Opinion
F073118
01-29-2018
THE PEOPLE, Plaintiff and Respondent, v. RAKIME LINDEL JONES, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF299189A)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson and H.N. Papadakis, Judges. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Retired judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge Ferguson presided over defendant's trial. Judge Papadakis sentenced defendant.
-ooOoo-
INTRODUCTION
Defendant Rakime Lindel Jones was found guilty at the conclusion of a jury trial of first degree robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A); count 1), first degree burglary (§ 459; count 2), and dissuading a witness (§ 136.1; count 3). The jury found true an allegation in count 1 that defendant personally used a firearm pursuant to section 12022.53, subdivision (b); and allegations in counts 2 and 3 that defendant personally used a firearm pursuant to section 12022.5, subdivision (a)(1). In a bifurcated proceeding, defendant admitted a prior serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and a prior prison term enhancement (§ 667.5, subd. (b)).
Unless otherwise designated, all statutory references are to the Penal Code.
The trial court sentenced defendant to prison for a term of nine years, doubled to 18 years pursuant to the three strikes law, a consecutive term of 10 years for the section 12022.53, subdivision (b) gun use enhancement, and a consecutive term of five years for the section 667, subdivision (a) enhancement. Defendant's total prison term is 33 years. The court stayed defendant's sentence on count 2 and imposed a concurrent term of four years on count 3.
On appeal, defendant challenges the trial court's sentence, asserting the court improperly used his statement in mitigation as an aggravating factor, thereby penalizing defendant for purportedly failing to accept responsibility for his criminal conduct. Defendant argues his trial counsel was ineffective at the sentencing hearing. Defendant asserts he was prejudiced by the trial court announcing the upper term sentence based on defendant's statement because despite the presence of multiple aggravating factors, the court initially stated its intent to impose a midterm sentence on count 1. Defendant challenges his sentence on count 2 and asserts clerical error in the abstract of judgment. We agree with defendant that the trial court made errors in its pronouncement of sentence, we vacate defendant's sentence, and we remand for resentencing.
FACTS
Trial Evidence
On April 24, 2014, about 9:30 a.m., D.C., his sister S.C., and his friend Terrie D. were sitting in D.C.'s living room drinking beer and vodka and watching television. Defendant, who is a cousin to D.C. and S.C., showed up unannounced, entering through the open front door. Defendant's visits were not unusual.
Defendant told D.C. he wanted to speak to him. D.C. indicated they could talk in the living room, but defendant said it was private. They went to D.C.'s bedroom and defendant closed the door. Defendant told D.C. he needed to take his large-screen television in the bedroom because of the trouble D.C. was causing on the street. D.C. said to defendant, "For real? You want to do this?"
Sometime earlier, D.C. and his other cousin had been allegedly causing havoc in the street. People had jumped on D.C. and defendant came to his rescue. As a result, these same people were harassing defendant because he and D.C. were family. Afterward, D.C. thought he did not have a problem with defendant.
Chris, who is also cousin to D.C. and S.C., and Mikey, one of defendant's friends, arrived. After speaking with S.C., they walked into the bedroom. Inside the bedroom, without saying anything, they started unhooking the television. When D.C. tried to get up, defendant blocked him, pulled out a .45-caliber semiautomatic handgun, cocked the gun, pointed it at D.C.'s chest, and forced him to sit on the bed while Chris and Mikey carried the television out of the room.
At trial, D.C. admitted he had a 2006 or 2007 felony conviction for marijuana.
S.C. was still in the living room when she heard a loud boom from the bedroom and soon the television in the living room stopped working. She went to D.C.'s bedroom and tried to open the door but was only able to partially open it because defendant was blocking the door. S.C. saw Mikey and Chris disconnecting the television and D.C. sitting on the corner of the bed. As Chris and Mikey carried the television out of the apartment, S.C. pulled on it and asked where they were going with it. Defendant said he was taking the television because D.C. was causing problems for their other male cousins, and this was reimbursement for something that happened a long time ago; D.C. would get the television back if he "g[o]t right with it."
