Opinion
C087125
03-20-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH DARROUGH, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE009999) OPINION ON REHEARING
THE APPEAL
A jury found defendant Michael Joseph Darrough guilty of being a felon in possession of a firearm and willfully resisting a peace officer after he fled from law enforcement officers and threw a gun into a neighbor's yard. After the jury made its findings, the court found defendant had a prior strike conviction and had served eight prior prison terms. The court then sentenced defendant to 14 years in state prison.
Defendant initially raised three contentions on appeal.
Defendant first argued that the court erred by excluding third party culpability evidence showing other individuals in the house to which he fled were also on probation or otherwise prohibited from owning guns and had a similar motive to discard the firearm when officers arrived. Although he could not point to a specific individual that was likely to have thrown the gun into the neighbor's yard, he nevertheless argued that he was entitled to present such evidence to the jury to create a reasonable doubt that he discarded the gun. The court's ruling, in his view, violated his federal and state constitutional due process rights and his right to present a complete defense.
Defendant next argued that the court erroneously excluded from evidence statements he made during a recorded jail phone call that he could not have possessed and thrown the gun found at the scene. Citing the doctrine of authentication and the rule of completeness, he contended that the entire phone call should have been admitted rather than merely the excerpt played by the prosecution, wherein defendant admitted leaving the scene in a Suburban.
Finally, defendant asserted that these purported errors were cumulatively prejudicial.
We originally issued an opinion affirming the judgment after concluding that the trial court did not abuse its discretion in excluding evidence of the probationary status of individuals in the house, that the routine application of the rules governing the admissibility of third party culpability evidence did not violate defendant's federal constitutional rights, and that the trial court properly admitted the prosecution's excerpt of defendant's jail phone call without the additional excerpts requested by defendant. There being no error, we did not address defendant's cumulative error contention.
After we issued our opinion, defendant filed a petition for rehearing raising a new issue based on Senate Bill No. 136 (Senate Bill 136), which became effective January 1, 2020. Given Senate Bill 136's changes to Penal Code section 667.5, subdivision (b) (statutory section references that follow are to the Penal Code unless otherwise stated) which limited the offenses that qualify for a prison prior enhancement, defendant argued his eight one-year prior prison term enhancements must be stricken. We granted the petition and vacated our opinion. The People concede defendant is entitled to relief, and we agree. We shall therefore strike defendant's prison prior enhancements, and affirm the judgment as modified.
An appellate court may exercise discretion to address issues first raised on rehearing. (Alameda County Management Employees Assn. v. Superior Court (2011) 195 Cal.App.4th 325, 338, fn. 10.)
FACTS
On April 21, 2017, Sergeant Joshua Wheeler and Detective Paul Flick of the Sacramento County Sheriff's Department were on patrol in a high crime area in North Highlands. They were in an unmarked police truck when they observed defendant in the driveway of a nearby house. Detective Flick recognized defendant and knew he was on post-release community supervision and was subject to search. At trial, the parties stipulated that defendant was on post-release community supervision, that he was subject to search, and that he was prohibited from possessing any weapons.
The officers parked down the street and began watching defendant. Defendant was wearing baggy clothes and his shirt was untucked. Wheeler saw defendant reach inside a Suburban, which was parked facing towards the house in the driveway. Defendant reached inside the Suburban from both the driver's side and the passenger's side; neither Wheeler nor Flick could see what defendant was doing.
Defendant spoke to another man who came out of the house. As they talked, defendant pointed in the officers' direction. Defendant walked briskly towards the officers' truck, motioned dismissively at them, and then turned around and walked back towards the house. At that point, Wheeler and Flick believed defendant knew they were law enforcement officers.
The officers immediately decided to talk to defendant before he got back to the house. Flick pulled the truck beside defendant, and Wheeler opened his door, identified himself as a sheriff's deputy, and ordered defendant to stop. Defendant ran.
Wheeler got out of the truck and chased defendant. He could see that defendant's hands were reaching toward the front of his waistband, and that his arms were not "in a running motion" as he fled. Based on his observations, and given his 18 years of law enforcement experience, Wheeler believed defendant had a gun in his waistband and was "trying to protect the gun from falling out of his shorts" as he ran.
Defendant ran around the back end of the Suburban and towards the front of the car. His hands were still towards the front of his waistband. Wheeler lost sight of defendant for one and a half to two seconds as he ran behind the Suburban. When Wheeler saw defendant come out from behind the car, he could see defendant's hands were now in a running motion. Wheeler did not see defendant throw a gun.
