Opinion
B221393
08-12-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CORMIER, Defendant and Appellant.
Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Joseph P. Lee and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. BA324478)
APPEAL from a judgment of the Superior Court of Los Angeles County. Dennis Landin, Judge. Modified in part; affirmed in part.
Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Joseph P. Lee and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Joseph Cormier was convicted, following a jury trial, of one count of gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5, subdivision (a) and one count of evading an officer causing death in violation of Vehicle Code section 2800.3, subdivision (b). The victim in both counts was the same. The jury found true the allegation that appellant had suffered two prior serious or violent felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the introduction of blood test results violated his constitutional right to confrontation and that expert testimony on an ultimate issue violated his constitutional rights to due process and a jury trial, and further contending that the trial court abused its discretion by refusing to strike his prior strike and erred in failing to stay the evading conviction pursuant to section 654. At our request the parties briefed the issues of whether the trial court should have imposed a court security fee pursuant to section 1465.8, subdivision (a)(1) and a construction assessment pursuant to Government Code section 70373, subdivision (a) for each count. During the pendency of this appeal, the United States Supreme Court issued its opinion in Bullcoming v. New Mexico (2011) 131 S.Ct. 2705. At our request, the parties briefed the impact of Bullcoming on appellant's Confrontation Clause claim. We order sentence on the evading conviction stayed pursuant to section 654 and correct the fees and assessments imposed, as set forth in more detail in the disposition. We affirm the judgment of conviction in all other respects.
Facts
On June 14, 2007, about 10:45 p.m., Los Angeles Police Officers Joseph Rubalcava and Nicholas Gallego were on patrol when they saw a burgundy Saturn traveling toward them at high speed. The Saturn almost hit the police car as it passed. Officer Gallego saw the driver, who was appellant.
Officer Gallego followed the Saturn, which went through a stop sign without stopping. The officer briefly lost sight of the car, then saw it parked in a driveway. Someone got out of the rear passenger area. The Saturn then reversed out of the driveway very quickly and sped toward the patrol car, again narrowly missing it. The officers followed the Saturn.
Appellant drove through a red light, disappeared briefly from the officers' view, reappeared and drove through another red light, nearly hitting another car. Appellant got onto the eastbound 10 freeway, wove in and out of traffic, then got off the freeway at Hoover Street. He turned around, drove back on Hoover to the freeway and drove westbound onto the exit ramp for eastbound traffic, the same ramp he had used moments before to get off the freeway. The officers followed with their lights and sirens on. Appellant jumped a curb and headed east with the traffic on the freeway.
At the interchange of the 10 freeway and the 60 freeway, appellant made a u-turn and began driving against traffic. The patrol car also made a u-turn, but pulled onto the shoulder to avoid the oncoming traffic. Within seconds the Saturn collided with a tractor trailer. The officers drove to the scene. Appellant was inside the car with what appeared to be a broken leg. He was not screaming or yelling. There was a passenger in the car. The passenger, Kemora Williams, was crushed in the collision and died from her injuries.
The parties stipulated that on June 15, 2007, at 2:30 a.m., registered nurse Preciado withdrew blood from appellant at the U.S.C. Medical Center.
Tatiana Garcia, a criminalist with the Scientific Investigation Division of the Los Angeles Police Department, testified at trial that her department analyzed the blood drawn from appellant on June 15. The analysis was performed by Kristina Takeshita, who did not testify at trial.
Garcia testified that based on Takeshita's blood analysis, her opinion was that there was cocaine in appellant's blood which was taken at some point up to 12 hours before the blood was drawn. She based this opinion on the presence of cocaine and benzolezgine, which is the primary metabolite of cocaine. Garcia explained that cocaine is a central nervous system stimulant which hyperactivates certain bodily functions such as heart rate, respiratory rate and body temperature.
Los Angeles Police Officer Victor Escobedo testified at trial as a drug recognition expert. He explained that some physical symptoms of being under the influence of a central nervous system stimulant such as cocaine are red, bloodshot eyes, dilated pupils, dry mouth, profuse sweating, restlessness, and inability to concentrate. Drivers who are under the influence of such a stimulant often misperceive time and distance, are paranoid, and experience euphoric feelings.