S.C. and Terrie D. noticed defendant was holding a semiautomatic handgun. After defendant walked out the door, he turned back and told D.C. through the locked screen door that he had better not call the police and said something about killing him.
Detective Jason Tejeda responded to the 911 call and interviewed D.C., who appeared scared and a bit confused. Tejeda did not smell alcohol on D.C.'s breath or notice any signs of intoxication. In his report, Tejeda noted defendant was six feet two inches tall and weighed 280 pounds.
Sentencing Hearing
The probation officer's report included details of the incident from the police reports that were not presented by the People at trial. The probation report referred to a discussion in the bedroom between defendant and D.C. about a prior incident. According to D.C., he had been in a car stopped by the police and a concealed handgun owned by one of his passengers was found. The passenger wanted D.C. to take responsibility for the gun found in the car because the passenger had two strikes. D.C. refused to do so and thereafter was assaulted by gang members and contacted by relatives, including defendant, who insisted D.C. take responsibility for the gun. Defendant was supposedly associated with the Crips gang. The probation report referred to defendant racking his semiautomatic handgun after pulling D.C. back into his bedroom and then pointing the gun at D.C.'s head. Defendant allegedly told D.C. not to move or defendant would "pop [him] right now." The report noted defendant was armed with the gun while pushing S.C. away.
Defendant was on community release when he committed the instant offense. Defendant had several misdemeanor adjudications as a minor for possession of marijuana, petty theft, disturbing the peace, and one for battery. In 2008, defendant was convicted of arson (§ 451, subd. (b)). Defendant was convicted in 2010 for felony possession of narcotics (Health & Saf. Code, § 11377, subd. (a)). Defendant was committed to state prison for this offense. In June 2015, defendant was found in violation of postrelease community supervision (§ 3455, subd. (a)). Defendant said he used marijuana every day from the age of 14 and used methamphetamine from the age of 16 until he was 20 years old. While on community release, defendant admitted taking Ecstasy.
Defendant has little contact with his parents, who have been in and out of prison defendant's entire life. Defendant was raised by his grandmother until she died of kidney failure when he was 12 or 13 years old. Defendant was homeless at the time of his arrest. Defendant has never been formally employed as an adult but has worked side jobs.
The probation officer noted there were no factors in mitigation. As aggravating factors, the probation officer noted defendant induced others to participate in the commission of the crime or assumed a position of leadership (Cal. Rules of Court, rule 4.421(a)(4), the manner the crime was committed indicates planning or sophistication (rule 4.421(a)(8)), defendant took advantage of a position of trust or confidence (rule 4.421(a)(11)), defendant engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)), defendant served two prior prison terms (rule 4.421(b)(3)), defendant was on community release when he committed the instant offense (rule 4.421(b)(4)), and defendant's prior performance on probation and community release was unsatisfactory (rule 4.421(b)(5)).
Further rule references are to the California Rules of Court.
The probation officer recommended the midterm of six years on count 1, doubled to 12 years pursuant to the three strikes law. The probation officer recommended consecutive terms of 10 years for the gun use enhancement and five years for the prior serious felony conviction enhancement. The total recommended sentence was 27 years in prison, with defendant's sentence on count 2 stayed pursuant to section 654 and a concurrent sentence of four years on count 3.
At the sentencing hearing, the trial court indicated it had read the report and recommendation of the probation officer. The court noted the judge who presided over defendant's trial had retired. Defense counsel had no additions or corrections to the report and submitted the matter.
The prosecutor argued against the probation officer's recommendation of the midterm of 12 years and asked the court to sentence defendant to the upper term of nine years, doubled to 18 years pursuant to the three strikes law. He further argued defendant's sentence on count 3 should be consecutive rather than concurrent. The prosecutor stated defendant's crime involved great violence, involved two other robbers, and defendant used a handgun. The prosecutor argued the victim was particularly vulnerable because he had helped defendant in the past and was defendant's cousin. The prosecutor stated defendant was the leader in the crime.
