Opinion
A130090
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL T. LOCKHART, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Alameda County Super. Ct. No. 157460
Appellant Michael Lockhart was convicted by jury of possession of cocaine for sale (Health & Saf. Code, § 11351) and transportation of a controlled substance (§ 11352, subd. (a)). The trial court found true the allegations that Lockhart suffered two prior strike convictions, within the meaning of Penal Code sections 1170.12, subdivision (c)(2), and 667, subdivision (e)(2). The court denied Lockhart's motion to dismiss the prior strike conviction allegations and sentenced him to state prison for an indeterminate term of 25 years to life.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Lockhart claims error by the trial court in: 1) denial of his Batson/Wheeler motion on a prosecution peremptory challenge; 2) denial of his posttrial Romero motion to strike his prior convictions for purposes of sentencing; and 3) denial of appropriate credits for presentence local custody. He also asks us to independently examine the record of in camera proceedings on a Pitchess motion to review the trial court's finding that there was no discoverable material.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson), People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
The People concede that Lockhart is entitled to additional custody credits, and we will direct that the judgment and abstract be amended accordingly. We affirm in all other respects.
I. BACKGROUND
At about 8:35 a.m. on March 18, 2007, Alameda County Sheriff's Deputies Michael Giammalvo and Rui Marques were on duty at Highland Hospital and received a police dispatch advising that a shooting had just occurred at 66th and Bancroft and that a gunshot wound victim might be coming to the hospital in a brown Ford Bronco. The deputies found the described vehicle parked at the emergency drop-off area. Giammalvo located the gunshot victim, John King, in the vehicle and requested the assistance of medical staff.
Lockhart was the driver of the Ford Bronco. As Giammalvo was dealing with King, Lockhart got out of the vehicle and started walking away. Marques detained Lockhart and attempted to conduct a patsearch. As Marques was trying to conduct the patdown search, Lockhart reached into his left front pants pocket, removed a clear plastic baggie containing a white powder, and threw it into the Bronco. Giammalvo also saw Lockhart drop or throw the baggie into the vehicle. Giammalvo located the plastic baggie that Lockhart had thrown on the floor on the driver's side of the Bronco, near the center console. The bag contained 27.20 grams of cocaine. It had a street value of $650-$750 and contained "many doses."
The Bronco was also registered to Lockhart.
A hospital video security camera captured the incident and the video was played before the jury.
Trial commenced on April 26, 2010. On May 14, 2010, a jury convicted Lockhart of possession of cocaine for sale (§ 11351) and transportation of a controlled substance (§ 11352, subd. (a)). In a bifurcated proceeding, the trial court found that Lockhart had suffered two prior "strike" convictions under Penal Code sections 1170.12, subdivision (c)(2), and 667, subdivision (e)(2).
On August 2, 2010, Lockhart filed a Romero motion to dismiss the strikes. He subsequently discharged his retained counsel and elected to represent himself. On October 15, 2010, the trial court denied Lockhart's motion to dismiss the strike conviction allegations and sentenced him to state prison for an indeterminate term of 25 years to life on the charge of possession of cocaine for sale. Sentence on the count charging transportation of cocaine was stayed, and additional enhancement allegations under Penal Code section 667.5 were stricken. Presentence custody credits of 1,608 days were awarded.
Lockhart filed a timely notice of appeal on October 18, 2010.
II. DISCUSSION
A. The Batson/Wheeler Claim
During jury selection, the prosecutor exercised a peremptory challenge to prospective juror J.H., an African-American woman. Lockhart made a Batson/Wheeler objection/motion, asserting that the prosecutor had improperly challenged the prospective juror on the basis of race, and moved to discharge the jury panel. The trial court found that Lockhart had made a prima facie showing of racial discrimination and requested that the prosecutor provide permissible race-neutral reasons for the peremptory challenge. After hearing the prosecutor's sworn responses, the court accepted the prosecutor's explanation and denied the motion.
Lockhart contends that the trial court's finding that there was no improper racial motive was "wrong" and that, as a matter of law, "the totality of the circumstances, including the prospective juror's answers and comments, do not support a non-racially motivated reason for the challenges."