Defendant ignored Wheeler's commands to stop and get on the ground which were made throughout the entire chase. Defendant ran from the Suburban towards the open front door of the house, and Wheeler followed. Wheeler held defendant there briefly at gunpoint and ordered him to the ground. Instead, defendant ran inside the house.
Wheeler did not follow defendant into the house, and a pair of pit bulls barked at Wheeler at the entrance to the home. From the doorway, Wheeler yelled at defendant to come outside; he saw defendant run down a hallway and into a room. A few minutes later, eight adults and two or three children came out of the house through the front door. All of these people followed Wheeler's commands to come out of the house with their hands out and get on the ground in the driveway. They laid down approximately 10 to 12 feet or more from a fence separating the house from the neighbor's yard. Wheeler did not see any of these individuals throw anything as they left the house or while they were in the driveway. Wheeler described the scene as chaotic and admitted that he was not really watching the people once they were on the ground.
Flick also chased defendant. Like Wheeler, Flick lost sight of defendant as defendant ran behind the Suburban. He did not see defendant throw a gun. Flick ran to the backyard to prevent defendant from escaping from the backdoor. As he ran down the side of the house, he encountered a woman who he believed was trying to crawl out a window. Flick told her either to go out front or get back inside, but he was not sure if she came out of the window and the side gate or went back through the house and out the front door. Flick also found a woman and two children in the backyard pool. He told them to walk down the side yard and go out the side gate to the front yard. On cross-examination, he conceded that three or possibly four people went through the side gate (which was near where a firearm was eventually discovered in the neighbor's yard), two of whom were children.
Neither Flick nor Wheeler saw defendant come out of the house and defendant was not found that day. After backup officers arrived, Wheeler and Flick realized that the Suburban was no longer in the driveway. Although Wheeler did not hear the car leave, Flick said he heard a car "peel out."
Officers discovered a gun in the next door neighbor's yard, near a three-foot high chain-link fence that separated the two houses. Sandra Phelan, who lived in the house next door, was mowing her backyard when she noticed police in the street near the front of her house. Phelan went to the front yard to see what was happening. As she returned to her backyard, she saw a gun on the ground in her front yard, near a gate which separated her front and back yards. The gun was not there one or two hours previously.
Flick recovered a loaded, brown-handled revolver covered in mud from Phelan's yard. The gun was on the ground 18 inches from the chain-link fence. There was a divot in the muddy ground near the revolver, which matched the back strap of the revolver and indicated to Flick that the gun had been thrown to that location. According to Flick, the gun was found approximately 20 feet from where he momentarily lost sight of defendant during the chase.
Kristin Goree was one of the adults living in the house into which defendant fled. Goree was in her bedroom shooting heroin when she heard the law enforcement announcements to come outside. She saw Flick in the backyard from her window; he yelled at her because he thought she was coming out the window. She eventually came out of the house through the front door. She did not see a gun or see anyone throw a gun while outside. At trial, she denied seeing defendant with a brown gun in the days before April 21, 2017, and denied telling officers that she had seen him with a gun. She testified that other people in the house, including herself, were on probation and searched by officers.
Goree admitted she had been convicted of two crimes of moral turpitude.
Flick, who interviewed Goree that day, testified that she told him she had seen defendant with a brown handgun prior to April 21, 2017. According to Flick, Goree said she did not want others to hear her "telling on" defendant, and she seemed afraid; Goree said at trial that people had called her a snitch and threatened her about testifying.
The recovered gun was tested for fingerprints. No fingerprints were found on the gun or its ammunition. DNA analysis was unable to extract a DNA profile from swabs taken from the gun's grip.
Other facts relevant to defendant's contentions on appeal will be set forth, post.
CRIMINAL PROCEEDINGS
Defendant was charged with being a felon in possession of a firearm (§ 29800, subd. (a)(1), count one), and willfully resisting a peace officer in the discharge of his duty (§ 148, subd. (a)(1), count two). The information alleged that defendant had served eight prior prison terms (§ 667.5, subd. (b)), and had a prior strike conviction (§ 667, subds. (b)-(i)).
The jury found defendant guilty as charged, and in a subsequent proceeding, the court found the prior strike and prior prison term allegations true. The court denied defendant's motion to strike the strike prior, and sentenced him to an aggregate term of 14 years in prison, consisting of three years for count one, doubled to six years for the strike, eight consecutive one-year terms for the prior prison term enhancements, and one year in county jail on count two.