The prosecutor further argued defendant had a history of violent conduct because of a prior conviction for arson, a serious felony indicating he is a danger to society. Defendant was on community release when he committed this offense and there were no factors in mitigation. The prosecutor stated it was fortunate no one was hurt and there were two other people present in the apartment during the robbery. Defense counsel responded the victim was not physically harmed and did not require medical attention. Defense counsel pointed out the two witnesses present in the apartment were not named victims, and he asked the court to follow the probation officer's recommendation of a 27-year prison sentence.
The trial court noted there were no factors in mitigation but there were multiple factors in aggravation set forth in the probation officer's report. The court described defendant's history as "miserable." In response to this observation, defendant asked the court if he could make a statement and said the following: "As far as my history, I've only been convicted of one serious felony and that was when I was young and it wasn't arson and it wasn't intended to hurt nobody and it wasn't intended to be violent, which it is under the court's eyes, but other than that, I don't have a serious violent history."
The defendant added: "I, I've been convicted of that one case and I didn't go to prison on that. I did County time on it and my probation, yeah, I was violated for drugs which under, under new circumstances would be considered a misdemeanor, so I went to prison—I've actually went to prison on something that was a misdemeanor, so that felony right there, I mean under new law, is considered a misdemeanor so I don't have a serious—" Interjecting, the court asked defense counsel if he wanted defendant to talk anymore. Defense counsel replied that what defendant said was true because defendant's conviction for violating Health and Safety Code section 11377, subdivision (a) would now be a misdemeanor under Proposition 47.
In its remarks prior to announcing defendant's sentence, the trial court stated: "As everyone knows, I was not the trial judge in this case. I didn't do the trial. I don't know what took place there. I didn't do the pretrial on it. Don't know what the situation was prior to trial." The court further commented, "Those circumstances make it very difficult to determine an appropriate sentence. When a judge observes the full trial, the reason why the judge does the sentencing is because the judge has observed all the facts that amount to a conviction." The court noted, "I guess I'll just save all the time and the trouble and a lot of words and I will tell you something, somebody is gonna get upset here in a minute and you better be ready." (Italics added.)
The trial court made the following findings:
"It was the intent of this court to follow the recommendation of the probation officer because not having handled the trial, not having observed all the facts or anything of the defendant but after two factors—One is, the factors in aggravation are significant and the court adopts those pointed out by the District Attorney today and I recognize those when we were last in court.
"And then the court still was seriously considering following the recommendation of the mid term and not the aggravated term, but after hearing the defendant today, he doesn't accept any responsibility for his acts.
"Yes, there was a crime that was reduced to a misdemeanor by a vote of the public later but he was on the post release program. He minimizes his prior activities and that tips the scales for the court to adopt the aggravated term by the factors as stated here on the record today."
In announcing defendant's sentence on count 1, the court stated defendant was "committed to state prison for the aggravated term of 12 years pursuant" to the three strikes law. The clerk's minute order and the abstract of judgment indicate defendant received the upper term of 18 years on count 1.
DISCUSSION
1. Defendant's Right to Due Process
Introduction
Defendant contends the trial court abused its sentencing discretion when it used defendant's statement in mitigation as an aggravating factor. Defendant further argues the trial court denied defendant due process by using defendant's statement in mitigation to give him a greater sentence than recommended by the probation office. The People reply defendant forfeited this issue because his counsel did not lodge an objection during the sentencing hearing, and any error was harmless because there were multiple factors in aggravation. We reject the forfeiture issue because an objection by trial counsel to the trial court's finding would have been futile. Further, under the facts of this case, the trial court's finding presents a question of law.
Defendant alternatively argues his trial counsel was ineffective for failing to argue there were mitigating sentencing factors not covered in the probation officer's report. We find the trial court improperly penalized defendant for making a statement in mitigation, violating his right to due process. Because the error was not harmless, we vacate the trial court's sentence and remand for a new sentencing hearing.