1. Standard of Review
Both the California and federal Constitutions forbid a prosecutor from excluding prospective jurors from the jury for a racially discriminatory purpose. (Batson, supra, 476 U.S. at pp. 84-89, 95-96; Wheeler, supra, 22 Cal.3d at pp. 276-277.) The "exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal. [Citations.]" (People v. Silva (2001) 25 Cal.4th 345, 386.)
There are three stages in the trial court's evaluation of a Batson/Wheeler challenge to a peremptory strike: " ' "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]" ' [Citations.]" (People v. Zambrano (2007) 41 Cal.4th 1082, 1104 (Zambrano), disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also Johnson v. California (2005) 545 U.S. 162, 168.)
"At the third stage of the Wheeler/Batson inquiry, 'the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire." (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix), fn. omitted.) The ultimate question the trial court must determine is "whether the advocate allowed his or her calculus to be infected by racial bias and then lied to the court in an attempt to get away with it." (Id. at p. 626.)
Review of a trial court's denial of a Batson/Wheeler motion is deferential. (Lenix, supra, 44 Cal.4th at p. 626.) " 'We review the trial court's ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner.' " (Zambrano, supra, 41 Cal.4th at p. 1104; People v. Turner (1994) 8 Cal.4th 137, 165 [it is presumed "that a prosecutor uses his or her peremptory challenges in a constitutional manner"], overruled on different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) "Since the trial judge's findings [on this issue] largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference" (Batson, supra, 476 U.S. at p. 98, fn. 21), "recogniz[ing] that such a ruling 'requires trial judges to make difficult and often close judgments.' " (Wheeler, supra, 22 Cal.3d at p. 281.) Acknowledging that "these determinations of credibility and demeanor lie ' "peculiarly within a trial judge's province," ' " the United States Supreme Court has also stated that in making such decisions, " 'in the absence of exceptional circumstances, [it] would defer to [the trial court].' [Citation.]" (Snyder v. Louisiana (2008) 552 U.S. 472, 477.)
2. J.H.'s Voir Dire Responses
Prospective juror J.H., in both her juror questionnaire and in her answers on voir dire, said that she had relatives who were convicted of serious crimes. Under further questioning, she admitted that her two brothers had attempted to rob an armored car and "somebody got killed." She had been subpoenaed to their trial. Both were convicted and incarcerated. J.H. currently lived with one of her brothers (the other was deceased), but they did not discuss his prior convictions. She said that she did not know enough about her brothers' convictions to form an opinion about whether they had been treated fairly.
The questionnaire completed by J.H. could not be located, and is not part of this record. Certain of J.H.'s questionnaire responses were referenced during her voir dire. A copy of the form used is included in the clerk's transcript.
J.H. also stated she had close relatives working in law enforcement, and that those relationships would not affect her ability to be fair. She agreed that she would judge all witnesses by the same standard and said that she could be fair to both sides. In her questionnaire, she stated, "I feel the system is good and fair," and said that was true even with respect to her brothers. She also wrote that she had "no reaction" to the charges against Lockhart and had no feelings about drug charges or drug laws in general.
Both sides passed prospective juror J.H. for cause. The prosecutor exercised his third peremptory challenge against J.H.
3. The Prosecutor's Explanation
The prosecutor gave the following explanation under oath:
"Okay. [J.H.], as I've indicated, as a prosecutor, one of the things that concerned me most by [J.H.] is obviously the fact that her brothers were convicted of very serious crimes, perhaps the most serious crimes, and she just referred to them in very general terms in the questionnaire in certain places, she did identify in one location in the questionnaire as robbery and murder. [¶] And when I asked her the first questions about those incidents, she was extremely hesitant and reluctant to provide any information. That hesitancy and reluctance is not a characteristic that I find conducive with a juror who . . . can be fair and impartial and approach the prosecution's case with an open mind. [¶] She indicated it was a long time ago, and she did not remember a lot about it. So, obviously, recognizing that it's not an easy subject matter to talk about, I decided to ask her further questions to see if she was going to be more forthcoming. [¶] And to be quite honest, and I think [defense counsel] sensed and felt her hesitancy and awkwardness in her response to the questions, which is why he objected to me continuing to ask questions, but it was literally pulling the information from within her that I could detect, based on her demeanor and her appearance was there, but it was simply her reluctance to provide the information. [¶] I asked her about what was bad or good about the experience based upon her identification as her brothers being people who had both good and bad experiences with law enforcement. She indicated the incarceration part was bad, but she couldn't elaborate any further. [¶] She basically gave the impression that she did not know very much about the case. I think that was belied by her responses. [Defense counsel] described it as her biggest sin and only sin that she didn't remember right away what happened with her brothers. [¶] I agree with that assessment, and he
"THE COURT: In fact, you really didn't ask a lot of questions about anything except that, did you?
