Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF18706, Juan Ulloa and Jeffrey B. Jones, Judges.
O'ROURKE, J.
A jury convicted David Lopez Estrada of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) as a lesser charge of assault with a deadly weapon on a peace officer (§ 245, subd. (c)). The trial court found true allegations that Estrada had suffered a prior prison term and did not remain free of prison custody for a period of five years after the conclusion of the term. (§ 667.5, subd. (b).) The court sentenced him to a four-year prison term. Estrada contends: (1) there is no substantial evidence to support his conviction for assault with a deadly weapon; (2) the trial court gave defective instructions on the assault charge that lowered the People's burden of proof; (3) the prosecutor engaged in prejudicial misconduct by eliciting inadmissible testimony; (4) the trial court did not fulfill its duty to inquire into his defense counsel's conflict of interest or take appropriate action in view of the conflict; and (5) the court erred in calculating and awarding his custody credit. The People concede the latter point, and we direct the trial court to modify the judgment to award Estrada 336 days of presentence custody credit. As modified, we affirm the judgment.
Unless otherwise indicated, further statutory references are to the Penal Code.
The jury could not reach a verdict on the count 2 charge of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and the parties stipulated to a mistrial on that count.
FACTUAL AND PROCEDURAL BACKGROUND
On September 14, 2006, Imperial County Deputy Sheriff Frank Sanchez was off duty at his parents' house in El Centro when he noticed a person, who he later identified as Estrada, walk across from the back of his parents' yard to the front. Because he was not on duty, Sanchez was in plain clothes without his weapon. The deputy saw Estrada looking into and tugging at a van parked in his parents' driveway and exited the house, calling out to Estrada. Estrada looked at Sanchez and started running. Deputy Sanchez caught up with Estrada and tripped him, climbed on his back and advised him he was a deputy, telling him to stay on the ground. As Estrada struggled to turn over, he took out a "regular butter knife" and what appeared to Sanchez to be a screwdriver or some other tool from his right pants pocket. Estrada began striking the back of Sanchez's elbow with both the tool and knife in his right hand, and tried to get up with his left hand. Deputy Sanchez described Estrada as making a swinging motion with the items in an attempt to stab him. At the time, Sanchez was attempting to restrain Estrada by holding his head to the ground with his forearm. At some point, Deputy Sanchez grabbed the knife and tool from Estrada and threw them away, though Estrada attempted to move toward them. Eventually Deputy Sanchez's father came out and helped hold Estrada to the ground until a police officer arrived.
El Centro Police Officer Antonio Hernandez arrived at the scene to find Deputy Sanchez struggling with Estrada, who the officer knew from prior police contacts. Deputy Sanchez was on top of Estrada and Estrada was face down, struggling to pull away. Officer Hernandez described the knife as having a "curved front end serrated at the front" and "sharp towards the length of the blade."
Deputy Sanchez sustained abrasions on his knees as a result of the struggle, which lasted five or ten minutes. Estrada had the knife with him not more than a minute before Sanchez took it out of his hand. The tool in Estrada's hand turned out to be a pair of pliers.
DISCUSSION
I. Sufficiency of Evidence of Assault with Deadly Weapon
Estrada contends there is insufficient evidence to support the elements of assault with a deadly weapon. Specifically, Estrada argues (1) the butter knife was not a deadly weapon; and (2) his actions, which according to Sanchez's testimony amounted only to an attempt, did not constitute force likely to result in great bodily injury.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence —evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Snow (2003) 30 Cal.4th 43, 66.) We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Stewart, at p. 790.)
The offense of assault with a deadly weapon requires proof that the defendant willfully did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person. (People v. Colantuono (1994) 7 Cal.4th 206, 214-215, 217-218; People v. Williams (2001) 26 Cal.4th 779, 790 (Williams).) In Williams, the court clarified that "a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known." (Id. at p. 788.) On this standard, "mere recklessness" or "criminal negligence" is not sufficient to establish the crime. (Ibid.) "As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar); People v. Page (2004) 123 Cal.App.4th 1466, 1470.) In People v. Simons (1996) 42 Cal.App.4th 1100, the defendant held several armed police officers at bay with a screwdriver, an object the court described as "not an inherently deadly weapon." (Id. at p. 1107.) Although instructed to drop the tool, the defendant flailed it about and urged the officers to shoot him. On these facts, the court found for purposes of the crime of exhibiting a deadly weapon to prevent arrest (§ 417.8), "[t]he evidence clearly demonstrated that the screwdriver was capable of being used as a deadly weapon and that defendant intended to use it as such if the circumstances required." (Ibid; see also People v. Page, at p. 1471.)