DISCUSSION
I
Third Party Culpability Evidence
Defendant contends the trial court erroneously excluded relevant third party culpability evidence when it prohibited him from introducing the probationary status of some of the individuals removed from the residence where defendant fled to show they had the same motive as defendant to discard the firearm when officers arrived. He also argues that excluding the third party culpability evidence unduly infringed on his constitutional right to present a complete defense.
A defendant is entitled to present evidence that a third party, other than the defendant, committed the charged crime if such evidence is "capable of raising a reasonable doubt of [the] defendant's guilt." (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) Although the evidence "need not show 'substantial proof of a probability' that the third person committed the act," evidence of "mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.) Even then, such evidence may be excluded if it is substantially more prejudicial than probative under Evidence Code section 352. (People v. McWhorter (2009) 47 Cal.4th 318, 368.) We review a trial court order excluding third party culpability evidence for abuse of discretion. (People v. Robinson (2005) 37 Cal.4th 592, 625.)
In this case, defendant's third party culpability evidence showed, at most, that some of the eight people removed from the house where defendant fled were on probation, and thus, had a similar motive and opportunity to discard a gun over the fence when police arrived. But as the Supreme Court made clear in Hall, evidence of mere motive or opportunity is not enough to admit third party culpability evidence. (Hall, supra, 41 Cal.3d at p. 833 [evidence of mere motive or opportunity of another to commit a crime, without more, is insufficient to raise a reasonable doubt about a defendant's guilt].) As the trial court found, defendant was unable to show the necessary link between another person and the crime charged. The evidence would do nothing more than invite improper conjecture and speculation by the jury.
Hall is instructive on the type of connections necessary to link a crime to someone other than the defendant for purposes of presenting third party culpability evidence. The defendant in Hall was convicted of murdering an elderly man in his home. (Hall, supra, 41 Cal.3d at p. 829.) The death, initially ruled a result of natural causes, was later determined to be from strangulation after Rhae Foust came forward with information that defendant admitted killing the man; Foust apparently hoped to mitigate punishment for other offenses pending against him. (Ibid.) Foust told authorities that defendant Hall had told him and another man named Rodriguez killed the victim by alternately strangling him; the victim had been eating cottage cheese and had lost control of his bowels when strangled. (Id. at pp. 829-830.) Hall was arrested and admitted to police that he and Rodriguez had driven the victim to the bank, but denied killing him. (Id. at p. 830.) He claimed Rodriguez was the killer. (Ibid.) Hall said nothing about the cottage cheese or the involuntary defecation during the police interview. (Ibid.)
At trial, Hall attempted to show that Foust had actually killed the victim. (Hall, supra, 41 Cal.3d at p. 830.) He intended to base his theory of Foust's culpability on the latter's knowledge of intimate details of the murder that Hall never mentioned; on the fact that a bone in the left side of the victim's neck was broken, although Hall was right-handed; and on the proposed testimony of Foust's estranged wife that he was left-handed, was violent when drunk, and had a history as a police informant. (Ibid.) She would also testify that Foust was a pathological liar. (Ibid.) Other evidence also showed that Foust wore " 'waffle-stomper' shoes" around the time of the murder. (Id. at p. 831.)
The Supreme Court found the trial court erred in rejecting the proffered third party culpability evidence because Hall submitted offers of proof "linking Foust to the actual murder: waffle-stomper prints in the victim's bedroom, the likely left-handedness of the killer, and knowledge of unique particulars of the murder all pointed to Foust as the possible killer." (Hall, supra, 41 Cal.3d at p. 833.) The court found such evidence was sufficient to raise a reasonable doubt as to Hall's guilt. (Ibid.)
Defendant's offer of proof in this case differs markedly from the offer of proof found sufficient in Hall. Defendant did not offer specific evidence linking any particular person in the house to the gun. Instead, defendant merely sought to show several of those persons had a similar motive and opportunity to throw the gun. That was insufficient to warrant introduction of the third party culpability evidence.
While defendant argues more than a speculative link between the third parties and the crime existed simply because some people were near where the gun was located a short time later, we disagree. Defendant offered no evidence showing any other individual had a firearm when he or she left the house or was known to have firearms on previous occasions. Nor was there evidence showing the individuals emerged from the house with their hands around their waistband, as defendant had done when running from police. Instead, according to Sergeant Wheeler, they came out with their hands out and lay prone on the ground. They complied with the officer's commands, and did not flee as defendant did. Moreover, there was no showing that the one or possibly two women and two children who walked down the side yard had any motive or intent to dispose of a firearm.
