Opinion
E073086
02-19-2021
THE PEOPLE, Plaintiff and Respondent, v. LILLIE MARIE GILBERT, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, David Delgado-Rucci and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1701752) OPINION APPEAL from the Superior Court of Riverside County. Bambi J. Moyer, Judge. Affirmed in part, reversed in part with directions. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, David Delgado-Rucci and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Lillie Marie Gilbert of second degree murder, driving under the influence (DUI) causing great bodily injury, and related offenses. The trial court sentenced Gilbert to 15 years to life plus 13 years.
Gilbert argues that (1) the trial court abused its discretion and violated her due process rights by admitting evidence of prior offenses, (2) the court abused its discretion and violated her due process rights by admitting certain hearsay statements, (3) the prosecutor committed misconduct during closing argument by mischaracterizing the standard of proof, (4) Gilbert's trial counsel provided ineffective assistance by allowing Gilbert to admit to certain prior felony allegations that should have been reduced to misdemeanors, (5) her six one-year sentence enhancements under Penal Code section 667.5, subdivision (b) (subsequent statutory citations are to this code) should be stricken, and (6) the trial court abused its discretion by determining Gilbert had the ability to pay various fines and fees. We agree that the enhancements under section 667.5 should be stricken, but we otherwise affirm.
Gilbert also filed a petition for writ of habeas corpus raising the ineffective assistance of counsel claim. We deny the petition by separate order.
BACKGROUND
At approximately 6:48 p.m. on May 16, 2017, Daniel G. and his fiancée, Lindsey R., were using the crosswalk to cross the street at the intersection of Kitching Street and Brodiaea Avenue in Moreno Valley when Gilbert, driving a pickup truck, ran the stop sign on Kitching Street and hit them both. Lindsey died within seconds from multiple blunt impact injuries sustained in the collision. Daniel suffered numerous serious injuries, requiring surgery on his hip and dislocated shoulder and over 30 sutures in his forehead, as well as causing permanent damage to his shoulder and permanent nerve damage to his left thigh.
We refer to the victims and witnesses by their first names and last initials to protect their privacy. (Cal. Rules of Court, rule 8.90(b).) No disrespect is intended.
Krystal R. testified that around the time of the collision she left her home on Chara Street in Moreno Valley to pick up some food. She saw Gilbert driving fast and erratically, turning onto Chara Street, driving up onto the curb, and then continuing on toward Krystal's house. Krystal immediately called her husband to check on her children, who were riding their bikes outside at the time. When Gilbert's truck was close to Krystal, Krystal could hear Gilbert and her passenger screaming at each other, but she could not hear what they were saying. But when Krystal returned home about 10 to 15 minutes later, her husband and her sister (who also lives with Krystal) told her that they heard Gilbert screaming that she was afraid she was going to jail.
Sheriff's deputies found Gilbert in her truck about one hour and 20 minutes after the collision and administered field sobriety tests. Gilbert asked why they were administering the tests, saying "You know I'm high." She further stated she did not want to do the tests and the deputies should "just write it down, I'm high." Gilbert's blood was drawn just over three hours after the collision. When her blood was being drawn, she repeated her prior admission, "I said I was under the influence." The blood sample tested positive for methamphetamine at the level of 577 nanograms per milliliter.
A sheriff's deputy interviewed Gilbert about 15 minutes after the blood draw. Gilbert initially said that she hit "something" but then "changed her statement, saying, I hit somebody." After she was informed that one of the victims had died, Gilbert exclaimed, "'Oh, my God, I'm in so much trouble. I didn't mean to do this.'" Gilbert admitted that she has been using methamphetamine for approximately 40 years, is a daily user, had smoked methamphetamine at around 2:00 p.m. or 3:00 p.m. that day, was aware that it was dangerous to drive under the influence, and knew the consequences of driving under the influence. Gilbert's driver's license had expired in 1994.
A search of Gilbert's truck revealed a baggie containing approximately six grams of methamphetamine, as well as two glass pipes. Inspection of the truck also revealed damage consistent with a vehicle-pedestrian collision, and a mechanical inspection of the truck found nothing that would have contributed to causing the collision.
Gilbert was charged with murder (§ 187; count 1), DUI causing great bodily injury (Veh. Code, § 23153, subd. (f); count 2), hit and run causing injury or death (Veh. Code, § 20001, subd. (a); count 3), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 4), and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a); count 5). The prosecution further alleged as to count 2 that Gilbert personally inflicted great bodily injury upon Daniel within the meaning of sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8).