"Objects which are not inherently dangerous but which have been found to be a deadly weapon include 'a pillow . . .; an automobile . . .; a large rock . . .; a razor blade . . .; [and] a fingernail file.' [ Citation.] Even an apple may constitute a deadly weapon if it contains a foreign object which is likely to produce great bodily injury when the apple is eaten." (People v. Montes (1999) 74 Cal.App.4th 1050, 1054.) Stationary objects such as plate glass windows, brick walls or concrete sidewalks are capable of being used as dangerous weapons even where the defendant does not have physical control or possession of the object. (People v. Russell (2005) 129 Cal.App.4th 776, 784-785.)
The butter knife possessed by Estrada, having a curved and bent tip, was not an inherently deadly object. Accordingly, it was for the jury to decide, based on the nature of the object, the manner in which it was used, and other facts relevant to the issue, whether he used the butter knife as a deadly weapon. The record shows Estrada used the knife in an aggressive manner, stabbing at Deputy Sanchez with his free hand while they struggled. Because Estrada was in a position to strike Deputy Sanchez's elbow with the knife and was struggling to get up, he was in a position to seriously injure the deputy; the knife would have resulted in "significant or substantial" injury had it made contact with Deputy Sanchez's neck, eye or ear. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066 [addressing injury requirement for crime of assault by means of force likely to produce great bodily injury; such injury was established where defendant pinched both sides of victim's mouth, held her jaw tightly, and shoved his whole hand down her throat so she would not scream].) It is irrelevant that Deputy Sanchez did not actually suffer serious injuries; the statute "prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury." (Armstrong, at p. 1065.) The jury could reasonably find on this evidence that Estrada used the knife willfully or purposefully, and in a manner capable of and likely to produce great bodily injury. (Colantuono, supra, 7 Cal.4th at pp. 214-215.) The evidence constitutes substantial evidence for the jury to conclude the butter knife was a deadly weapon.
The question becomes whether what Estrada did with the butter knife constituted an assault. Estrada maintains Deputy Sanchez's testimony shows only that he (Estrada) attempted to assault the deputy or attempted an attempted battery, which is not a criminal offense. We disagree. An assault is statutorily defined as " 'an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery. [Citations.] Accordingly the intent for an assault with a deadly weapon is the intent to attempt to commit a battery, a battery being "any willful and unlawful use of force or violence upon the person of another." ' " (Colantuono, supra, 7 Cal.4th at p. 214;see also People v. Williams (2001) 26 Cal.4th 779, 788, 790 ["assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another"; the actor need not be subjectively aware of the risk that a battery might occur]; People v. Page, supra, 123 Cal.App.4th at p. 1472.) Colantuono explained that " '[h]olding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault. So any other similar act, accompanied by such circumstances as to denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault.' " (Colantuono, at p. 219.)
Here, Deputy Sanchez testified that after tripping Estrada, he was trying to keep him on the ground so he would not have the option of using weapons; that while Estrada's shoulder blade was on the ground he was nevertheless able to reach up and hit towards the deputy's arm in a striking or stabbing motion, making contact with it. Deputy Sanchez testified that he did not have control over Estrada at the time his father came up to assist him. Because Estrada had the present ability to apply physical force to Deputy Sanchez and in fact made contact with him with the knife (as well as the pliers), the evidence supports Estrada's conviction for assault with a deadly weapon. We reject his challenge to the sufficiency of the evidence.
II. Instructional Error
The trial court instructed the jury with CALCRIM No. 875, providing that to prove the lesser included offense of assault with a deadly weapon, the People had to prove (1) "The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person"; (2) "The defendant did that act willfully"; (3) "When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone"; (4) "when the defendant acted he had the present ability to apply force likely to produce great bodily injury with a deadly weapon to a person"; and (5) "the defendant did not act in self-defense." The court further instructed: "[S]omeone commits an act willfully when he or she does it willingly or on purpose. It does not require that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. . . . [T]he touching can be done indirectly by causing an object or someone else to touch the other person. The People are not required to prove that the defendant actually touched someone. The People are only required to prove a defendant actually intended to use force – to use force against someone when he acted. [¶] No one needs to actually have been injured by the defendant's act, but if someone was injured you may consider that fact along with all the other evidence in deciding whether the defendant committed an assault and, if so, what kind of assault it was."
