Opinion
A145853
05-18-2017
THE PEOPLE, Plaintiff and Respondent, v. JORDAN CHRISTOPHER HUGHES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR285903)
Appellant Jordan Christopher Hughes was tried before a jury and convicted of one count of attempted murder of a peace officer and three counts of assault with a firearm upon a peace officer, along with allegations that he personally and intentionally discharged a firearm. (Pen. Code, §§ 187, 664, 245, subd. (d)(1), 12022.53, subd. (c).) He contends the trial court abused its discretion when it denied his request for an in camera review of police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We conclude the judgment must be conditionally reversed and the matter remanded for an in camera review. (See People v. Gaines (2009) 46 Cal.4th 172, 180 (Gaines).) In the event the judgment is reinstated following that review, a new sentencing hearing is required due to the trial court's unauthorized stay of two firearm enhancements. (See People v. Oates (2004) 32 Cal.4th 1048, 1063 (Oates).)
Further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
On June 26, 2011, at 10:16 p.m., Officer Neal of the Fairfield Police Department was dispatched to an apartment complex in Fairfield. He was flagged down by Otis Duckett, who was sitting in a van with his daughter Jennifer Duckett. Jennifer was appellant's girlfriend and lived in apartment 17 of the complex. The couple had been involved in a domestic dispute earlier that evening in Vallejo, and Otis had driven Jennifer back to her apartment so she could grab some belongings. Appellant sometimes stayed at Jennifer's apartment and his car was there, and she wanted officers to check the apartment before she went inside. Jennifer had not seen appellant with a gun that day, though she had seen him armed with a gun in the past.
Officer White arrived on the scene and Officer Neal obtained the keys to the apartment from Jennifer. When the two officers entered the apartment they immediately smelled marijuana. Officer Neal repeatedly yelled, "Fairfield Police Department. Anyone inside Apartment 17 make yourself known." He also called appellant by his name, but neither officer heard anything in response or detected any movement. After they had "cleared" the kitchen, bedroom and living room (where Officer Neal noticed some men's clothing piled on the couch), they discovered the bathroom door was locked. Neal advised White they should get more officers, and White remained inside with his gun drawn while Neal went outside to get more information from Jennifer.
Officer Neal asked Jennifer about the marijuana odor, and she told him that while she did not smoke, appellant did. She also told him the clothing on the couch was not there when she left the apartment. Asked about the bathroom door, Jennifer said it had been unlocked when she left and if it was locked then appellant had probably killed himself. She explained that when they had issues, appellant always said he was going to kill himself.
Officer Grimm and Sergeant Oviatt arrived at the complex and joined Officers Neal and White. Officer Neal told the other officers about the possible firearm and suicide and said they "obviously had to open the bathroom door and force entry into the bathroom." He devised a plan in which he would holster his weapon, kick the bathroom door open, and then run down the hallway toward Sergeant Oviatt as Officers Grimm and White entered the bathroom behind him. Sergeant Oviatt would provide cover for all three officers.
Before entering the bathroom, Officer Neal repeatedly shouted, "Jordan, it's the Fairfield Police Department. You need to come out if you're inside the bathroom." When there was no response, Officer Neal kicked the bathroom door open as planned and appellant immediately fired five shots from within. Officer Neal fell down and then pushed Officers White and Grimm toward the bedroom at their end of the hall while Sergeant Oviatt fired shots into the bathroom, hitting appellant. The bathroom door closed and a status check revealed that none of the four officers had been injured. Approximately ten minutes elapsed between Officer Neal's arrival on the scene and the time that shots were fired.
A police perimeter had been established outside, and one of those officers notified Sergeant Oviatt that appellant was texting family members. Sergeant Oviatt yelled, "Jordan, I know you're in there. I know that you're text messaging people." Appellant called out that he was injured and Sergeant Oviatt offered to provide him with medical attention. After 45 minutes to an hour, appellant opened the door and crawled out of the bathroom, where he was arrested and transported to the hospital. A revolver was found on the bathroom floor.