Before trial, the prosecution moved to admit evidence of 12 prior incidents of Gilbert's involvement with methamphetamine, from 1993 through 2012. In two of those prior incidents, Gilbert received and signed advisements under People v. Watson (1981) 30 Cal.3d 290 (Watson), which stated the following: "Being under the influence of alcohol or drugs or both impairs your ability to safely operate a motor vehicle. It is extremely dangerous to human life to drive while under the influence. If I drive while under the influence and someone is killed, I can be charged with murder." The court excluded the five oldest incidents because they were too remote, and it excluded two other incidents because they were merely arrests and would thus require "a mini trial." The court granted the request to admit evidence concerning the remaining five incidents, including the two Watson advisements.
On the basis of that ruling, at trial the court admitted the following evidence of the prior incidents: On December 8, 2003, Gilbert pled guilty to possession of methamphetamine. In June 2005, Gilbert was arrested for being under the influence of methamphetamine, and the arresting officer was of the opinion that Gilbert appeared at that time to be a chronic methamphetamine user. On June 27, 2006, Gilbert signed a plea form containing a Watson advisement, which she initialed. On June 5, 2012, Gilbert pled guilty to being under the influence of a controlled substance. On July 29, 2009, Gilbert pled guilty to being under the influence of a controlled substance, and she initialed the Watson advisement on the plea form that she signed. The Watson advisements were not given in DUI cases, and Gilbert had no prior DUI convictions.
Just before the prosecution introduced the evidence of the prior incidents, the court instructed the jurors that they "may, but are not required to, consider that evidence for the limited purpose of deciding whether the defendant knew of methamphetamine, the effects of methamphetamine on her body when she allegedly acted in this case. You are not to consider the evidence for any other purpose. Do not conclude from this evidence that the defendant had a bad character or is disposed to commit a crime." Later, just before the prosecution was going to introduce the Watson advisements, the court instructed the jury as follows: "Evidence will be presented that the defendant may have been provided with certain written advisements set forth in the exhibits that you will receive. The evidence is offered for the limited purpose of showing a certain state of mind. You should consider the evidence for that purpose and not for any other purpose. You may give the evidence whatever weight, if any, you think it may be entitled. You are instructed not to speculate as to the reasons why the advisements may have been given nor the circumstances underlying the advisements if those circumstances are not established by the evidence in this case."
In closing argument, defense counsel conceded Gilbert's guilt on all charges except murder. On the murder charge, counsel conceded all of the elements except malice.
DISCUSSION
I. Admission of Evidence of Prior Acts
Gilbert argues that the trial court prejudicially abused its discretion and violated her due process rights by admitting evidence of her prior acts. We conclude that the court did not err by admitting the two Watson advisements and that any error in admitting the other evidence was harmless under any standard.
Gilbert's due process argument consists entirely of the assertion that the erroneous admission of the prior acts evidence "violated [Gilbert]'s federal due process rights" and hence should be reviewed for prejudice under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
Subdivision (a) of Evidence Code section 1101 prohibits admission of character or propensity evidence, but subdivision (b) of the same statute creates an exception for any "evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact[, ]such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." In addition, Evidence Code section 352 authorizes the trial court to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt." (People v. Crew (2003) 31 Cal.4th 822, 842.) We review the trial court's rulings on the admission or exclusion of evidence under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328 (Foster).)
Gilbert argues that because the Watson advisements were given in non-DUI cases, the prior cases were too dissimilar from the present case for the evidence to be admissible under Evidence Code section 1101, subdivision (b). She further argues that the Watson advisements were inadmissible because they were merely some of "the multitude of boilerplate advisements that she initialed when she entered to a plea agreement in a non-DUI plea case."
We disagree. The Supreme Court has explained that "'[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.'" (Foster, supra, 50 Cal.4th at p. 1328.) Thus, because the Watson advisements were introduced to prove intent, no high degree of similarity was required. Here the prosecution introduced only the Watson advisements themselves and testimony that, in connection with one of those advisements, Gilbert pled guilty to being under the influence of a controlled substance. Being under the influence of a controlled substance is sufficiently similar to DUI to be probative of intent, because it tends to show that Gilbert knew of methamphetamine and its effects on her body. The trial court instructed the jury that it could consider the evidence only as to those issues. The fact that the prior incidents did not involve driving does not show that the trial court abused its discretion. Moreover, the Watson advisements themselves were highly probative of Gilbert's state of mind regardless of whether they were given in connection with DUIs or similar crimes. The fact that Gilbert twice initialed Watson advisements informing her that DUI is extremely dangerous to human life is highly probative of the necessary state of mind for the murder charge, namely, that she acted with implied malice when she drove under the influence on May 16, 2017. The probative value of the advisements remains high regardless of whether they were boilerplate advisements and were accompanied by other boilerplate advisements. We see no basis for excluding the evidence under Evidence Code section 1101.
