defendant because he was "charming." In the beginning, their relationship was "really good." She asked defendant about his relationship with Crystal M. He "made it seem like it was all [Crystal M.]" and "never had anything nice to say about [her]."
Defendant was verbally abusive towards Ashley M. during their relationship. He called her names like "fat cunt" every day, and said her family was "a cum dumpster" and "a joke." He also said he was embarrassed by her because of her family. He eventually made Ashley M. feel like she was worthless.
October 28, 2013--Count Six
In October 2013, defendant became physically abusive toward Ashley M.'s then two-year-old child, D. M. On one occasion, defendant and Ashley M. were in the bedroom. D. M. came into the room without a diaper having soiled himself. Defendant became angry and took the child into the bathroom, held him upside down by his leg under the shower, and forcefully scrubbed the child's buttocks with a washcloth. When D. M. began screaming, defendant stuffed the soiled washcloth he had been using into the child's mouth. Ashley M., who was pregnant at the time, yelled repeatedly at defendant to stop. When defendant put D. M. down, Ashley M. sat on the couch with the child and cried with him. Then, she left the house with D. M. and went to stay with her mother. Ashley M. told several family members about the incident, including defendant's mother, but did not report it the police or other authorities because she was in love with defendant and felt "he had to live with himself, and that was worse than anybody else could do to him."
During Ashley M.'s testimony about the incident involving D. M., she admitted that, during a previous hearing, she had falsely testified that defendant did not shove the soiled washcloth into the child's mouth. She explained that, at that point in time, she was still in love with defendant and was hoping to salvage their relationship. However, she later decided she "had to be honest about what really happened" and contacted the district attorney's office to tell them she "had lied on the stand and that [defendant] did shove the washcloth in [D. M.'s] mouth."
February 26, 2014--Counts Seven, Eight, Nine, And Ten
Ashley M. eventually returned to defendant. The verbal and physical abuse continued, culminating in an incident that occurred on February 26, 2014. Defendant was being verbally abusive to Ashley M., who told him she had had enough and was leaving. Ashley M., who was 32 weeks pregnant, went to D. M.'s bedroom and started packing his clothes. D. M., who was in the living room with defendant, told defendant, "[W]e are leaving; we are going to go to Mow Mow's [(Ashley M.'s mother)]." Ashley M. heard defendant ask D. M. what he said, and then heard the child running down the hallway into the room with defendant following. Ashley M. told defendant, "[Y]ou will never touch him again." Defendant grabbed Ashley M. by the arms, picked her up, and threw her, stomach down, onto one of D. M.'s toys. The ladder from the bunk bed came down on top of her. Defendant left the house. Ashley M. began having contractions and went with her sister to the hospital, where it was confirmed she was having contractions and in preterm labor, meaning she would have the baby seven weeks before her due date unless the contractions were stopped. She sent defendant a text message that read, "You threw the bunk bed ladder on me?" and told him, "I am officially in preterm labor." Ashley M.'s arm was bruised, sore, and very swollen.
Later, Ashley M. talked to defendant about what happened. Defendant denied the incident, saying she fell by herself and "made it up." Although she initially left defendant, the verbal abuse continued, including text messages from defendant telling Ashley M. that she "should just die" and stating, "If you acted like a lady, a wife, a mom, I'd treat you like one."
April 29, 2014--Counts Eleven, Twelve, Thirteen, And Fourteen
As a result of her injuries from the February 26, 2014, incident, Ashley M. delivered her son, E. C., six weeks premature by emergency caesarean section. She and defendant got back together, but "things at home were just miserable" and "just terrifying" and she left again, only to return again later. The verbal and physical abuse continued. On April 29, 2014, Ashley M. and defendant got into an argument. Ashley M. decided to sleep on the couch with their then one-month-old baby. During the night, she sent defendant a text message telling him she had proof that he had been with someone else and she was going to leave him. A few hours later, defendant came into the room yelling at her and threatening to "chop [her] up into little pieces." As she held E. C. on her chest, defendant hit her in the head, spit on her, and called her a "bitch." Ashley M. told defendant she was "calling the cops" and put E. C. down as she got up to get her phone. Defendant took her phone from her and threw it across the room. When Ashley M. tried to retrieve it, defendant grabbed it and went outside, and then came back inside without the phone. Ashley M. told him she was going to call the police and demanded her phone. Defendant grabbed some clothes and, on his way out, told her the phone was in the street.
Ashley M. went outside to look for her phone. As she stood in the middle of the street, defendant got into his truck and backed out, grazing her clothing as he drove off. The next day, Ashley M. contacted authorities and reported the incident, as well as prior incidents of abuse by defendant.
Prior Incidents Of Domestic Violence
Shelly M.