We conclude the trial court's ruling that defendant's offer of proof was insufficient to raise a reasonable doubt as to defendant's guilt was not an abuse of discretion and that the trial court properly excluded the evidence.
Even if the third party culpability evidence was inadmissible under state law rules of evidence, defendant argues that federal constitutional provisions required its admission. He cites Holmes v. South Carolina (2006) 547 U.S. 319, 324 for the proposition that the federal Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. While that may be true, Holmes does not help defendant.
Holmes involved a state law that prohibited a defendant from introducing third party culpability evidence if the prosecution had presented some forensic evidence, that if believed, strongly supported a guilty verdict. (Holmes, supra, 547 U.S. at p. 321.) The Supreme Court found the evidentiary rule arbitrary, and hence, unconstitutional, because it improperly focused on the strength of the prosecution's case: "If the prosecution's case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues." (Id. at pp. 329-331.) Holmes made clear, however, that evidentiary rules, like the one applied by the trial court here, that regulate the admission of evidence proffered by a criminal defendant to show that someone else committed the crime with which they were charged are not unconstitutional where the rules exclude evidence that does not sufficiently connect the other person to the crime or where the evidence is too speculative or remote. (Id. at pp. 326-327.)
Applying such a rule in this case did not impermissibly infringe on defendant's constitutional right to present a defense. (People v. Boyette (2002) 29 Cal.4th 381, 414 [" ' "[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense" ' "].) Indeed, defendant fails to explain why the relatively routine practice of prohibiting third party culpability evidence that shows only a motive or opportunity to commit a crime somehow falls below a standard of fundamental fairness that it violates a defendant's constitutional rights. (Ibid. [allowing adverse party to impeach the credibility of a witness with prior falsehoods in the same case does not violate a defendant's constitutional rights].)
II
The Telephone Call from Jail
Before trial, defendant called an unknown woman from jail. The prosecutor moved the court to be allowed to play a portion of this recorded call to the jury.
In the excerpt of the call, defendant discusses how he got away from the house. He said: "My truck was parked in the fuckin' driveway, you're layin' people down on the ground . . . [a]nd you don't fuckin' see me gone." He claimed he escaped because his truck was very quiet.
Citing the doctrine of completeness, defense counsel requested that the court admit the entire call. In particular, defense counsel requested that the court allow the jury to hear a portion of the call in which defendant said he could not have run and thrown a gun over the fence. The court ruled in favor of the prosecutor, admitting the excerpt of the call that discussed defendant leaving in the Suburban, but did not allow defense counsel to play the portion of the call where defendant discussed not throwing the gun.
Defendant contends that the rule of completeness mandated that the trial court admit more of his statements from a jail call than the excerpt played by the prosecution. He also argues that the excerpt played for the jury was not properly authenticated because the entire phone call was a necessary part of the call's foundation. Excluding the evidence, he contends, violated his federal constitutional rights.
At the outset, we note that defendant did not object based on authenticity grounds below. Instead, defense counsel only objected based on the rule of completeness. It is well-settled that a defendant's failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable. (People v. Partida (2005) 37 Cal.4th 428, 434.) Defendant's attempt to circumvent this rule by claiming that the doctrine of completeness was inextricably linked to the doctrine of authentication is unavailing. Because defendant failed to specifically object on the basis of authentication below, he has forfeited the issue on appeal. (See Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 173-174 [authenticity objection "forfeited" where not raised "at an appropriate time" because it deprives "the proponent of any opportunity to . . . cure the objection"].)
Defendant next contends that additional portions of the jail call were admissible under Evidence Code section 356. "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." (Evid. Code, § 356.) "The purpose of Evidence Code section 356 is to avoid creating a misleading impression. [Citation.] It applies only to statements that have some bearing upon, or connection with, the portion of the conversation originally introduced. [Citation.] Statements pertaining to other matters may be excluded." (People v. Samuels (2005) 36 Cal.4th 96, 130; People v. Von Villas (1992) 10 Cal.App.4th 201, 272 [court may exercise its discretion to exclude an additional portion of a conversation if it does not serve to clarify or explain the portion introduced by the adverse party].) We review the trial court's ruling on the admissibility of additional portions of the jail call under Evidence Code section 356 for abuse of discretion. (People v. Parrish (2007) 152 Cal.App.4th 263, 274.)