For similar reasons, we reject Gilbert's argument that the Watson advisements should have been excluded under Evidence Code section 352. As already explained, we disagree with Gilbert's contention that the Watson advisements have "minimal probative value." On the contrary, they were highly probative concerning the only contested issue in the case, namely, Gilbert's state of mind. We further disagree with the contention that the Watson advisements were "extremely prejudicial." Given that when apprehended Gilbert admitted that she was "high," that she had been using methamphetamine for 40 years, that she was a daily user, and that she had used that afternoon, as well as the blood test that was positive for methamphetamine, the Watson advisements and the conviction accompanying one of them (for being under the influence of a controlled substance) added nothing of significance that might bias the jury against her. Given the strong probative value of the Watson advisements and their negligible prejudicial effect, the trial court did not abuse its discretion by declining to exclude them under Evidence Code section 352.
As for the evidence of the other three prior incidents, we need not decide whether the evidence was erroneously admitted, because any error was harmless under any standard. (People v. Thomas (2011) 52 Cal.4th 336, 356, fn. 20 [applying the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836 to rulings under Evidence Code section 1101]; Chapman, supra, 386 U.S. at p. 24 [federal constitutional error is reversible unless harmless beyond a reasonable doubt].) Again, every fact in the case other than Gilbert's state of mind was uncontested: The collision was seen by multiple witnesses, Gilbert admitted to law enforcement that she "hit somebody" and was "high," and her blood sample drawn hours after the collision was still positive for methamphetamine, which she admitted having used that afternoon. In addition, Gilbert admitted to law enforcement that she had been using methamphetamine for 40 years and was a daily user. Defense counsel conceded every charge but murder and every element of murder but malice. As for the one contested issue, the two Watson advisements constituted overwhelming evidence that Gilbert acted with malice when she drove under the influence on May 16, 2017. Given all of that evidence, we are persuaded beyond a reasonable doubt that Gilbert would not have obtained a better result if the trial court had excluded the evidence that she pled guilty to possession of methamphetamine in 2003, was arrested for being under the influence of a controlled substance in 2005, and pled guilty to possession of a controlled substance in 2013.
For all of these reasons, we reject Gilbert's arguments concerning the admission of evidence of her prior acts.
II. Admission of Hearsay
Gilbert argues that the trial court prejudicially abused its discretion and violated her due process rights by allowing Krystal to testify, over Gilbert's objection, that Krystal's husband and sister "heard appellant screaming out that she was 'going to jail' as she sped down their street." Assuming for the sake of argument that the evidence was erroneously admitted, the error was harmless under any standard. First, as we have already explained, the only contested issue was malice, and there was overwhelming evidence of malice, namely, the two Watson advisements and Gilbert's statements to law enforcement, after she was apprehended, that she was aware that it was dangerous to drive under the influence and knew the consequences of driving under the influence. Second, Gilbert also said in her interview with law enforcement, "'Oh, my God, I'm in so much trouble.'" The meaning of that statement, given the context in which it was uttered, is very similar to the challenged statement that she was "going to jail." For all of these reasons, we believe the record confirms beyond a reasonable doubt that Gilbert would not have obtained a more favorable result if Krystal's testimony concerning her husband's and sister's statements had been excluded. (Chapman, supra, 386 U.S. at p. 24.)
Again, Gilbert's due process argument consists entirely of the assertion that the admission of the evidence violated her due process rights and hence should be evaluated for prejudice under Chapman, supra, 386 U.S. 18.
III. Prosecutorial Misconduct
Gilbert argues that the prosecutor committed misconduct, in violation of her rights to due process and a fair trial under the state and federal constitutions, by mischaracterizing and trivializing the reasonable doubt standard during closing argument. We again find any error harmless under any standard.