Defendant was married to Shelly M. from July 1996 to the end of 1999. They had one daughter together, Ke. C. Shelly M. characterized her relationship with defendant as "[v]iolent" and "[v]ery physically abusive." Defendant "[s]lapped, bit, spit on, hit, kicked, [and] choked" her and pointed and threw weapons at her. Defendant blackened her eyes when he hit her, left bruises when he choked her, and assaulted her three or four times when she was pregnant. He dragged her by her feet down a flight of stairs, kicked her in the stomach, threw a table at her, and jumped on top of her. On one occasion, defendant threw something at her then three-year-old son. When Shelly M. got in the way to protect her son, defendant grabbed her arms with both hands, pushed her, and threw a coffee cup at her, leaving a bruise on her leg. Shelly M. did not report the incidents because defendant threatened to kill her. She eventually left because she was in fear for her life and the lives of her children.
Defendant also verbally abused Shelly M., yelling at her and calling her names, several times in front of her son. Once during an argument, while Shelly M. was carrying her young child, defendant hit Shelly M. in the head, blackening both of her eyes and giving her a fat lip. On another occasion, Shelly M. was reading to her son on the bed when defendant jumped on top of her, chambered a bullet in his gun, and stuck the gun in her side.
Laura H.
Laura H. dated defendant on and off for three years, from approximately 1999 through 2002 or 2000 through 2003. During that period, defendant assaulted Laura H. approximately five times, backhanding her and, on one occasion, breaking her nose. One time, defendant went to Laura H.'s work to pick up his daughter's car seat from her. They got into an argument and defendant hit Laura H. in the ear causing her earring to go into her head. Laura H. filed a police report. She did not see defendant again after that.
Crystal M.
Crystal M. and defendant were in a relationship for approximately six years beginning in 2003. They had two children together, W. C. and Ka. C. During the relationship, defendant was violent on multiple occasions, sometimes in front of the children and sometimes when Crystal M. was pregnant. Crystal M. testified that defendant had done many things to her, including kicking her in the ribs when she was down, throwing things at her, spraying bleach on her when she was in the shower, ripping her out of the shower, and throwing her against a wall heater, which burned the back of her arm. She did not call the police because defendant was "very charming" and was good at making her feel like he was sorry and wanted to "fix things." She loved him and, because they were having children together, she wanted to make it work.
On one occasion, when defendant's daughter Ke. C. was visiting, defendant and Crystal M. were exchanging words when defendant began yelling at Crystal M. and spit on her. Ke. C. took her infant half sister, Ka. C., and hid under a table. On another occasion, defendant came after Crystal M. with a gun and hit her with it in the eyebrow. She did not report the incident to police because she felt "manipulated and controlled by [defendant] and his mother."
Defendant was also verbally abusive to Crystal M., calling her names like "cunt," "bitch," and "whore." Crystal M. felt defendant was more violent when he was using drugs.
In September 2004, during an argument over finances, defendant grabbed Crystal M. by the hair, ripping out "a bunch." Crystal M. called 911 and made a report about the incident.
Ke. C.
Ke. C. is the daughter of defendant and Shelly M. Ke. C. testified she had no relationship with defendant because, when she was seven years old, she witnessed defendant hit Crystal M. in the face while Crystal M. was holding her infant half sister Ka. C. Ke. C. grabbed her sister from Crystal M.'s arms and hid under a table. She saw defendant knock Crystal M. to the ground, where he continued to beat her up and spit in her face.
Defendant's Testimony
Defendant testified at length regarding his relationship with each of the victims, acknowledging he was a "jerk" and verbally abusive in his relationships with the victims, sometimes yelling and throwing things, but denying punching, hitting, spitting on, or pulling a weapon on them, or any other physical violence against any of them. He characterized the incident with D. M. as "[n]o big deal," and explained he was not angry, just disappointed at Ashley M.'s laziness. He denied ever putting the dirty washcloth in D. M.'s mouth. He claimed each of the victims' claims of physical abuse was untrue.
With regard to the February 26, 2014, incident, defendant denied pushing Ashley M., claiming he bumped into her and she fell, pulling the bunk bed ladder down on top of herself.
PROCEDURAL HISTORY
Following a jury trial during which defendant was represented by retained counsel, Timothy Balcom, defendant was found guilty of four counts of corporal injury to a cohabitant (counts one, four, five, and seven); assault by means of force likely to produce great bodily injury (counts two and eight); false imprisonment by violence (count three); misdemeanor child abuse (counts ten and twelve); misdemeanor battery of a spouse or cohabitant (count thirteen); misdemeanor damaging or removing a wireless communication device (count fourteen); and misdemeanor child abuse as a lesser offense to felony child abuse (count six). Defendant admitted the on-bail allegations.