Officer Escobedo reviewed the police report of appellant's accident and based on the description of appellant, opined that appellant exhibited physical signs of being under the influence of a stimulant such as cocaine. In response to a hypothetical based on the facts of this case, Officer Escobedo opined that the driver's behavior was consistent with being under the influence of a stimulant such as cocaine. Officer Escobedo further opined that "[i]n this particular case" based on his reading of the police report: "My opinion is the driver of the vehicle was under the influence of a central nervous system stimulant consistent with cocaine and wasn't able to operate a motor vehicle safely."
According to Officer Escobedo, the police report described appellant as having watery eyes, dilated pupils, rigid body posture, repetitive speech, body tremors, and profuse sweating.
Appellant presented the testimony of California Highway Patrol Officer John Leffert, who responded to the scene of appellant's collision on June 14 and spoke with Officers Gallego and Rubalcava. Officer Leffert testified that Officer Gallego told him that immediately prior to the accident, the Saturn had gotten off the freeway and then back on going the wrong way. When Officer Leffert asked follow-up questions, Officer Gallego admitted that he and Officer Rubalcava requested to speak with a lawyer. Their supervisor ordered them to have an attorney present during questioning. This is a common practice when there has been a fatality.
Appellant also presented the testimony of John Treuting, a clinical and forensic toxicologist. In response to a hypothetical based on the facts of this case, Treuting testified that the driver was not exhibiting any physical manifestations that conclusively demonstrated that he was under the influence of cocaine so that his driving ability was affected.
Appellant also testified in his own behalf. He admitted to a prior violent felony conviction in 1980, a prior serious felony conviction in 1995, and committing grand theft in 2006. He testified that on June 14, 2007, he dropped his brother Matthew off at Matthew's girlfriend's house. Appellant then stopped for gas on the corner of Crenshaw and Adams Boulevard. A man whom he had known in prison approached him and asked for a ride home. Appellant agreed to give the man and his girlfriend a ride.
Once appellant started driving, the two pulled knives on appellant. They told him to go faster and began going through his pockets. He saw a patrol car and drove faster, hoping to let the officers know something was wrong. The man hit appellant on the head. Appellant put his hands to his head. The woman grabbed the steering wheel. The man directed appellant to the driveway of a residence, where the man took appellant's money and got out of the car.
The woman told appellant to drive. He drove through a red light at her direction. Appellant remembered getting on the 10 freeway and struggling with the girl for control of the car, which caused him to spin around. He testified that she grabbed the wheel immediately before the collision.
Appellant suffered broken ribs and a broken leg among other injuries as a result of the collision. He admitted using cocaine earlier on the day of the accident and smoking marijuana.
Discussion
1. Blood tests
An analysis of appellant's blood was done by criminalist Kristina Takeshita of the Los Angeles Police Department. At trial criminalist Tatiana Garcia testified about the results of the analysis. Appellant contends that he was denied his Sixth Amendment right to confront and cross-examine Takeshita.
Respondent contends that appellant has forfeited this claim by failing to object to Garcia's testimony about Takeshita's analysis on Sixth Amendment grounds. Appellant contends that any objection would have been futile since People v. Geier (2007) 41 Cal.4th 555 was the controlling precedent at the time of his trial, and Melendez-Diaz v. Massachusetts (2009) 557 U.S. _ , which appellant contends invalidates the holding of Geier, had not been decided. The Supreme Court had decided Crawford v. Washington (2004) 541 U.S. 36 well before appellant's trial. The ruling in Melendez-Diaz "involve[d] little more than the application of [the] holding" in Crawford. (Melendez-Diaz, supra, 129 S.Ct. at p. 2542.) Accordingly, appellant has forfeited his claim.
Appellant contends that if his claim is forfeited, he received ineffective assistance of counsel. We do not agree.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
The United States Supreme Court has held that the admission of hearsay that is testimonial in nature constitutes a violation of the Sixth Amendment right of confrontation where the declarant is unavailable to testify at trial and the defendant had no prior opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at p. 68.) The Crawford court did not give a definitive statement of what constitutes a "testimonial" statement. The Court observed that "[v]arious formulations of this core class of 'testimonial' statements exist," including "'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,'" and "'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" (Id. at pp. 51-52.)