"[PROSECUTOR]: Correct, given the time constraints that the court has put upon us, and given her obvious reluctance and hesitancy in responding to my questions initially about that, I felt that it was proper[] for me to continue my line of questioning about that. [¶] And [defense counsel] admits that [J.H.] did not admit right away about what happened with her brothers, and I had to exact [sic] that information from her. [¶] And it became clear to me, based upon her responses the amount of pause she took before answering the questions and her demeanor, that she actually knew more information. [¶] For example, on page 15 of her questionnaire, she outlines exactly where her brothers were incarcerated, Tracy, Folsom, Soledad. But she insisted that here in court she did not know much about the case. [¶] I then asked her further questions, and she then indicated that she knew it was in San Francisco, she knew that it was the robbery of an armored car, she denied knowing who the victim was in the case, and she made it seem like she was extremely distant from her brothers. [¶] What later comes out is the fact she was living in the Bay Area at the time. She was not living in Ohio, which was the initial impression, and that she only indicated that she got the information from her parents, even though she was the family member, or at least one other family member living here in the Bay Area. [¶] When I asked her whether or not she had an opinion about whether or not her brothers were treated fairly by the criminal justice system, her only response was 'I guess so.' [¶] Then she referred to the fact they had a trial, and she guessed that the jury must have thought they were guilty. [¶] I just felt that with all of her responses, she was attempting to distance herself from that. While some of that can be understood, it's her general reluctance and hesitancy to respond to the questionnaire and to the questions that I asked her, specifically about those issues. [¶] That leads me to believe that she is not the type of person who would be forthcoming, who can be fair and impartial, given those experiences, and, quite frankly, I wouldn't want any juror, regardless of their race, who is going to hide information, be reluctant to provide information to this court in this process, in any fashion whatsoever. I felt that's exactly what she was doing. [¶] So [defense counsel] can describe it as her only sin, but in my mind that's a fatal sin from the prosecution's perspective. It's a very, very serious crime, and if she has that attitude about a very serious crime, including felony murder of someone involved in a robbery, committed by not one, but two of her relatives, brothers, I'm not sure you can get closer in terms of relatives, one of whom she still lives with, even though she didn't provide that information voluntarily either, I just felt she would not be a fair and impartial juror in this case. [¶] And when you compare her responses on a big issue like murder and robbery, I didn't think she would be appropriate to serve on the case involving narcotics, which some people would say is not of the same magnitude or gravity."
4. The Trial Court's Findings
The trial court accepted the prosecutor's explanation. In denying the motion, the court stated: "It occurred to me, even then before there was a new motion, that yes, [the prosecutor] was finding out so much information from this person that there was a question of whether or not the person was, in fact, being accurate and truthful or was actually withholding information. [¶] I don't think the potential juror was in any way being dishonest from the total summary, but the reality that he could be concerned about that was real. She sure seemed to remember, once pushed, a lot of things. [¶] So I am accepting his sworn testimony that that potential juror created problems for him because of that conduct, and it had nothing to do with race. I'm also clear, I think, in finding the presumption that on paper I begin with the idea that this person could be compared to others and would be satisfactorily even be seen as a pro-prosecution juror possibly, so as we did the presumption test, and it was passed well. But the reality is, I accept [the prosecutor's] position completely. [¶] As you both know, you've both been in front of me, [the prosecutor] has actually done trials in front of me, I have not in any way considered in past experiences in [the prosecutor] in any evaluation in this case. [¶] If I thought I had the right or the duty to do so. I would not have found any presumption could or would exist in this situation, because I've seen the pictures before. But I don't think I have a right to do that, so I didn't do that. [¶] That's the court's ruling, so the court will deny the motion."