Defendant, represented by newly retained counsel, Michael Wise, filed a motion for new trial. Thereafter, defendant filed a supplemental motion for new trial, abandoning the previous grounds and arguing ineffective assistance of counsel for failure to interview and present various material witnesses. Following a hearing, the trial court denied the supplemental motion.
At the sentencing hearing, defendant argued that contrary to the recommendation of the probation officer, section 654 precluded consecutive sentences on counts one, two, and three because defendant's effort to prohibit Meagan B. from leaving was incidental to the assault. The court agreed that punishment for the assault charge should be stayed, but not for the false imprisonment charge, and sentenced defendant to an aggregate term of eight years eight months in state prison, comprised as follows: three years (the middle term) for count one, plus three years (the middle term) for count two (stayed pursuant to section 654), a consecutive eight-month term (one-third the middle term) for count three, consecutive one-year terms each for counts four, five, and seven, a consecutive three-year term for count eight (stayed pursuant to section 654), a consecutive two-year term for the on-bail enhancement as to count four, and consecutive two-year terms for the on-bail enhancements as to counts five and six (stayed pursuant to section 654).
The jury found defendant not guilty of counts nine and eleven (two counts of assault with a deadly weapon). --------
Defendant filed a timely notice of appeal.
DISCUSSION
I
Denial Of Motion For New Trial Was Proper
Defendant contends the trial court erred in denying his supplemental motion for new trial. He claims the court should have inquired further regarding his allegations of ineffective assistance of counsel. The claim lacks merit.
Section 1181 expressly limits the trial court's statutory ability to grant a new trial to only nine enumerated grounds, of which ineffective assistance of counsel is not one. "Nevertheless, the statute should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law. . . . [Citations.] The Legislature has no power, of course, to limit this constitutional obligation by statute. [Citation.] It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel's effectiveness to the trial court as the basis of a motion for new trial." (People v. Fosselman (1983) 33 Cal.3d 572, 582.)
We review a trial court's ruling on a motion for new trial for abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 140; People v. Ochoa (1998) 19 Cal.4th 353, 473.) In reviewing the denial of a motion for a new trial raising ineffective assistance of counsel claims, we uphold the trial court's factual findings if they are supported by substantial evidence, and we exercise our independent judgment on the legal issues. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
Defendant has the burden of proving a claim of ineffective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) To meet this burden, he must prove (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings, the result would have been more favorable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693-694, 698]; People v. Bell (1989) 49 Cal.3d 502, 546.)
Defendant's supplemental motion for new trial argued his trial counsel, attorney Balcom, failed to interview or present for trial testimony various material witnesses, including: Anna Hunting (aunt), Chris Oregila (friend), Elaina Finley (sister), James H. Coleman (father), Jason Fox (friend), Robert Hunting (cousin), Scott Stabile (friend), Shalene Cupler (friend), Jane Snegosky (friend), and Lisa Stabile (friend). The motion attached investigative reports setting forth information provided by each purported witness to the defense investigator.
Defendant's motion argued these potential defense witnesses "could have presented mitigating or exculpatory evidence." The motion identified each of the potential witnesses, summarized the information about which he or she was prepared to testify, and attached investigative reports summarizing information obtained by defense investigator Dave Howard during telephone conversations with each potential witness.
The People opposed the motion and argued the purported witness statements indicated disbelief that defendant was capable of assaulting Meagan B. or Ashley M., but none of the statements addressed either the two child victims or the prior victims, and none was more appropriate in defending the victims' testimony than defendant's own testimony. The People further argued defendant had not shown the requisite prejudice. In that regard, the People argued the purported testimony was cumulative and, in some instances, directly contradicted defendant's own testimony of admitted violence.
At the hearing on defendant's motion, the trial court stated that, while the purported witness statements provided evidence regarding defendant's character, they lacked evidence regarding the actual charged offenses and would not likely have overcome evidence such as the pictures of the injuries sustained by the victims.
We agree with the trial court that the purported witness testimony, though relevant to defendant's character, did not offer exculpatory evidence regarding the charged crimes. For example, according to defendant's motion, Anna Hunting (defendant's aunt) would have testified that she never had any problems with defendant and had never seen him exhibit a temper or get involved in any physical altercations. She would also have testified that she had only had contact with Ashley M. three to four times. Similarly, defendant's friends, Chris Oregila, Jason Fox, Scott Stabile, Shalene Cupler, Jane Snegosky, and Lisa Stabile would all have testified that they did not know defendant to be violent and had never observed him to be aggressive towards the victims. However, none of the witnesses would have testified about their personal knowledge of the particular assaults of which defendant was accused and none were offered to rebut the evidence of the victims' physical injuries as documented in photographic evidence shown to the jury.