There is no United States Supreme Court or California authority for the proposition that Crawford precludes a prosecution scientific expert from testifying as to an opinion in reliance upon another scientist's report. The California Supreme Court has rejected the argument that testing results can be admitted only through testimony by the scientist who personally performed the testing. (People v. Geier, supra, 41 Cal.4th at p. 607.)
In Geier, the report itself was not admitted in evidence. Rather, the expert relied upon the data contained in the report to formulate his opinions, and he was subject to cross-examination as to those opinions and the bases upon which they were formed. As the Court in Geier explained, for Sixth Amendment confrontation purposes, opinion testimony by a scientific expert in reliance upon a report containing data obtained by another scientist is not the equivalent of the admission of hearsay contained in the report itself. The court pointed out that the results of the DNA testing could have been either inculpatory or exculpatory. The accusatory opinions in the case — that defendant's DNA matched samples taken from the victim and that such a result was very unlikely unless defendant was the donor — "were reached and conveyed not through the nontestifying technician's laboratory notes and report, but by the testifying witness, [the DNA expert]." (People v. Geier, supra, 41 Cal.4th at p. 607.)
The testimony in this case comports with Geier. The accusatory opinion in this case was conveyed by the testifying criminalist, Garcia. Garcia worked in the laboratory where the tests were performed.
Appellant originally contended that Geier's holding and rationale had been invalidated by the United States Supreme Court's recent holding in Melendez-Diaz. He now argues that Bullcoming considers the issue raised in this case, is controlling and supports his position. We do not agree.
The opinion in Bullcoming is a plurality opinion. The narrow holding of the case is that a laboratory test report is a testimonial statement of the analyst who performed the test within the meaning of Crawford v. Washington, supra. The report may therefore not be admitted into evidence unless the analyst testifies or is unavailable to testify and the defense has had a prior opportunity to cross-examine him. (Bullcoming, supra, 131 S.Ct. at pp. 2713-2714.)
In her concurring opinion in Bullcoming, Justice Sotomayor points out that there are four factual scenarios which were not presented for consideration or resolved in the majority opinion in that case. One of those scenarios is where "an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." (Bullcoming, supra, 131 S.Ct. at pp. 2722-2733 (Sotomayor, J., conc.).) That was the factual situation before the California Supreme Court in People v. Geier, supra. Thus, Geier remains good law.
"When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. . . .' [Citation.]" (Marks v. United States (1977) 430 U.S. 188, 193.) "When there is no majority opinion, the narrower holding controls. [Citation.]" (Panetti v. Quarterman (2007) 551 U.S. 930, 949.) Thus, Justice Sotomayor's concurring opinion is the holding in Bullcoming.
It is well-established in California law that an expert witness may base his opinion "on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible" so long as the material is of a type that may reasonably be relied on by an expert in forming an opinion on the subject at hand. (Evid. Code, § 801, subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 618.) Thus, an expert witness can base his "opinion on reliable hearsay, including out-of-court declarations of other persons." (In re Fields (1990) 51 Cal.3d 1063, 1070.)
"[B]ecause Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter . . . upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (People v. Gardeley, supra, 14 Cal.4th at p. 618.) "[A] witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact." (Id. at p. 619.)
The Federal Rules of Evidence are in accord. Rule 703 of the Federal Rules of Evidence permits an expert to base his opinion on facts and data which would not be admissible in evidence, as long as they are of a type reasonably relied upon by experts in the particular field. (See also, e.g., United States v. Richardson (8th Cir. 2008) 537 F.3d 951, 960 [no confrontation clause violation where DNA expert testified as to her conclusions based her review of DNA tests conducted by another scientist, even though other scientist did not testify, where the expert testified about her own conclusions and was subject to cross-examination].)
Since Geier is still good law, and Garcia's expert testimony is permissible under Geier, counsel acted reasonably in not objecting on confrontation clause grounds. For those same reasons, any objection by counsel would not have been meritorious. There is no reasonable probability that appellant would have received a more favorable outcome if counsel had objected. Appellant's claim fails.