Lockhart nevertheless insists that the trial court's credibility finding is erroneous because "[n]o forthright prosecutor would ever dismiss such a juror." It is not, however, the opinion of defense counsel as to a juror's qualifications or desirability that is relevant. Certainly the reasons given by the prosecutor were not inherently implausible. (See People v. Reynoso (2003) 31 Cal.4th 903, 916 (Reynoso) ["implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination"].) Moreover, a prosecutor could have reasonable concerns that a juror whose two brothers had been convicted of serious offenses, particularly one who appeared reluctant to provide relevant information, might harbor some bias against the prosecution, regardless of her other answers. (See Wheeler, supra, 22 Cal.3d at p. 277 & fn. 18 [relative convicted of crime "give[s] rise to a significant potential for bias against the prosecution"].) A "prosecutor is entitled to exercise a certain number of peremptory challenges simply on a suspicion that the juror will be unfavorable to his or her cause . . . ." (People v. Pinholster (1992) 1 Cal.4th 865, 914, disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405, 459.) "The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.]" (Reynoso, at p. 924.)
"The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]" (Lenix, supra, 44 Cal.4th at pp. 612-613.) The trial court's finding that the prosecutor's expressed reasons for the exercise of the challenge were genuine, credible and race-neutral are supported by substantial evidence. The totality of the relevant facts does not give rise to an inference of discriminatory purpose. B. The Romero Motion
Lockhart argues that the court abused its discretion by denying his motion to strike one or both of his prior "strike" convictions. He insists that the current offenses "are not sufficiently grave to warrant 25 years to life in prison," and that Lockhart's overall record does not warrant such a "draconian sentence." He says that his 2002 plea to voluntary manslaughter followed reversal of a 1990 murder conviction, and that the plea was not made because Lockhart was necessarily guilty, but was a "practical decision focused solely on freedom" to secure his release. Lockhart suggests that his robbery "strike" prior is "ancient," having been committed in 1985. He acknowledges, however, that in the intervening years Lockhart committed other offenses and did not lead a crime-free life.
1. Standard of Review
A court has discretion under Penal Code section 1385 to dismiss sentencing enhancement allegations under the "three strikes law." (Romero, supra, 13 Cal.4th at pp. 504, 530.) In exercising that discretion, and consistent with the language of and the legislative intent behind the three strikes law, there are "stringent standards that sentencing courts must follow" in order to justify doing so. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) It must consider " 'whether, in light of the nature and circumstances of [a defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' [Citation.]" (Ibid.) A trial court's failure to dismiss or strike a prior serious and/or violent felony conviction allegation under Penal Code section 1385 is reviewed for abuse of discretion. (Carmony, at p. 376.)
"The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading. [¶] . . . [¶] . . . If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)." (Pen. Code, § 1385, subds. (a), (c)(1).)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
There is a " 'legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law.' " (In re Large (2007) 41 Cal.4th 538, 550, quoting Carmony, supra, 33 Cal.4th at p. 376.) "Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, at p. 378.)
2. Analysis
Lockhart acknowledges that the trial court "conscientiously considered" his motion. The trial judge considered the written pleadings submitted by Lockhart's prior counsel and Lockhart's pro se arguments. The trial court rejected Lockhart's contention that his conviction by plea of voluntary manslaughter reflected anything less than a finding of culpability for a serious felony. The court also considered the circumstances of the current offense, including the fact that there was a gun found in Lockhart's car. The court also had before it a probation report noting Lockhart's extensive criminal history, and his past failures on both probation and parole. The record clearly reflects that the trial court was well aware of its discretion, and of the factors it was required to consider in the exercise of that discretion.