An amended information charged appellant with three counts of attempted murder against Officers Neal, White and Grimm, along with allegations that the crimes were premeditated and were committed against peace officers engaged in the performance of their duties. (See §§ 664, subds. (e), (f), 187, subd. (a); Counts 1-3.) Appellant was also charged with four counts of assault with a firearm upon a peace officer, naming as victims Officers Neal, White and Grimm and Sergeant Oviatt. (See § 245, subd. (d)(1); Counts 4-7.) As to each count, it was alleged appellant had personally and intentionally discharged a firearm under section 12022.53, subdivision (c).
The case proceeded to a jury trial at which the prosecution presented evidence of the facts previously described and the defense asserted (1) the officers were not acting in the lawful performance of their duties when they kicked in the bathroom door; and (2) appellant fired his gun in self-defense not realizing the people in the apartment were police officers. Appellant testified that he had been inside the bathroom because he was high and was thinking about killing himself. He had the gun because he had been robbed by a friend the previous December and was fearful for his life at all times. Appellant heard people inside the apartment but did not hear them say they were police. He fired his gun blindly when the door was kicked in to frighten the people who were in the apartment, but he didn't want to kill anyone. Appellant realized the people were police officers when he was back inside the bathroom and heard someone call for a riot shield.
The defense called Roger Clark, a retired Los Angeles County Sheriff's deputy and police procedures consultant, to testify about the appropriate way to deal with mentally ill or suicidal individuals. He was posed a hypothetical question based on the facts of this case and was critical of the officers' decision to kick down the door. Clark explained that when a subject is barricaded in a room where he can't escape, the tactic should be to set up a line of communication and attempt to get him to come out on his own. Entering the room by force was too risky for the officers.
The jury convicted appellant of the attempted murder of Officer Neal (count 1) and found true the allegation that the crime was committed against a peace officer in the performance of his duties. It found untrue the allegation that the attempted murder of Officer Neal was premeditated, and acquitted appellant of the attempted murder counts naming Officers White and Grimm as victims (counts 2-3). The jury also convicted appellant of three counts of assault with a firearm upon a peace officer as to Officers Neal, White and Grimm (counts 4-6), but acquitted him of the assault count against Sergeant Oviatt (count 7). Firearm enhancement allegations under section 12022.53, subdivision (c), were found true as to each count of conviction.
The court imposed a term of life with the possibility of parole on the attempted murder count (count 1) with a 20-year consecutive term for the firearm enhancement attached to that count. (§§ 664, subd. (e), 12022.53, subd. (c).) It stayed under section 654 the sentence on the assault with a firearm count involving Officer Neal, including the 20-year term for the section 12022.53 enhancement attached to that count. The court imposed a consecutive six-year middle term for the assault count involving Officer White (count 5) plus a two-year consecutive term (one-third the middle term) for the assault count involving Officer Grimm (count 6), but stayed the firearm enhancements attached to those counts under section 654. (§§ 245, subd. (d)(1), 1170.1, subd. (a).)
II. DISCUSSION
A. Pitchess Motion
Appellant argues the trial court erred in denying his Pitchess request for an in camera review of police personnel records. We agree in part.
1. General Principles
In Pitchess, supra, 11 Cal.3d 531, our Supreme Court ruled that a criminal defendant may compel the discovery of peace officer personnel files upon a proper showing that information in them is material to the defense. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) The procedures to obtain the records are set forth in the Evidence and Penal Codes. (People v. Mooc (2001) 26 Cal.4th 1216, 1219-1220.) The personnel records of peace officers are confidential and subject to disclosure only through the discovery procedures set forth in Evidence Code sections 1043 and 1046. (§ 832.7.) A peace officer personnel file includes any file maintained under that individual's name which relates to discipline, complaints, or investigations of complaints in which the officer participated. (§ 832.8.)
