Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA084047, John T. Doyle, Judge. Affirmed with direction.
Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Following a jury trial, Tommy Bonifacio Lopez (appellant) was convicted of second degree robbery with the use of a firearm (Pen. Code, § 211) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury also found that both offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§§ 186.22, subd. (b)(1)(C) & (A)), and that during the commission of the robbery, appellant and a principal personally used a firearm (§§ 12022.53, subds. (b), (e)(1)). Appellant was sentenced to 23 years in prison. He appeals, contending that there is insufficient evidence to support the gang and firearm enhancements and the prosecutor committed misconduct during closing argument. He claims the court erred by refusing to order a bifurcated trial on the gang enhancement, failing to instruct the jury that a witness was an accomplice as a matter of law, failing to provide the jury with a complete readback of the testimony it requested, and denying his Miranda motion to suppress statements he made to police. He contends that the cumulative effect of all the errors deprived him of a fair trial. Finally, he argues that the abstract of judgment improperly reflects a sentence relating to a firearm enhancement on count 2. We order the abstract of judgment corrected and affirm.
All further undesignated statutory references are to the Penal Code.
Miranda v. Arizona (1966) 384 U.S. 436.
FACTUAL BACKGROUND
In the evening of March 26, 2005, 15-year-old Gustavo Chaidez was working behind the counter at Durango Burger on Long Beach Boulevard in Compton. Sometime between 6 and 7 p.m., two men entered and demanded money from Chaidez. Both were wearing bandanas over their faces. The taller of the two men had a gun. The shorter of the two men took $600 from the cash register. They walked out and Chaidez saw one of them get into a truck. Chaidez heard gunshots as the truck sped away. After the robbery, Chaidez discovered that a cell phone and cash which he had placed on a counter were gone.
Chaidez reported the incident to Los Angeles County Sheriff’s Deputy Esmarelda Lopez that evening. A couple of months later, he spoke with Detective Joseph Martinez. Chaidez described the taller robber as six feet tall with a blue bandana. The shorter robber was about five feet six inches tall.
On May 9, 2005, Martinez interviewed appellant in connection with another incident. Appellant initially cooperated, then became evasive. When Detective Martinez asked him if he was in a gang, he said he was and identified Francisco Ramirez and Ernesto Mejorado as fellow gang members. Detective Martinez executed a search warrant on appellant’s grandmother’s house on Long Beach Boulevard in Compton. He recovered bandanas from a car parked in her driveway. Inside the home there was graffiti with the letters KAM.
At trial, Chaidez testified that he could not identify either of the robbers.
Appellant’s former girlfriend, Jessika Merrel, testified that she had lived with appellant for a brief period in 2005 in his grandmother’s home in Compton and later in a nearby apartment. In April 2005, she moved out and stopped dating appellant. Among the people who lived in appellant’s grandmother’s house were Ramirez and Mejorado. Ramirez had a KAM tattoo on the back of his head. Appellant was a few inches taller than Ramirez and had a lighter complexion. Merrel knew that appellant’s family members belonged to the KAM gang but she had never heard appellant talk about the gang. She explained that she thought he had stopped participating in gang activities during their relationship.
Merrel described an incident which occurred in March 2005. Appellant and Ramirez picked her up from work at approximately 11 p.m. in a white truck that belonged to appellant’s sister. Appellant drove to Durango Burgers, which was close to his grandmother’s house. He and Ramirez got out of the truck, and he told Merrel to drive. Merrel heard gunshots and saw appellant and Ramirez running back to the truck wearing bandanas. Appellant was wearing a black bandana and Ramirez was wearing a blue bandana. Ramirez was holding a silver gun. Merrel had seen appellant cleaning this gun before but he had told her it did not work. The truck vibrated as if it had been hit by a bullet. Someone was shooting at the truck, and appellant told her to drive to his grandmother’s house. When they got to the house, appellant and Ramirez counted out some money. No one said the money was for the KAM gang or that the proceeds were being split with the other members.
Detective Martinez interviewed Merrel in May 2005 on an unrelated matter. She told him about the robbery at Durango Burger. The tape recording of the interview was played for the jury. In the interview, she said that appellant and Ramirez had about $800 in cash. At trial, she said she did not remember how much money they had.
Los Angeles Police Officer Larry Oliande testified as the prosecution’s gang expert. Officer Oliande had special training and knowledge about the KAM gang. KAM’s primary activities are narcotic sales, assaults with deadly weapons, drive-by shootings, robberies, murders, carjacking, and automobile theft. Officer Oliande testified that as a result of a January 2003 gang injunction, KAM was moving outside its territory in East Los Angeles and into other areas, including Compton. When gangs move into a new area, they set up “offices” or “clubhouses” and commit crimes to instill fear in the new community. The area surrounding appellant’s grandmother’s house was a “weak” area which was not controlled by another gang. In Officer Oliande’s opinion, the armed robbery of a restaurant committed by a gang member with a gang tattoo on the back of his head will enhance the reputation of the gang and of the persons committing the robbery. Officer Oliande believed appellant, Ramirez, and Mejorado were all KAM members.