2. Officer Escobedo
Appellant contends that the trial court erred in permitting expert witness Officer Escobedo to offer the following testimony: "My opinion is the driver of the vehicle was under the influence of a central nervous system stimulant consistent with cocaine and wasn't able to operate a motor vehicle safely." He contends that this testimony was an improper opinion on an ultimate issue in the case, violated his state and federal right to due process and was prejudicial. Respondent contends that appellant has forfeited this claim by failing to object on this ground in the trial court. We agree.
Appellant contends that he preserved this claim by objecting to the testimony on the ground that it was an "improper hypothetical." We do not agree. Hypotheticals can be improper for a number of reasons. Nothing in counsel's objection told the trial court that counsel was claiming that the hypothetical was improper because it called for an opinion embracing the ultimate issue in the case. Appellant also contends that an objection would have been futile because the trial court overruled the "improper hypothetical" objection. We see nothing about that ruling which indicates that the trial court would necessarily have overruled an ultimate issue objection.
Appellant contends that if his claim was forfeited, he received ineffective assistance of counsel. Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
"Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) The admissibility of expert opinion testimony that embraces the ultimate issue "'depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved. . . .'" (People v. Killebrew (2002) 103 Cal.App.4th 644, 652.)
The first part of Officer Escobedo's testimony was that "appellant was under the influence of a central nervous stimulant consistent with cocaine." It is common for police officers to opine that, based on tests and observations, a defendant was under the influence of alcohol or drugs when the officer encountered him. Even lay witnesses with proper experience may give an opinion that a defendant was under the influence of alcohol or drugs. (People v. Williams (1988) 44 Cal.3d 883, 914-915; see People v. Leahy (1994) 8 Cal.4th 587, 610-611 [if it was determined that HGN test for intoxication was generally accepted in scientific community, officer who administered test could give opinion that, based on test results, defendant was intoxicated].)
We see nothing about the facts of this case which would warrant a deviation from the common practice of permitting opinion testimony that a defendant was under the influence of alcohol or drugs. Appellant's counsel had no reason to object to this portion of the testimony. (People v. McPeters (1992) 2 Cal.4th 1148, 1173 [no duty to make unmeritorious arguments].)
The second part of Officer Escobedo's testimony was that appellant "wasn't able to operate a motor vehicle safely." Appellant contends that this testimony was improper under People v. Killebrew, supra.
Officer Escobedo's testimony comes very close to the improper opinion testimony in Killebrew. We will assume for the sake of argument that Officer Escobedo's testimony about appellant's ability was improper. We see no reasonable probability that appellant would have received a more favorable outcome in the absence of the testimony.
Officer Escobedo properly gave his opinion that appellant was under the influence of a stimulant like cocaine at the time of the crash. There was evidence that appellant had ingested cocaine that day. Appellant manifestly did operate his vehicle in an unsafe manner. Thus, the most reasonable inference from the evidence is that the cocaine rendered appellant unable to drive safely. Given the absence of any other reasonable explanation for the unsafe driving, it is the only reasonable inference.
Appellant's explanation for his driving was entirely incredible.
3. Refusal to strike prior convictions
Appellant contends that the trial court abused its discretion in refusing to strike his two prior serious felony convictions because those convictions were remote in time and because he was not a career criminal. We see no abuse of discretion.
Rulings on motions to strike prior convictions are reviewed under the deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we affirm the trial court's ruling. (People v. Carmony (2004) 33 Cal.4th 367, 373.)
Appellant's counsel argued that his 1980 conviction was remote in time and that although his criminal history continued after 1980, his only other serious offense occurred in 1994. Counsel also argued that appellant led a family-oriented life and was 50 years old. She also offered a mitigation report that gave details of appellant's childhood, history of drug addiction, and relationships with family members.
The trial court ruled: "Well, I'm not judging [appellant] as a father or husband. I have to make a decision based on his history and his conduct. Both are, in a word, awful. Even though the prior strike is remote in time, everything else about this case suggests that the criteria set forth in People versus Williams to justify striking the strike has not been met. There was not a significant period of time where one could say he lived a law-abiding life. He clearly fits the definition of a career criminal. Accordingly, the court denies the motion to strike the strike."