To obtain discovery of a peace officer personnel file, the defendant must bring a noticed motion supported by a good cause affidavit setting forth (1) the materiality of the request to the pending litigation and (2) a reasonable belief that the agency has the records or information. (Evid. Code, § 1043; Warrick, supra, 35 Cal.4th at p. 1019.) "This two-part showing of good cause is a 'relatively low threshold for discovery.' [Citation.]" (Warrick, at p. 1019.) Despite this low threshold, "a showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Id. at p. 1021.)
Good cause may be established by "a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Warrick, supra, 35 Cal.4th at p. 1025.) "[A] plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at p. 1026.) The information sought must be "requested with adequate specificity to preclude the possibility that defendant is engaging in a 'fishing expedition.' " (Pitchess, supra, 11 Cal.3d at p. 538.)
If good cause is shown, the trial court conducts an in camera examination of the file to determine whether it contains any records relevant to the issues presented in the litigation. (Evid. Code, § 1045; Warrick, supra, 35 Cal.4th at p. 1019.) These procedures balance the peace officer's interest in confidentiality against the defendant's need for disclosure to pursue his or her defense. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86.) The trial court has broad discretion in ruling on whether an in camera hearing is required. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.)
On appeal, we review the trial court's ruling for an abuse of discretion. (People v. Cruz (2008) 44 Cal.4th 636, 670 (Cruz); Pitchess, supra, 11 Cal.3d at p. 535.) "[T]he proper remedy when a trial court has erroneously rejected a showing of good cause for Pitchess discovery and has not reviewed the requested records in camera is not outright reversal, but a conditional reversal with directions to review the requested documents in chambers on remand." (Gaines, supra, 46 Cal.4th p. 180.) If, after reviewing the confidential material in chambers, it is found that the personnel records contain no relevant information, the court is to reinstate the judgment. (Id. at p. 181.) If, however, it is found on remand that discoverable information exists and should have been disclosed, the trial court must order disclosure of that information, allow the defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. (Ibid.)
2. Appellant's Pitchess Motion
Appellant's defense counsel filed a pretrial motion for the discovery of the police personnel records of Officers Neal, White and Grimm and Sergeant Oviatt, seeking "any evidence or complaints of official misconduct, harassment, improper or excessive use of force, conduct unbecoming a police officer, illegal detention/arrests, false statements in reports, false claims of reasonable or probable cause, evidence of racial or class bias, or any other evidence or complaints of dishonesty." The motion was "made on the ground that disclosure of the information requested is necessary to fully cross examine prosecution witnesses and to fully investigate and prepare all defenses, including, but not limited to, [the] Fairfield Police Officers named above did not follow appropriate protocol in this matter, failed to report the fact that they were told by the victim that [appellant] was possibly suicidal, and used excessive force against [appellant] on June 26, 2011 when they kicked in the door of the bathroom where he was located knowing he was possibly suicidal and in possession of a firearm."
Defense counsel submitted a declaration in support of the motion stating in relevant part: "2. [Appellant] has a substantial and well documented history of severe mental illness. [¶] 3. I am informed and believe that the Officers were informed upon their arrival at the scene that [appellant] was a danger to himself and others. [¶] 4. I am informed and believe that the Officers were also informed that [appellant] wanted to kill himself. [¶] 5. I am informed and believe that after the Officers arrived and went into the apartment, they came out and were asked by the victim and her father to please call for a professional psychologist to assist because [appellant] might want to kill himself. [¶] 6. I am informed and believe that when the Officer came out to talk to the victim, he asked what [appellant]'s nationality was and was told that [appellant] is black. [¶] 7. That the officers, when interviewed by other officers, did not disclose that they were told of the above facts. [¶] 8. That [appellant] did not intend to injure anyone and that he did not harbor the specific intent to kill, he was unaware that the Officers were in the official pursuit of their duties. [¶] 9. That it will be our defense at trial that the force used against [appellant] was excessive and unreasonable. [¶] 10. That the Fairfield [P]olice Department did not follow protocol when dealing with a suspect who is known to have threatened committing suicide."