Lockhart's protests notwithstanding, we do not find this to be an "extraordinary case," where the relevant factors "manifestly support the striking of a prior conviction and no reasonable minds could differ . . . ." (Carmony, supra, 33 Cal.4th at p. 378.) Lockhart fails to show that the court "acted so irrationally or arbitrarily that no reasonable person could agree with its denial of Romero relief. [Citation.]" (People v. Lee (2008) 161 Cal.App.4th 124, 131-132.) C. The Pitchess Motion
On March 10, 2009, Lockhart filed a Pitchess motion, seeking discovery of the personnel records of Deputy Marques. Lockhart's counsel alleged that Marques made false statements in his police report of the incident leading to Lockhart's arrest about the probable cause to detain Lockhart, and that the defense sought the information in order to challenge the admissibility of the evidence seized from Lockhart's vehicle. On April 17, 2009, the trial court, after an in camera hearing, "found no files discoverable under Pitchess." Lockhart asks this court to independently review the materials examined by the trial court at the in camera hearing in order to review the trial court's finding that there was no discoverable material. We review the trial court's decision to deny disclosure of personnel records for an abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228 (Mooc).)
On January 24, 2011, we granted Lockhart's request to augment the record to include the April 17, 2009 in camera proceedings on Lockhart's motion. We have reviewed the sealed transcript of the in camera hearing, and question whether the augmented record before us is adequate to permit review. The material actually examined by the trial court is not included with the augmentation provided, although it is briefly described by the trial court in the hearing transcript. As our Supreme Court observed in Mooc, "[t]he trial court should . . . make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent." (Mooc, supra, 26 Cal.4th at p. 1229.) The court suggested that uncertainty in the record would best be resolved by remanding to the trial court to hold a hearing to augment the record. (Id. at p. 1231.)
We do not believe that remand is required here, however, since it appears that the issue was mooted by a subsequent review of Marques's personnel records, and disclosure of any relevant information as to Marques's credibility. On April 1, 2010, Lockhart filed a supplemental Pitchess motion, alleging that Marques had been terminated by the Alameda County Sheriff for misconduct, and seeking information from his personnel records as to the basis for his termination. Any documents requested in the first Pitchess motion were presumably encompassed in the second request and delivered to the court for the second in camera review. The records were produced and discovery was ordered. It was revealed that Marques was fired from his job as a sheriff's deputy because he illegally obtained and transported valium, illegally took steroids, and lied about these actions in an investigation. These facts were presented to the jury by both the prosecution and the defense. Lockhart makes no claim of error in the conduct of this second hearing or in the court's ruling on the motion. Lockhart therefore ultimately received and utilized the discovery he sought.
We have nevertheless also reviewed the transcript of the April 22, 2010 in camera proceedings.
In any event, even if the material produced following the second Pitchess hearing did not include the material considered by the court at the first hearing in April 2009, any error in the first hearing clearly would be harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836.) The impeachment material disclosed to Lockhart following the second hearing was far more current and far more damaging to Marques's credibility than any material considered by the court in the earlier proceeding. D. Award of Custody Credits
Lockhart spent 1,399 days in custody prior to sentencing. The trial court, apparently in reliance on Penal Code section 2933.1, awarded total custody credits of 1,608 days, applying only a 15 percent credit of 209 days. Lockhart argues that he is entitled to "one-for-two" credits, pursuant to Penal Code sections 2900.5 and 4019. The People properly concede the issue.
Penal Code section 2933.1, subdivision (a) provides that "any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit . . . ." Penal Code section 667.5, subdivision (c) deals with violent felonies.
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Sections 11351 and 11352 are not identified as violent felonies under Penal Code section 667, subdivision (c) and therefore Penal Code section 2933.1 is inapplicable. (See People v. Garcia (2003) 107 Cal.App.4th 1159, 1166; People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Lockhart is entitled under a correct calculation to a total of 2,097 days presentence custody credit. (See People v. Smith (1989) 211 Cal.App.3d 523, 527.) We will direct that the trial court amend the abstract of judgment accordingly.
III. DISPOSITION
With the exception of the required correction of Lockhart's presentence custody credits, the judgment is otherwise affirmed. The Clerk of the Alameda County Superior Court is ordered to modify the judgment to reflect custody credits of 2097 days and to prepare and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
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Bruiniers, J.
We concur:
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Jones, P. J.
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Simons, J.