DISCUSSION
I. Bifurcation of the Gang Enhancement
Prior to trial, appellant moved to bifurcate the gang allegation from the substantive charges, arguing that evidence relating to the gang was not relevant to the issue of guilt. The prosecutor argued that the motive for the robbery was to establish gang ties in the neighborhood. In addition, appellant’s membership in the gang was relevant to establish his identity as one of the participants in the crime.
The court denied the motion to bifurcate, recognizing that the defense had the burden to show a substantial danger of prejudice. The court found the gang evidence was relevant to the issue of identity in that the prosecution was relying on the testimony of Merrel, and the fact that appellant and Ramirez were in the same gang corroborated her identification of the two as the robbers. The court also noted the proffered testimony of the expert as to the gang motive for the crime. The court concluded that the prejudicial effect of the evidence did not outweigh its probative value.
A trial court may bifurcate a trial of a gang enhancement if the evidence offered to establish a pattern of criminal gang activity is unduly prejudicial or is not relevant to the principal offense. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) In this case, Merrel’s and Officer Oliande’s testimony regarding the KAM gang established the motive and provided evidence of identity. This was relevant to the question whether appellant was guilty of the robbery and possession of a firearm. As the court pointed out, the evidence relating to the identity of the robbers took on greater importance given that they covered their faces and the victim was unable to identify the perpetrators. The evidence relating to appellant’s living situation, the fact Ramirez lived with him, and the proximity of appellant’s home to the burger stand were part and parcel of the explanation of how and why the crime unfolded. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550-1551; People v. Martin (1994) 23 Cal.App.4th 76, 81-82.) Generally, where a court determines the evidence is cross-admissible, any inference of prejudice is dispelled. (See People v. Marshall (1997) 15 Cal.4th 1, 28.)
We agree with the trial court that the gang evidence was not inflammatory and its prejudicial effect, if any, did not outweigh its probative value.
II. Sufficiency of the Evidence for the Gang Enhancement
Appellant contends there is insufficient evidence to support the jury finding on the gang enhancement. He correctly points out that if the gang enhancement is stricken, his sentence pursuant to section 12022.53, subdivision (e)(1) cannot stand. He argues there is no evidence that the crimes were committed for the benefit of the gang or that he had the specific intent to benefit the gang by his participation.
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) The same test applies when considering whether sufficient evidence supports a finding that a section 186.22 gang enhancement is true. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
The prosecution’s expert, Officer Larry Oliande, testified that the KAM gang originated in the area of East Los Angeles. As the result of a gang injunction issued in January 2003, the gang began to set up shop in other areas, including Bell Gardens, Maywood, Van Nuys, and Compton. He explained that the gang committed crimes in a particular neighborhood in an effort to claim the territory and to intimidate the members of the local community. Once KAM moved into a new area, they set up “offices” or “clubhouses” to help solidify its presence.
Oliande told the jury that individual gang members commit crimes to enhance their reputation within the gang and the gang community. By committing a serious crime, the member proves his or her loyalty to the gang by putting in work for the gang.
Oliande explained that the robbery of the burger stand was committed for the benefit of the KAM gang. One of the perpetrators, Ramirez, was an identified KAM member and bore the tattoo “KAM” across the back of his head. The burger stand was located in KAM territory, and the robbery served to enhance the participants’ status in the gang and the gang’s reputation for violence in the neighborhood. Appellant was a trusted member of the gang, as evidenced by his participation. Gang members will not commit a robbery with anyone who is not believed to be loyal to the gang.
Appellant complains that the officer could not establish that the gang’s reputation was actually enhanced as a result of the robbery or that it benefited from the commission of the crime. No such evidence was required. Whether Ramirez and appellant were successful in their quest to enhance the gang’s status is of no import. They must merely have the intent to do so. He also argues there is no evidence of his intent to benefit the gang. The following facts provide sufficient circumstantial evidence that appellant had the requisite criminal intent: (1) he committed the crime with a known gang member; (2) the crime was committed in the gang’s territory; and (3) the commission of the crime enhanced the gang’s reputation. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Finally, appellant suggests that there must be evidence that he intended to promote or assist criminal conduct other than the charged crime. We concluded in People v. Romero (2006) 140 Cal.App.4th 15 that the statute requires a showing the perpetrator intended to assist in any criminal conduct by gang members. That condition was met by proving the accused intended to assist in the commission of the charged crime. (Id. at pp. 18-20.) We see no reason to revisit the issue.
The evidence is sufficient to sustain the jury finding that appellant acted with the intent of benefiting the gang.