Attached to the motion were reports of police investigators concerning the officer-involved shooting. The reports of the interviews with the officers involved described the events in a manner largely consistent with their testimony at trial. Also attached to the motion were two memos prepared by defense investigator T.J. Hicks concerning his interviews with Jennifer and Otis Duckett in March 2012. According to the first memo, Jennifer Duckett revealed that on a previous occasion appellant had punched her with his fist after becoming jealous of an ex-boyfriend, after which he went inside a bathroom, locked the door, and said he was going to kill himself. According to the second memo, Otis Duckett was critical of police conduct on the day of the shooting: "[A]n officer exited the apartment and approached him and Jennifer. He described the officer as [] a tall white male, possibly William Schaefer. According to Duckett, the above officer indicated that the bathroom door was locked and asked if that was normal.[] Duckett clearly recalls the officer asking what was Jordan Hughes' nationality. He responded, 'Jordan is Black.' [¶] Otis Duckett indicated that during the conversation with the officer he suggested that he call for a professional psychologist to assist. He also mentioned allowing his daughter to talk to Jordan. However, the officer decided to disregard either suggestion. Duckett commented, 'The officer looked like he wanted to kill a Nigger. I begged the officer to get some support.' "
Detective William Schaeffer was involved in the investigation of the officer-involved shooting after the fact, but was not present at the scene. Officer Neal was the officer who returned from inside the house and asked Jennifer Duckett whether it was normal for the bathroom door to be locked.
The city attorney opposed the Pitchess motion, arguing it was overbroad and was not supported by good cause, having failed to present " 'a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.' " The trial court denied the motion, concluding it was "overbroad and not supported by good cause."
3. Analysis
Appellant's Pitchess motion sought the discovery of the officers' personnel records as relevant to appellant's claims that they failed to follow "appropriate protocol," failed to report they had been told appellant was possibly suicidal, and used excessive force in breaking down the door. In light of these allegations, the trial court did not abuse its discretion in denying the motion as overbroad as to most of the categories of evidence requested. The motion sought disclosure of prior complaints of harassment, illegal detentions/arrests, conduct unbecoming a police officer, and false claims of reasonable or probable cause, but made no allegation that any of the officers engaged in comparable misconduct in this case. The motion additionally sought disclosure of prior complaints of false statements in police reports, false claims of reasonable or probable cause, and general dishonesty. But the only allegation concerning the officers' lack of veracity in this case was the claim they did not report appellant was possibly suicidal, an assertion belied by evidence showing that Officer Neal had advised police investigator Carey Blasingame that Jennifer Otis had said if the bathroom door was locked, appellant had probably committed suicide. "[O]nly documentation of past officer misconduct which is similar to the misconduct alleged by defendant in the pending litigation is relevant and therefore subject to discovery." (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021.)
We also find no abuse of discretion in the denial of the motion to the extent it sought to discover complaints of racial or class bias. The only conceivable factual basis for this request was Officer Neal's unremarkable inquiry about appellant's nationality during the course of gathering identifying information about him from Otis and Jennifer Duckett. The defense investigator's memorandum reported that Otis Duckett believed the officer who inquired about appellant's nationality "looked like he wanted to kill" a black person, but this speculative assertion was untethered from any facts suggesting a racial motivation on the part of the officers involved, and it was insufficient to trigger a duty to review the police personnel records for complaints regarding racial or class bias. "Although the accused need not demonstrate the admissibility at trial of all requested items [in a Pitchess motion], his showing must be more than speculative and must indicate that the requested information will facilitate ascertainment of the facts and promote a fair trial." (Reyes v. Municipal Court (1981) 117 Cal.App.3d 771, 775.)