Also, as the People point out, the summary of James H. Coleman's (defendant's father) purported testimony did not corroborate defendant's alibi that, on November 21, 2011, he was at home with his father and cousin and not with Meagan B. when the physical assault on Meagan B. resulting in a black eye occurred. The same is true of the summary of Robert Hunting's (defendant's cousin) purported testimony, which likewise fails to corroborate defendant's story.
In its ruling, the court added that the purported statements were unsworn and not in the form of a declaration, which "sort of degrades or diminishes it as possible evidence for the purposes of considering the motion." The trial court was correct. A statutory motion for new trial based on newly discovered evidence must be supported by adequate affidavits, without which there is not a sufficient legal basis to grant the motion. (See § 1181; People v. Ethridge (1962) 204 Cal.App.2d 279, 282-283.) While defendant's motion was nonstatutory, the same principle nonetheless applies where, as here, the motion was based on purported evidence not presented at trial. In that regard, defendant's motion included defendant's summarization of the purported testimony, which was itself based on the defense investigator's summary of information obtained during telephone conversations with the potential witnesses.
Finally, the court noted its opinion that defendant's trial counsel "did a very commendable job[,]" even "secur[ing] acquittals on several of the counts." Concluding defendant failed to establish the requisite deficient performance and resulting prejudice, the court denied the motion.
In light of the significant victim testimony and photographic evidence demonstrating defendant's consistent pattern of verbal and physical abuse, and the purported witnesses' lack of personal knowledge regarding the charged crimes, it is not reasonably probable defendant would have obtained a more favorable result had trial counsel presented the purported witnesses at trial. Defendant failed to establish that his trial counsel was prejudicially ineffective. The trial court did not abuse its discretion in denying the motion for new trial.
II
The Court Was Correct In Imposing Multiple Punishment
For Corporal Injury And False Imprisonment
Defendant contends, as he did in the trial court, that his consecutive eight-month term for false imprisonment against Meagan B. (count three) must be stayed in light of his three-year punishment for corporal injury against her (count one) because both crimes arose from an indivisible course of conduct.
We disagree because the trial court's factual finding that defendant had separate objectives for both crimes is supported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438 [standard of review].) Before punching, kicking, choking, grabbing and injuring Meagan B., defendant argued with her about the fact that the dishes had to be done, and it was her job, not his, to do them. It could be inferred from these facts that defendant beat and injured her to punish her for not doing the dishes that then he had to do. Apart from that, defendant grabbed her phone and threw it, and dragged her back into the living room twice before she was able to leave. It could be inferred from these facts that defendant damaged her phone and kept her confined in the house to prevent her from reporting the abuse. This evidence supports the trial court's finding of multiple intents. We therefore conclude the trial court was correct in not staying the eight-month punishment for false imprisonment.
III
Imposition Of Multiple On-Bail Enhancements
Defendant contends the trial court erred in imposing three (although staying the latter two) separate enhancements pursuant to section 12022.1, one each for counts four, five, and six. He is correct.
The court imposed punishment for the on-bail enhancements alleged as to counts four, five, and six, but stayed the punishment on those enhancements attached to counts five and six. The abstract of judgment reflects on-bail enhancements for counts four, five, and six, and shows that the court stayed the punishment for those enhancements as to counts five and six.
On the imposition of on-bail enhancements, this court explained as follows: "In People v. Tassell (1984) 36 Cal.3d 77 our Supreme Court construed section 1170.1 as follows: 'Section 1170.1 refers to two kinds of enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. Enhancements for prior convictions--authorized by sections 667.5, 667.6 and 12022 .1--are of the first sort. . . . Enhancements of the second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with particular counts but, since they are related to the offender, are added only as a step in arriving at the aggregate sentence.' (Id. at p. 90, italics added.) In line with this reasoning, Tassel held that 'enhancements for prior convictions do not attach to particular counts but are added just once as the final step in computing the total sentence.' (Ibid., fn. omitted.)" (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1261-1262.) Because an on-bail enhancement is of the first sort, it may only be imposed once for each primary offense regardless of the number of secondary offenses. (Id. at p. 1262.) Thus, the proper disposition of the stayed terms for the on-bail enhancements was to strike them. (People v. Augborne (2002) 104 Cal.App.4th 362, 376-377.) Therefore, we strike the on-bail enhancements for counts five and six and order the abstract amended accordingly.
DISPOSITION
The judgment is modified to strike the on-bail enhancements as to counts five and six. As modified, the judgment is affirmed. The trial court is directed to: (1) prepare an amended abstract of judgment deleting reference to the on-bail enhancements for counts five and six; and (2) deliver a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Mauro, J.