Forfeiture
Generally, a defendant must object to the trial court's exercise of its sentencing discretion in articulating its reasons for a sentence, and issues not raised in the trial court cannot be raised for the first time on appeal. Routine defects in the court's statement of reasons for imposing a sentence are usually easily prevented and corrected if brought to the court's attention. (People v. Scott (1994) 9 Cal.4th 331, 356; People v. Steele (2000) 83 Cal.App.4th 212, 226.) When defense counsel submits the defendant's case without first requesting the defendant make a statement in mitigation, the defendant has forfeited the right to make a statement in mitigation after the sentence has been pronounced. (People v. Evans (2008) 44 Cal.4th 590, 600.)
Evans waited until after the court denied probation and began to sentence him before asking the court to speak. The Evans court found forfeiture. (People v. Evans, supra, 44 Cal.4th at p. 600.) Evans is distinguishable from this case on the question of forfeiture, as we further discuss, because defendant and his counsel did not seek to address the trial court until after it mischaracterized defendant's criminal history.
A defendant is excused from the necessity of a timely objection, however, where to do so would be futile. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Arias (1996) 13 Cal.4th 92, 159.) The trial court here described defendant's history as "miserable." Only after making this statement did defendant address the court. The court's comment about defendant's criminal history was also made after defense counsel had submitted the matter. The trial court interrupted defendant before he had finished his comments and curtly asked counsel if he was going to stop his client from speaking further. After trial counsel noted defendant was correct in pointing out Proposition 47 had turned one of his two felony convictions for drug possession into a misdemeanor, the court stated "somebody is gonna get upset here in a minute and you better be ready."
These comments demonstrated the sentencing court's irritation at defendant for addressing the court's observation that his criminal history was miserable. The court then construed defendant's comments about his past criminal conduct into a general denial of criminal wrongdoing. Defendant's comments were not an attempt to minimize his current convictions, but an argument to show his past convictions did not involve violence, a point argued by the prosecutor. Given the trial court's obvious irritation at defendant's comments, it would have been futile for trial counsel to object to the trial court's reliance on defendant's statement as an aggravating factor.
People v. Steele, supra, 83 Cal.App.4th 212 is instructive. In Steele, the defendant objected for the first time on appeal to several aggravating factors relied upon by the trial court. The Steele court noted the defendant had notice from the probation officer's report of the factors relied upon by the trial court and had the opportunity to raise appropriate objections. (Id. at p. 226.) Here, in contrast to Steele, the trial court relied on defendant's failure to show remorse as the primary aggravating factor it focused on to impose the upper term sentence. This was not a factor set forth in the probation officer's report and, unlike Steele, neither defendant nor his trial counsel had advance notice the trial court would rely upon it.
Defense counsel corroborated defendant's point that his conviction for the felony drug conviction was now a misdemeanor after the passage of Proposition 47. Counsel's argument served to counter the court's assertion defendant's prior record was miserable. Although counsel did not object to the court's finding that defendant's lack of remorse was a factor in aggravation, counsel's counterpoint argument was tantamount to a formal objection and served as a response to the trial court's statement concerning defendant's criminal history.
Counsel's argument to the court also underscored the futility of lodging a further objection to the trial court's finding defendant lacked remorse for his criminal conduct because the court summarily rejected counsel's argument. The court noted the voters mitigated defendant's prior felony conviction for drug possession. The trial court's summary rejection of the arguments of both defendant and his counsel indicates a formal objection to the trial court's finding in aggravation would have served no purpose because the trial court had made up its mind on this point. A further objection by counsel would not have served the policy of giving the trial court the opportunity to correct an error in selecting a factor in aggravation.
Furthermore, an error raising a constitutional question of law can be reviewed on appeal where the alleged error is correctable without referring to factual findings in the record. In such cases our Supreme Court has not applied the forfeiture rule. (In re Sheena K. (2007) 40 Cal.4th 875, 884-888; see People v. Anderson (2010) 50 Cal.4th 19, 26.) As we further discuss, the trial court's error in interpreting defendant's statement is apparent on the face of the record and constitutes a federal due process violation. We therefore do not find this issue has been forfeited for appellate review.