We reach a different result with respect to appellant's request for the discovery of evidence and complaints concerning prior incidents of excessive force. Appellant was charged with several counts of the attempted murder of a peace officer and assault with a firearm upon a peace officer, both of which required the prosecution to prove the officers were engaged in the lawful performance of their duties when appellant fired his weapon. (See Cruz, supra, 44 Cal.4th at p. 673; In re Manuel G. (1997) 16 Cal.4th 805, 815.) The defense position—both at trial and at the time the Pitchess motion was filed—was that the officers were not engaged in the lawful performance of their duties because they used excessive force in breaking down the bathroom door rather than taking more time to verbally persuade a potentially suicidal person to surrender. Evidence of prior complaints regarding excessive force could potentially be used to cross examine the officers and might also be admissible as character evidence. (Pitchess, supra, 11 Cal.3d at p. 537; see People v. Memro (1985) 38 Cal.3d 658, 681, overruled on other grounds in Gaines, supra, 46 Cal.4th at p. 181, fn. 2.)
We acknowledge that in many if not most cases where the courts have permitted discovery of prior complaints of excessive force, there is a more pronounced dispute about the actions of the officer whose records are being sought. (See, e.g., People v. Moreno (2011) 192 Cal.App.4th 692, 701 [prior complaints of excessive force against murder victim, who was a probation officer, would support defense claim that she was the aggressor and impeach witness accounts to the contrary]; Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1048 (Uybungco) [officers reported that defendant resisted arrest, but defendant alleged he did not do so and that reports were false]; Brant v. Superior Court (2003) 108 Cal.App.4th 100, 108 [defendant challenged officers' account of the detention]; Larry E. v. Superior Court (1987) 194 Cal.App.3d 25, 28-33 [minor alleged he did not use force and that officers lied and planted evidence].) Here, the officers did not deny kicking down the door, and although the defense questioned whether appellant heard the officers announce their presence, the issue of excessive force is more about the characterization of police conduct than whether the challenged conduct actually occurred.
That said, good cause under Pitchess requires the defendant to establish "only 'a logical link between the defense proposed and the pending charge' and describe with some specificity 'how the discovery being sought would support such a defense or how it would impeach the officer's version of events.' " (Gaines, supra, 46 Cal.4th at p. 182.) Defense counsel's allegations in support of the request for complaints regarding excessive force satisfied "the ' "relatively low threshold" ' for in camera review, as they depict a scenario 'that might or could have occurred' and are plausible in that they 'present[] an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.' " (Uybungco, supra, 163 Cal.App.4th at pp. 1049-1050.)
Because appellant's challenge to the lawfulness of the officers' conduct in this case pertains to their decision to go forward with a forcible entry rather than to employ other means of persuading him to leave the bathroom, claims of other types of excessive force (unnecessary roughness during an arrest, etc.) may not be relevant to the pending case or subject to discovery. Evidence Code section 1045, subdivision (b)(3), specifically exempts from discovery "[f]acts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit." But while this qualification affects the documents subject to disclosure after an in camera review, it does not obviate the need to conduct such a review in the first place. The case must be remanded for an in camera review of the officers' files for claims of excessive force, and the disclosure of all such claims deemed relevant to appellant's defense.
Although only Officer Neal kicked down the bathroom door, the other officers were aware of and participated in the plan to forcibly enter the bathroom. The Attorney General has not argued that the in camera review, if required, should be limited to Officer Neal's personnel file.
B. Unauthorized Stay of section 12022 .53 Enhancements on Counts 5 and 6
The trial court imposed a sentence of life with the possibility of parole on the attempted murder conviction in count 1 naming Officer Neal as a victim (see § 664, subd. (e)) and additionally imposed a 20-year enhancement for the personal use and discharge of a firearm under section 12022.53, subdivision (c). It imposed consecutive sentences for the assault convictions in counts 5 and 6 naming Officers White and Grimm as victims, but stayed the section 12022.53, subdivision (c), enhancements attached to those counts. With respect to the stayed enhancements, the court explained: "It is 654 in this Court's mind. Clearly, it's impossible to separate out the shots fired in the vicinity of Officers Grimm and White who fortunately were not struck despite how close they were. That was just good luck. But it's the very shots that were in the direction of Officers Grimm and White which were the shots intended to strike Officer Neal, which formed the attempted murder. And the Court has already imposed an additional 20 years on top of the life sentence because of that."