There is evidence to support the trial court's finding that appellant did not live a law-abiding life for any significant period. He had theft-related convictions in 1997. He suffered his prior strike conviction for robbery in 1980. In 1985 he was convicted of receiving stolen property and sentenced to prison. In 1987 he committed grand theft auto and was returned to prison. In 1989 he was convicted of attempted grand theft auto and sentenced to prison. He was convicted of several misdemeanor offenses in the early 1990's. In 1995 he suffered his second strike conviction for robbery. He violated parole in that case in 2001 and was returned to prison. After again being released from prison, he committed the offense of annoying or molesting a child under 18. He then committed the crime in this case.
The trial court's comments indicate that it properly considered the nature and circumstances of appellant's current and prior convictions and the particulars of his background, character and prospects, and reached an impartial decision. (People v. Williams (1998) 17 Cal.4th 148, 161-164.) Thus, the trial court did not abuse its discretion.
4. Section 654
The trial court ordered appellant's sentence for the evading conviction to run concurrently to his sentence for vehicular manslaughter. Appellant contends the trial court erred in so doing and should have stayed sentence on the evading conviction. We agree.
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under either of such provisions, but in no case can it be punished under more than one . . . ." Thus, section 654 applies when there is a single act which violates multiple criminal statutes and where an indivisible course of conduct violates more than one statute. (People v. Latimer (1993) 5 Cal.4th 1203, 1215; Neal v. State of California (1960) 55 Cal.2d 11, 19.) Whether a course of criminal conduct is divisible depends on the intent and objective of the actor. (Neal v. State of California, supra, 55 Cal.2d at p. 19.)
The question of whether the acts of which the defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination made by the trial court on the basis of its express or implied findings concerning the defendant's intent and objective in committing the acts. (People v. Deloza (1998) 18 Cal.4th 585, 594-599.) The trial court's determination is reviewed in the light most favorable to the judgment, and will not be reversed on appeal unless unsupported by the evidence presented at trial. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Here, the trial court stated: "In my view it's the same course of conduct, and it's appropriate for the sentence to run concurrent." We understand the trial court to mean that it was an indivisible course of conduct. There is substantial evidence to support that determination. Although the two offenses legally require different mental states, there is nothing to prevent a defendant from having the same objective in committing both offenses. The only apparent objective of appellant, when he drove the wrong way on the freeway, was to evade the police officers. Accordingly, the trial court should have stayed sentence on the evading conviction pursuant to section 654. (See People v. Sanchez (2001) 24 Cal.4th 983, 992 [punishment for both murder and gross vehicular manslaughter arising from same incident barred by section 654], disapproved on another ground by People v. Reed (2006) 38 Cal.4th 1224, 1228; People v. Sewell (2000) 80 Cal.App.4th 690, 697 [noting that when defendant was convicted of both murder and causing death while evading a police officer arising from same incident, the trial court properly applied section 654 to stay the sentence on the evading count], disapproved on another ground by People v. Howard (2005) 34 Cal.4th 1129, 1139, fn. 5.)
5. Additional fees and fines
At our request, the parties briefed the issue of whether the trial court erred in failing to impose for each count a court security fee pursuant to section 1465.8, subdivision (a)(1) and a construction assessment pursuant to Government Code section 70373, subdivision (a). Respondent contends that the fee and assessment were required. Appellant does not disagree with respondent's position.
The minute order and abstract of judgment in this case show that two $20 security fees were imposed under section 1465.8. That is correct. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) The trial court did not refer to these fees during the oral imposition of sentence, however. Where there is a discrepancy between the clerk's minute order and the oral pronouncement of judgment, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Accordingly, we modify the judgment to reflect the imposition of two $20 court security fees pursuant to section 1465.8, one for each of the counts.
The fee is imposed even though we have stayed sentence on the evading count pursuant to section 654. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.)
The trial court did not impose construction assessments pursuant to Government Code section 70373. That section became effective January 1, 2009. The assessment is $30 for each felony count. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1414.) Accordingly, the judgment is modified to add these assessments.
Disposition
The judgment is modified to impose two $20 security fees pursuant to section 1465.8 and two $30 construction assessments pursuant to Government Code section 70373. Sentence on the count 3 evading an officer conviction is ordered stayed pursuant to section 654. The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting these changes and to deliver a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J. We concur:
MOSK, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.