Estrada criticizes these instructions on grounds they permitted the jury to convict him "without proof he intended to even touch Deputy Sanchez" and allowed a conviction "without proof of an 'attempt . . . to commit a violent injury' on the deputy" but instead required only an action that would probably result in some slight touching. He maintains that by omitting essential elements of even a simple assault, the instruction lowered the prosecutor's burden of proof. Estrada further contends the jury instructions on self-defense were ambiguous and confusing in part because the instructions indicated the defense applied only to the charge of assault with deadly weapon on a peace officer. Estrada argues the cumulative instructional errors resulted in a miscarriage of justice, requiring reversal of his conviction.
We assume Estrada's contentions pertain to the trial court's sua sponte duty to instruct correctly on the basic principles of the law, avoiding forfeiture of these arguments for counsel's failure to object to the instructions or request a clarifying instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 570; People v. Frazer (2003) 106 Cal.App.4th 1105, 1116, fn. 5.) However, we reject his arguments.
First, the court did not misinstruct the jury by giving CALCRIM No. 875. Being a general intent crime, "assault requires only that the perpetrator act 'willfully,' i.e., with a 'purpose or willingness to commit the act' without 'any intent to . . . injure another . . . ." (People v. Flores (2007) 157 Cal.App.4th 216, 220, citing Pen. Code, § 7, subd. 1; People v. Williams, supra, 26 Cal.4th at p. 782.) It was therefore appropriate to advise the jury that the prosecution did not have to prove Estrada actually touched Deputy Sanchez. It is only necessary that " 'a defendant . . . be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.' " (Flores, at p. 221, quoting Williams, at p. 788.) Because the statute focuses on use of an instrument, " 'whether the victim in fact suffers any harm is immaterial.' " (Flores, at p. 221, quoting Aguilar, supra, 16 Cal.4th at p. 1028.) And, contrary to Estrada's contention, the court in fact instructed the jury that the People were required to prove Estrada actually intended to use force when he acted, by omitting the word "not" within CALCRIM No. 875. The instruction did not omit any essential elements of the assault crime, but arguably placed an additional burden on the People in their proof, which the prosecutor did not challenge in her closing arguments.
As for the question of self-defense, Estrada concedes that CALCRIM No. 875 instructed the jury that the People were required to prove "[t]he defendant did not act in self-defense." He maintains, however, that the later, expanded, instructions on self-defense indicated that the defense was limited to the charge of assault with a deadly weapon on a peace officer. We disagree with the premise that CALCRIM No. 3470, the instruction relating to use of lawful self-defense in connection with the greater offense of assault with a deadly weapon on a peace officer, somehow told the jury that the People were not required to prove the absence of lawful self defense for the lesser offense, when CALCRIM No. 875 expressly instructed to the contrary. Thus, contrary to Estrada's assertion otherwise, the instructions were not ambiguous.
Even if we were to assume the instructions suffered from ambiguity, there is no indication the jury misunderstood or misapplied them in the manner Estrada urges. He points out the jury acquitted him of the greater offense of assault with a deadly weapon on a peace officer because it was accompanied by CALCRIM No. 3470, but convicted him of the lesser offense of assault with a deadly weapon "without" a similar instruction. But we cannot attribute this outcome to the jury instructions as to self defense. "In determining whether there was prejudice [from instructional error], the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) Here, defense counsel's theory in his closing argument was that Deputy Sanchez was not acting in the capacity as a peace officer, both because the deputy could not have reasonably believed Estrada committed a crime at the time he spotted Estrada outside his parent's house, and because Deputy Sanchez did not immediately identify himself as a deputy by asking Estrada to stop but only did so after tackling him to the ground. Defense counsel argued the deputy was acting as a protective son, not as a peace officer. Counsel did not focus at all on whether or not Estrada acted in lawful self-defense. Thus even if the instructions were somehow ambiguous on the point, the record does not permit us to conclude Estrada was actually prejudiced by the instructions.