While we have no quarrel with the trial court's assessment of the facts, the stays of the 20-year enhancements on counts 5 and 6 were unauthorized. For one thing, section 654 does not apply to crimes of violence against multiple victims. (People v. Oates, supra, 32 Cal.4th at pp. 1064, 1066 [when defendant convicted of five counts of attempted murder after firing two shots into a group of five people and hitting one of them, § 654 does not preclude imposition of multiple enhancements under § 12022.53, subd. (d)].) For another, section 12022.53 creates "a sentencing scheme unfettered by section 654." (People v. Palacios (2007) 41 Cal.4th 720, 727-728 [three separate enhancements under § 12022.53, subdivision (d), were properly imposed on attempted murder and kidnapping counts, even though they were all based on a single shot at a single victim; § 654 did not apply].) Section 654 thus does not prohibit multiple enhancements under section 12022.53 in cases where it does not also prohibit multiple punishment for the underlying offenses. (People v. Bui (2011) 192 Cal.App.4th 1002, 1014.) Because counts 5 and 6 (unlike count 4) involved different victims than the attempted murder conviction under count 1 and were not themselves subject to section 654, the firearm enhancements accompanying those counts were improperly stayed. (See ibid.)
"It is well settled. . . that the court acts 'in excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) An improper stay of a section 12022.53 enhancement results in an unauthorized sentence that can be corrected whenever it is brought to the reviewing court's attention, even if no objection was made below. (Oates, supra, 32 Cal.4th at pp. 1054, 1068-1069; see Scott, at p. 354, fn. 17; People v. Crooks (1997) 55 Cal.App.4th 797, 811.)
In response to this Court's request for supplemental briefing on this issue, appellant acknowledges the section 654 stays of the firearm enhancements on counts 5 and 6 were unauthorized. He urges us to remand the case for resentencing, while the Attorney General suggests we simply modify the sentence by lifting the stays and ordering the abstract of judgment to be modified accordingly. We agree with appellant that the case should be remanded for resentencing, at which point the court may reconsider the entire sentence. (See Oates, at pp. 1068-1069; People v. Neely (2009) 176 Cal.App.4th 787, 799; People v. Burns (1984) 158 Cal.App.3d 1178, 1184.)
The original sentence in this case was unauthorized because it did not include mandatory enhancements on consecutive counts. The court may therefore impose a greater sentence on remand. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 437-438; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1424; but see People v. Torres (2008) 163 Cal.App.4th 1420, 1428-1433 .) However, a greater sentence is not inevitable. While the assault with a firearm counts were not subject to section 654 because they involved different victims than the attempted murder count, the trial court had the power to run the sentences concurrently and may elect to do so on remand. (See People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262 [absent express statutory provision to the contrary, court may impose either concurrent or consecutive terms for multiple convictions].) --------
C. Abstract of Judgment
Appellant notes the abstract of judgment mistakenly refers to firearm enhancements found true under section 12022.53, subdivision (b), when the findings were actually made under section 12022.53, subdivision (c). We will direct the trial court to correct the abstract if and when appellant is resentenced.
III. DISPOSITION
The judgment is conditionally reversed. Upon request by appellant following remand, the trial court shall conduct an in camera review of the discoverable material in the personnel files of Officers Neal, White and Grimm and of Sergeant Oviatt, consistent with the views expressed in Section II(A) of this opinion. If the trial court's inspection reveals no relevant information, it must reinstate the judgment of conviction. If the inspection reveals relevant information, the trial court must order disclosure, allow appellant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed.
In the event no new trial is ordered, the court must resentence appellant as set forth in Section II(B) of this opinion, and shall issue a new abstract of judgment reflecting the new sentence and containing the corrections noted in Section II(C) of this opinion. A copy of the new abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.