The trial court instructed the jury on the presumption of innocence, the burden of proof, and the reasonable doubt standard, which the instructions defined in terms of "an abiding conviction that the charge is true." During closing argument, the prosecutor addressed the reasonable doubt standard, referring to "an abiding conviction" and pointing out that the prosecution was not required to prove the charges "beyond all doubt" or "beyond a shadow of a doubt, beyond all certainty." Defense counsel's closing argument focused on the standard at somewhat greater length, also referring to "an abiding conviction," which counsel explained as "a long-lasting belief that you essentially got it right." Defense counsel further explained that an abiding conviction means that "two months from now, three months from now you think about this case, and you say to yourself, you know what, I got it right." In rebuttal, after first discussing the evidence and defense counsel's argument, the prosecutor briefly returned to the standard of proof. The prosecutor argued that an abiding conviction is not negated "if there was a few more things about this case you wish you knew," and "[i]t's okay if you still have questions and you still wonder about a few things." After asking some rhetorical questions about whether it was reasonable to think that Gilbert "didn't know how dangerous driving under the influence of meth was" and "doesn't have conscious disregard for human life," the prosecutor said the following: "So just because you feel like you want more, it's fine. If you feel like, yeah, she probably did it, and to you that equals an abiding conviction, the case has been proven to you beyond a reasonable doubt. It's a personal choice for each of you to make. It's for you to define. If you define it as probably and that equals an abiding conviction, the case has been proven." That is the portion of the prosecutor's argument to which Gilbert now objects.
Again, we conclude that any error was harmless under any standard. (Chapman, supra, 386 U.S. at p. 24.) Gilbert does not argue that the jury was improperly instructed concerning the reasonable doubt standard, and the court instructed the jurors that "[i]f you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." We must presume that the jury followed the court's instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) The challenged portion of the prosecutor's argument was very brief, and both the prosecutor and defense counsel had previously addressed the standard of proof at greater length and in greater detail, free from any alleged errors. And for reasons we have already explained, the evidence of Gilbert's guilt was overwhelming. Viewing the challenged portion of the prosecutor's argument in the context of the entire record, we are persuaded beyond a reasonable doubt that Gilbert would not have obtained a more favorable result in the absence of the alleged error. IV. Prior Conviction Enhancements and Senate Bill No. 136
For similar reasons, we reject Gilbert's argument that the alleged evidentiary errors and prosecutorial misconduct were cumulatively prejudicial. Again, given that the facts other than Gilbert's state of mind were uncontested, and as to her state of mind the Watson advisements (which were properly admitted) and her own admissions to law enforcement overwhelmingly established that she acted with malice, we are convinced beyond a reasonable doubt that she would not have obtained a more favorable result in the absence of the alleged evidentiary errors and prosecutorial misconduct, combined.
Gilbert argues that her six one-year sentence enhancements under section 667.5, subdivision (b), must be stricken under Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended subdivision (b) of section 667.5 to limit such enhancements to prior convictions for sexually violent offenses. The People concede the point, and we agree. This court has previously held that the amendments enacted by Senate Bill No. 136 apply retroactively to cases that were not yet final as of the amendments' effective date. (People v. Chubbuck (2019) 43 Cal.App.5th 1, 13-14.) None of Gilbert's prior convictions alleged under section 667.5, subdivision (b), was for a sexually violent offense. We accordingly strike the six one-year enhancements.
V. Ineffective Assistance of Counsel
Gilbert argues that she received ineffective assistance of counsel because (1) her trial counsel allowed her to admit to three prior conviction allegations under section 667.5, subdivision (b), that were eligible for reduction to misdemeanors under Proposition 47, but (2) her murder conviction now makes her ineligible for that relief (§ 1170.18, subd. (i)). She argues that counsel's error caused her prejudice by adding the three one-year enhancements to her sentence. And she claims that the issue is not rendered moot by the striking of the enhancements under Senate Bill No. 136, because the existence of the felony convictions could adversely affect her when she is considered for parole and may have other "'disadvantageous collateral consequences.' (People v. DeLong (2002) 101 Cal.App.4th 482, 487-492.)" The People argue that the claim of ineffective assistance of counsel is moot and that Gilbert cannot show prejudice. We agree with the People that, given that all of the one-year enhancements are being stricken because of Senate Bill No. 136, Gilbert cannot establish prejudice, so her ineffective assistance claim fails.
In order to prevail on her claim of ineffective assistance of counsel, Gilbert must show "that counsel's representation fell below an objective standard of reasonableness" and there is a reasonable probability that she would have achieved a more favorable outcome in the absence of counsel's allegedly deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).) "With respect to prejudice, a challenger must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.] It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' [Citation.] Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" (Harrington v. Richter (2011) 562 U.S. 86, 104.)