III. Prosecutorial Misconduct
Estrada contends the prosecutor committed prejudicial misconduct by eliciting inadmissible legal conclusions and prejudicial testimony from Officer Hernandez. He maintains the prosecutor failed in her duty to control his testimony and the trial court did not act to ensure a fair trial when the officer made his assertedly prejudicial statements. We reject the contention.
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44; see also People v. Hinton (2006) 37 Cal.4th 839, 862-863; People v. Harrison (2005) 35 Cal.4th 208, 242.) A prosecutor commits misconduct when he or she intentionally elicits inadmissible evidence or testimony. (People v. Chatman (2006) 38 Cal.4th 344, 379-380.)
Here, Estrada's claims of misconduct relate to (1) Officer Hernandez's testimony about prior police contacts with and arrests of Estrada and (2) the officer's volunteered "legal conclusions" as to the deadly nature of the knife. Specifically, Officer Hernandez testified that he knew Estrada because he had "prior police contacts" with him and had obtained his date of birth in part because "[h]e's been arrested by our department." When asked whether Estrada's injuries from the incident were excessive, Officer Hernandez testified he did not believe so, "considering [Estrada] at the time was attempting – or was in possession of a lethal weapon, deadly weapon." The officer testified similarly on cross-examination in response to defense counsel's question, stating, when asked about Estrada injuries, "Under the circumstances, when he [Estrada] had a deadly weapon, I don't see anything wrong with that, no. Because I believe the deputy himself was probably trying to – feared for his own life."
Estrada's challenge to Officer Hernandez's "prior police contacts" testimony is forfeited on appeal for his counsel's failure to timely object on specific grounds of prosecutor misconduct. " 'In the absence of a timely objection the [prosecutorial misconduct] claim is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct.' " (People v. Hinton, supra, 37 Cal.4th at p. 863; People v. Leonard (2007) 40 Cal.4th 1370, 1405; People v. Ward (2005) 36 Cal.4th 186, 215.) Estrada has not explained how an admonition would not have cured the harm purportedly caused by this testimony. We reach the same conclusion with respect to Officer Hernandez's conclusions about the deadly nature of the weapon, which were made without objection by defense counsel.
Even had Estrada preserved these issues, we would reject his assertion of misconduct. The prosecutor's inquiry as to how Officer Hernandez knew Estrada was innocuous, and even if it were not, the officer's response about having "prior police contacts" was fleeting and too vague to cause prejudice. The prosecutor's questions about Estrada's injuries were not inherently likely to elicit the conclusions given by Officer Hernandez about the nature of the weapon, and there is nothing indicating the prosecutor asked the question with the intent to elicit that reference or that the prosecutor had any reason to believe Officer Hernandez would testify in such a way. On this record, we cannot say the prosecutor failed in her duty to guard against impermissible references in his testimony. (Accord, People v. Leonard, supra, 40 Cal.4th at pp. 1405-1406.) For the same reason, the record does not support Estrada's characterization of the prosecutor's questions as a deliberate or repeated attempt to elicit improper testimony.
As for Officer Hernandez's testimony that Estrada had been arrested by his department, the trial court sustained defense counsel's objection and instructed the jury to disregard his answer. The jury is presumed to follow the court's admonition absent evidence to the contrary. (People v. Smithey (1999) 20 Cal.4th 936, 961.) For that reason, Estrada cannot establish prejudice. (Smithey, at p. 961.) Nor has Estrada pointed to any indication in the record that the jury relied or placed any weight on the statement or any of the other challenged testimony; he maintains only that given the weakness of the evidence against him, his conviction was "probably" tainted by the foregoing testimony. This is insufficient to establish prejudice. "A defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.) Having rejected Estrada's sufficiency of the evidence arguments, we cannot agree that the case was close, or that the jury would have been convinced to acquit Estrada of the assault charge absent Officer Hernandez's testimony.
IV. Conflict of Interest
Estrada contends that the trial court failed to take appropriate action when it learned in the midst of the People's case in chief that his defense counsel had acted as the prosecutor on one of Estrada's prior convictions. Estrada maintains that the record does not show he was informed of the basis of his counsel's conflict, nor is there any indication he made a knowing and intelligent waiver of his right to conflict-free counsel. He maintains he was denied his state and federal constitutional rights to assistance of conflict-free counsel.