Due Process Analysis
In People v. Evans, supra, 44 Cal.4th 590, the California Supreme Court held section 1200 did not afford criminal defendants the general right of allocution—a personal request to the trial court by the defendant for mitigated punishment. Section 1200 sets forth a procedure where the trial court questions the defendant whether he or she has any cause for punishment not to be pronounced. It is not an invitation for reasons why the court should pronounce a more lenient sentence. (Evans, at pp. 596-597.) Evans noted, however, a defendant still has the right to seek mitigation of punishment by following the procedures set forth in section 1204. (Evans, pp. 597-598.) Under this statute, the defendant has the right to call witnesses to testify, including himself or herself. The court may receive evidence in mitigation or aggravation. Generally, such a proceeding is conducted through the testimony of witnesses rather than by verbal representations. In following this procedure, the Legislature is requiring the defendant to give his or her testimony under oath. (Id. at p. 598.)
Evans noted the trial court may refuse to hear evidence pertaining to matters that are only peripherally relevant to the court's exercise of its sentencing discretion. Under rule 4.411.5(a)(4), the probation report must include any statement made by the defendant to the probation officer, or a summary of that statement, including the defendant's account of the circumstances of the crime. Furthermore, with the parties' consent, the trial court may proceed more informally without the defendant testifying under oath and allow the defendant to make a brief unsworn statement urging lesser punishment. Evans noted the better practice is for statements to be under oath and subject to cross-examination. (People v. Evans, supra, 44 Cal.4th at p. 599.) The procedure set forth in section 1204 gives a criminal defendant the right to make a sworn personal statement in mitigation that is subject to cross-examination by the prosecution, affording the defendant a meaningful opportunity to be heard and thus does not violate the defendant's federal constitutional rights. (Evans, at pp. 599-600.)
The People argue defendant does not have an automatic right to allocution during sentencing. Defendant contends his right to allocution is constitutional. In Evans the court held a defendant can present mitigating evidence during sentencing through the formal procedure set forth in section 1204, or with the consent of the parties, a defendant can make an informal address to the court. Defendant's informal address to the court came only after the trial court characterized defendant's criminal history as miserable. The probation officer's report did not support the trial court's assessment of defendant's criminal history. Defendant's adjudications as a minor were all misdemeanors and one of his two prior felony convictions as an adult became a misdemeanor after the passage of Proposition 47.
Whether defendant had an automatic or constitutional right to allocution—a point disputed by the People—is beside the more fundamental point he is making on appeal. Defendant had a statutory right to formally or informally make a brief statement in mitigation. Defendant made a statement in mitigation to the court after the court mischaracterized defendant's criminal history but before sentence was pronounced. Defendant's comments were made without objection by the prosecutor. Defendant's observations were not directed to his current convictions and only addressed his prior convictions. Defendant argued his felony conviction for arson was not violent and he committed it without violent intent. Defendant added his felony conviction for drug possession was no longer a felony by operation of law. Defendant did not deny culpability or responsibility for his current convictions.
After inaccurately construing defendant's remarks as demonstrating a lack of remorse and noting there were multiple aggravating factors, the court stated: "And ... the court still was seriously considering following the recommendation of the mid term and not the aggravated term, but after hearing the defendant today, he doesn't accept any responsibility for his acts." The court said its intent was to impose a midterm sentence, which followed the probation officer's recommendation. But after listening to defendant, the court construed defendant's statement in mitigation against him and imposed the aggravated sentence based on this factor. Although there were multiple factors in aggravation identified in the probation report, the court's stated intent was to impose the midterm sentence on count 1 until defendant made his comments.
From its comments at the sentencing hearing, it is clear the trial court inaccurately construed defendant's statement in mitigation as one denying culpability and showing lack of remorse. The court then relied on the statement as the primary basis for imposing an upper term sentence. Defendant's statement was within his statutory rights, and although it followed an informal approach rather than the procedure set forth in section 1204, this form of allocution was acknowledged as acceptable by the Supreme Court in Evans. Defendant's statement was brief and directed to the trial court's description of defendant's criminal history.