Defense counsel's failure to seek to reduce three of the felony priors to misdemeanors had no effect on the outcome in this case, because all of the prior felony enhancements under subdivision (b) of section 667.5 are being stricken as a result of Senate Bill No. 136. Thus, Gilbert's showing of prejudice rests entirely on her claims that the felony convictions might adversely affect her when she is considered for parole and might have other unspecified collateral consequences. Both of those claims are too speculative to show prejudice. (Strickland, supra, 466 U.S. at p. 693 ["It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding"].) It is true that a panel evaluating the suitability for parole of a defendant convicted of murder is required to consider the defendant's "past criminal history." (Cal. Code Regs., tit. 15, § 2402, subd. (b).) But the regulations more specifically provide that a "[p]revious [r]ecord of [v]iolence" tends to show unsuitability (Cal. Code Regs., tit. 15, § 2402, subd. (c)(2)) and the absence of "any significant history of violent crime" tends to show suitability (Cal. Code Regs., tit. 15, § 2402, subd. (d)(6)). By those standards, the prior convictions at issue (two for possession of a controlled substance and one for possession of a bad check) should not have a significant impact, if any, on Gilbert's suitability for parole, regardless of whether they are classified as felonies or misdemeanors. And Gilbert's argument based on other unspecified collateral consequences is inherently speculative—it is impossible for us to evaluate the likelihood or severity of those consequences.
For all of the foregoing reasons, we conclude that Gilbert has not shown that her counsel's allegedly deficient performance prejudiced her under Strickland, supra, 466 U.S. 668. We therefore must reject her ineffective assistance of counsel claim.
The sole argument in Gilbert's petition for writ of habeas corpus is her ineffective assistance of counsel claim, based on counsel's having allowed her to admit to the three prior felony allegations that could have been (but no longer can be) reduced to misdemeanors. For the reasons just given, we conclude that the petition does not state a prima facie case for relief, and we accordingly deny it by separate order. --------
VI. Fines and Fees
At sentencing, the trial court imposed the minimum restitution fine of $300 (§ 1202.4), a $200 court operations assessment fee (§ 1465.8, subd. (a)(1) [$40 per conviction]), and a $150 criminal conviction assessment fee (Gov. Code, § 70373, subd. (a)(1) [$30 per conviction]). Defense counsel argued, "In regards to any fines and fees that you can stay or strike pursuant to [People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)], it would be our hope that you could do that. She was indigent. She has no money. So anything that can be suspended or stayed pursuant to that case we'd ask for." The court responded, "All right. Dueñas is an interesting case. It is the only case on record with respect to how to view fines and fees. I did consider Dueñas in reducing down the amount in the probation officer's report to amounts that I think will be able to be paid over the period of incarceration of amounts that she will earn while she is . . . incarcerated. So I do need to indicate for the record that the Court already considered Dueñas in making the determinations that I made previously."
Gilbert argues that the court abused its discretion and violated her due process rights by imposing the $650 in fees and assessments, because she is indigent and cannot pay them. We review the trial court's determination of ability to pay for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 713-714.) We conclude that the trial court did not abuse its discretion here.
Gilbert argues that she has no ability to pay the fines and fees because she "was unemployed, on welfare, homeless, and living out of a truck prior to her incarceration," but she does not deny that the court can also consider potential future prison wages in determining her ability to pay. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones).) She argues, however, that because she suffers from mental and physical ailments that will limit or eliminate her ability to earn prison wages, and because prison wage rates are so low, it will be "impossible for her to pay off the $650 in fines and fees in any reasonable length of time."
The People respond that it was within the permissible discretion of the trial court to rely on the court's own observation of and interaction with Gilbert in the course of the proceedings, and the court expressly noted that it did not see anything supporting Gilbert's reports of mental illness. The People also contend that at the minimum rate of $12 per month, Gilbert will earn $720 in five years. (See Jones, supra, 36 Cal.App.5th at p. 1035.) Given that Gilbert's sentence (after her six one-year enhancements are stricken) is 15 years to life plus seven years, the People conclude that the trial court did not abuse its discretion by determining that Gilbert would be able to pay $650 in fees.
We recognize that paid prison work is not guaranteed (People v. Taylor (2019) 43 Cal.App.5th 390, 402), and it is possible that Gilbert has physical or mental impairments that escaped the trial court's notice and that might limit her ability to work while incarcerated. But on this record we do not see how we can find that the trial court abused its discretion by imposing $650 in fees. The court considered Gilbert's apparent mental condition, the prospect of prison wages, and the requirements of Dueñas, and the court imposed a modest amount of fees, including a minimum restitution fine, even though Gilbert was convicted of murder and two other felonies. Given the length of Gilbert's sentence and the prospect of prison wages, we conclude that Gilbert has failed to show that the court abused its discretion.
DISPOSITION
The six one-year enhancements under section 667.5, subdivision (b), are stricken. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting Gilbert's modified sentence and to forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: MILLER
Acting P. J. CODRINGTON
J.