There is no question that the right to effective representation by counsel includes the right to representation by conflict-free counsel. (People v. Rundle (2008) 43 Cal.4th 76, 168; People v. McDermott (2002) 28 Cal.4th 946, 990.) And we agree that when a court knows or reasonably should know that a conflict exists, it has a duty to inquire into the nature of the conflict, even in the absence of an objection by the defendant. (Mickens v. Taylor (2002) 535 U.S. 162, 166-168; People v. Cornwell (2005) 37 Cal.4th 50, 75-76.) However, in order to obtain a reversal in this context, the defendant must show "(1) deficient performance by counsel, and (2) ' "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' " (Rundle, supra, 43 Cal.4th at p. 169, citing Mikens, supra, 535 U.S. at p. 166.) As for the first prong, a defendant must show that counsel labored under an actual conflict of interest, "that is, a 'conflict that affected counsel's performance – as opposed to a mere theoretical division of loyalties.' " (Rundle, at p. 169; Mikens, 535 U.S. at p. 171; Cornwell, at p. 76.)
We conclude Estrada has not demonstrated an actual conflict of interest adversely affected his counsel's performance. It is not clear on what theory Estrada relies in arguing his counsel suffered from an actual conflict of interest. He points to circumstances raising actual conflicts where defense counsel "currently has or formerly had an attorney-client relationship with a person who is a witness in that matter." But even in those circumstances, "when the attorney has not received any pertinent confidential information from the witness, ordinarily there is no actual or potential conflict of interest." (People v. Cornwell, supra, 37 Cal.4th at p. 75; People v. Cox (2003) 30 Cal.4th 916, 950.)
Estrada characterizes his defense counsel's prior involvement as one where he "actually successfully achieved a conviction in a case against appellant," which adversely affected his ability to provide zealous advocacy. The characterization, however, is not supported by the record. The augmented record shows Estrada's defense counsel in the present case appeared as a deputy district attorney on the People's behalf in December 2002 for a probation revocation hearing in which Estrada admitted his violation of the terms and conditions of probation. The court reinstated his probation that day. We fail to see – and Estrada does not explain – how defense counsel's minimal prior involvement in any manner gave rise to some divided loyalty or interest in advocating less aggressively. There is no evidence that defense counsel actually possessed confidential information arising from the prior representation that prevented absolute loyalty to Estrada. Nor do we agree, having reviewed the record, that counsel "pulled punches" in his cross-examination of Deputy Sanchez. In view of his performance, counsel's refusal to speak harshly about the deputy personally is not an indication of less than aggressive advocacy. Indeed, defense counsel succeeded in obtaining a not-guilty verdict on the greater charge of assault with a deadly weapon on a peace officer.
Rather, defense counsel's argument appears to have been an express tactic to persuade the jury that when Deputy Sanchez tackled and detained Estrada, he was not acting in the capacity of a peace officer, but instead as a good son protecting his father's property. In closing argument, defense counsel argued: "[Deputy Sanchez is] a good deputy, and maybe it's the number two thing in his life, but the number one thing in his life is his family." Later, he challenged the deputy's credibility, stating, "I think you have to look at Deputy Sanchez's testimony, and you have to recognize that he's a son and that he's a family man, and that what he's doing is in that context."
V. Conduct Credits
The trial court awarded Estrada 256 days of presentence custody credit, consisting of 223 days of actual custody and 33 days of conduct credit. Estrada contends, and the People concede, that he actually should have been given 224 days of actual custody credit and the trial court erred by limiting his conduct credit to 15 percent under section 2933.1. We agree that because Estrada was not convicted of a violent felony enumerated in section 667.5, subd. (c), his credits should have been calculated pursuant to section 4019, " 'by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody.' " (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.) Estrada is therefore entitled to an additional 112 days conduct credit, for a total award of 336 days of presentence custody credits.
DISPOSITION
The judgment is modified to award Estrada 112 (instead of 33) days of presentence conduct credit, and 224 (instead of 223) days of actual custody credit, increasing the total presentence credit from 256 to 336 days. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: McINTYRE, Acting P. J., AARON, J.