Punishing a person because he or she has done what the law plainly allows "is a due process violation 'of the most basic sort.'" (United States v. Goodwin (1982) 457 U.S. 368, 372, quoting Bordenkircher v. Hayes (1978) 434 U.S. 357, 363.) While a person may be penalized for violating the law, he or she "just as certainly may not be punished for exercising a protected statutory or constitutional right." (United States v. Goodwin, supra, at p. 372.) We find the trial court violated defendant's due process rights in misconstruing his statement in mitigation as showing lack of remorse and then using that statement to impose the aggravated term. Accordingly, we reverse the sentence and remand for a new sentencing hearing.
Prejudice
The People argue any error by the trial court is necessarily harmless because there were multiple sentencing factors applicable to defendant. The People point out the weight to afford each sentencing factor lies with the trial court, and only a single factor in aggravation is necessary to support an upper term sentence. (See People v. Osband (1996) 13 Cal.4th 622, 730 [single factor in aggravation sufficient to impose upper term sentence]; People v. Lai (2006) 138 Cal.App.4th 1227, 1258 [trial court has considerable discretion in weighing aggravating and mitigating factors and may minimize or totally disregard mitigating factors].)
We reject this argument. As we have already explained, the trial court expressly indicated its initial intent to impose the midterm sentence on count 1 after noting there were multiple aggravating factors set forth in the probation report. The court then used defendant's allocution, which was directed to the lack of violence or violent intent in his prior two felony convictions, to find a lack of remorse and to impose the upper term on count 1. The trial court abuses its sentencing discretion if it relies on circumstances not relevant to the decision or that otherwise constitute an improper basis for the court's decision. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The trial court used an improper factor not identified in the probation officer's report as the primary basis for imposing an aggravated sentence. Further, it penalized defendant for exercising a statutory right to address the court and improperly enhanced defendant's sentence in violation of his right to due process. This was prejudicial error, notwithstanding the presence of multiple aggravating factors, and the trial court abused its discretion.
2. Alleged Ineffective Assistance of Trial Counsel
Defendant asserts his trial counsel was ineffective for failing to object to the trial court's imposition of the aggravated term on count 1 based on defendant's allocution and for defense counsel's failure to mount a more vigorous challenge to the probation officer's report, which in defendant's view omitted key mitigating factors. Because we find no forfeiture and we remand for resentencing, we do not reach the allegation trial counsel was ineffective. At resentencing, the parties may raise any issues not raised at the first sentencing hearing, and should defendant elect to do so, have a proceeding pursuant to section 1204.
The Legislature has recently enacted and the Governor has signed legislation amending section 12022.53 to give trial courts the discretion to strike gun use enhancements. (Sen. Bill No. 620 (2017-2018 Reg. Sess.) § 2.) This legislation is effective January 1, 2018, a date after which this court will issue remittitur. Defendant may also raise this issue at the resentencing hearing. --------
3. Other Sentencing Errors
Defendant argues the trial court imposed the wrong sentence on count 1 because the court announced it was imposing the upper term sentence, but stated the sentence was 12 years—six years doubled pursuant to the three strikes law—when the upper term sentence was 18 years—nine years double pursuant to the three strikes law. It was clear the trial court misspoke and as discussed above, meant to impose the upper term sentence of 18 years on count 1. Defendant further argues the court actually imposed a sentence of 12 years but the abstract of judgment and clerk's minute order show a sentence of 18 years. Because the case is being remanded for resentencing, the court will have to prepare an amended abstract of judgment after resentencing defendant.
Defendant further argues the court stated it was imposing the midterm of six years on count 2, the midterm for burglary of three years doubled to six years pursuant to the three strikes law. The midterm for first degree burglary is four years, which would be doubled to eight years under the three strikes law. This count was stayed pursuant to section 654. It is unclear from the record, however, whether the trial court meant to impose a mitigated term of six years or the midterm term of eight years on count 2. The trial court can clarify its sentence on count 2 at the resentencing hearing.
DISPOSITION
The defendant's convictions are affirmed. The trial court's sentence is vacated and the case remanded for a new sentencing hearing.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.