Defendant argues that the trial court abused its discretion because the portion of the call he sought to introduce had "some bearing" on the subject matter of the excerpt of the call introduced by the prosecution. To support this argument, defendant defines the "subject matter" of the call as his conduct at the house the day of the incident.
We find no error in the trial court's reasoning that the subject of the prosecution's call excerpt was much narrower than defendant argues. The trial court properly found that the excerpt related to defendant fleeing in a quiet Suburban and not to the entirety of his alleged conduct the day he eluded police. Defendant simply defines the subject matter of the call excerpt too broadly.
Because Evidence Code section 356 permits the introduction of additional portions of a conversation only where the additional portions are shown to be "necessary to make [the admitted portions] understood" (Evid. Code, § 356), and the additional portion of the call requested by defendant—that he could not have pulled the gun from his waistband and thrown the gun—did not serve to clarify or explain his escape in the Suburban (People v. Von Villas, supra, 10 Cal.App.4th at p. 272), we find no abuse of discretion here.
Defendant cites Harmon v. San Joaquin Light & Power Corp. (1940) 37 Cal.App.2d 169, 174 for the proposition that movies may be edited in a deceptive fashion. While we do not quarrel with that general proposition, Harmon did not consider the propriety of admitting various excerpts from a phone call dealing with differing subject matter--the issue presented here. (People v. Avila (2006) 38 Cal.4th 491, 566 ["It is axiomatic that cases are not authority for propositions not considered"].)
Defendant also claims that excluding his self-serving exculpatory statement in the remainder of the jail call violated his constitutional right to due process. We disagree. "The 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.' " (People v. Hovarter (2008) 44 Cal.4th 983, 1010.) Applying Evidence Code section 356 to exclude the additional portion of defendant's jail phone call did not deny due process. Defendant's statement during the jail phone call about leaving the scene in the Suburban was clear, and his statement that he would have been unable to run and throw the gun was unnecessary to put the escape statement in context.
III
Cumulative Error
Defendant contends the individual and cumulative impact of the trial court's purported errors deprived him of due process and his right to a fundamentally fair trial. Since we have found that defendant's assertions of error fail, we need not address this contention further.
IV
Senate Bill No. 136
In supplemental briefing on the petition for rehearing, defendant contends and the People agree that recently-enacted Senate Bill 136, which limits the prior offenses that qualify for a prior prison term enhancement under section 667.5, subdivision (b), applies retroactively to his case. We agree.
The Legislature enacted Senate Bill 136 on October 8, 2019 (Stats. 2019, ch. 590, § 1), and it became effective on January 1, 2020. (Cal. Const., art. IV, § 8; Gov. Code, § 9600, subd. (a); People v. Camba (1996) 50 Cal.App.4th 857, 865.) Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years.
Senate Bill 136 amends section 667.5, subdivision (b) to limit its prior prison term enhancement to people who have served a sentence for a sexually violent offense, as defined. The amended provision states in pertinent part: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).)
We concur with the parties that the changes effected by Senate Bill 136 should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-309 (Lara).)
New criminal legislation is generally presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) Where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 (Estrada) " 'that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' [Citations.]" (Lara, supra, 4 Cal.5th at p. 308.) Conversely, the Estrada rule " 'is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express saving clause or its equivalent.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)
"A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so." (People v. Hurlic (2018) 25 Cal.App.5th 50, 56, citing People v. Francis (1969) 71 Cal.2d 66, 75-78.) --------
Here, Senate Bill 136 narrowed who was eligible for a section 667.5, subdivision (b) prison prior enhancement. This change rendered many individuals ineligible for the enhancement, including defendant, who served eight prior prison sentences for first degree burglary (§ 459), possession of stolen property (§ 496) and auto theft (Veh. Code, § 10851), auto theft and evading (Veh. Code, §§ 10851, 2800.2), possession of a firearm by a felon (former § 12021, subd. (a)(1)), evading (Veh. Code, § 2800.2), possession of stolen property (§ 496), possession of a controlled substance with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)), and possession of a controlled substance with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)). There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we find that Estrada's inference of retroactive application applies. (Accord, People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate Bill 136 applies retroactively to cases not yet final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].) Accordingly, we will modify the judgment to strike defendant's eight one-year prison prior enhancements.
DISPOSITION
We modify the judgment to strike defendant's eight one-year prison prior enhancements. The judgment as modified is otherwise affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
/s/_________
HULL, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
DUARTE, J.