III. Miranda
Los Angeles County Sheriff’s Detective Joseph Martinez interviewed appellant on May 9, 2005, at the county jail, where appellant was in custody for an unrelated crime. He interviewed appellant about another crime involving Mejorado and Ramirez for about 15 minutes. Appellant was not a suspect. Detective Martinez turned on a recording device but it did not operate properly. Detective Martinez did not read appellant his Miranda rights. During this interview, appellant admitted he was a KAM gang member and that Ernesto Mejorado and Francisco Ramirez were fellow gang members and his “road dog” and “homeboy” respectively. He then asked to go back to his room, and was allowed to do so. After an Evidence Code section 402 hearing, during which appellant sought to suppress his admission that he was a KAM member, Detective Martinez was allowed to testify that he had a conversation with appellant, the conversation had nothing to do with the subject of this trial, and that appellant had admitted that he, Mejorado, and Ramirez were members of KAM.
Citing Mathis v. United States (1968) 391 U.S. 1, appellant contends that because he was in custody, Detective Martinez was required to give him Miranda warnings. We disagree. A more recent lower federal court ruling and a state appellate court decision have carved out exceptions to the broad rule stated in Mathis. (Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424 (Cervantes); People v. Fradiue (2000) 80 Cal.App.4th 15 (Fradiue). The cases hold that Miranda warnings are required where there is an extra degree of restraint imposed on the inmate in an attempt to force him or her to participate in the interrogation. “Four factors are significant in this inquiry: (1) the language used to summon the inmate for questioning, (2) the physical surroundings of the interrogation, (3) the extent to which the inmate is confronted with evidence of his guilt, and (4) the additional pressure exerted to detain him.” (Fradiue, supra, 80 Cal.App.4th at p. 20.)
Detective Martinez went to the facility where appellant was housed and requested a visit with him. The interview took place in a room which the chaplain uses to converse with inmates at the facility. Detective Martinez did not confront appellant with evidence of his guilt for the murder the detective was investigating. Indeed, appellant was being interviewed as a witness. Once appellant asked if he could return to his room, Detective Martinez did not object to his doing so.
Appellant attempts to distinguish Cervantes and Fradiue by arguing that the detective is not a jail official and he was not investigating misconduct within the custodial facility. However, neither case suggests its holding is limited to those circumstances. As we have noted, the crucial question is whether the interviewer exerts a greater degree of restraint on the inmate than is otherwise inherent in the inmate’s custody status. We conclude that appellant’s custody status alone did not require the giving of a Miranda advisement.
Appellant also argues that Miranda warnings were required because he was the subject of a police interrogation. Again, we disagree. Detective Martinez had information that two murder victims were connected to a house in which appellant had once lived. The detective was attempting to ascertain who else lived in the home. He already knew that the primary suspects in the homicides, Mejorado and Ramirez, were KAM members who had lived with appellant in the home in question. When appellant was reluctant to confirm that fact, Detective Martinez attempted to find out why appellant, who had been cooperative at the outset, was no longer forthcoming. He asked appellant if he was a member of the same gang. After appellant answered that he was, the interview ended at appellant’s request. Detective Martinez’s question was focused on understanding appellant’s reluctance to speak with him. The question was not relevant to any charge for which appellant was either in custody or a suspect. There was no Miranda violation. (See People v. Wader (1993) 5 Cal.4th 610, 637.)
IV. Instruction on Accomplice Testimony
Appellant contends that Merrel was an accomplice as a matter of law, and the court should have instructed the jury with CALCRIM No. 335—“Accomplice Testimony: No Dispute Whether Witness Is Accomplice,” instead of CALCRIM No. 334 which is entitled “Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice.”
The instruction provides in pertinent part: “You may not convict the defendant of [insert crimes] based on the (statement[ or] testimony) of an accomplice alone. You may use the (statement[ or] testimony) of an accomplice to convict the defendant only if: [¶] 1. The accomplice’s (statement[ or] testimony) is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice’s (statement[ or] testimony); [¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crime[s]. [¶] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact (mentioned by the accomplice in the statement[ or testimony] about which the witness testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] [The evidence needed to support the (statement[ or] testimony) of one accomplice cannot be provided by the (statement[ or] testimony) of another accomplice.] [¶] Any (statement[ or] testimony) of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that (statement[ or] testimony) the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.”
The instruction given was: “Before you may consider the testimony of Jessika Merrel as evidence against the defendant Lopez, you must decide whether Jessika Merrel was an accomplice to those crimes. A person is an accomplice if he or she is subject to prosecution for [the] identical crime charged against the defendant. Someone is subject to prosecution if [he] or she personally committed the crime or if, one, he or she knew of the criminal purpose of the person who committed the crime and, two, he or she intended to and did in fact aid, facilitate, promote, encourage or instigate the commission of the crime or participate in a criminal conspiracy to commit the crime. The burden is on the defendant to prove that it is more likely than [not] that Jessika Merrel was an accomplice. An accomplice does not need to be present when the crime is committed. On the other hand, a person’s not an accomplice just because he or she is present at the scene of a crime; even if he or she knows that the crime will be committed or is being committed and does not stop it. A person may be an accomplice even if he or she is not actually prosecuted for the crime. If you saw that a witness was not an accomplice, then supporting evidence is not required and [you] should evaluate his or her testimony as you would that of any other witness. If you decide that a witness was an accomplice, then you may not convict the defendant of robbery nor ex-felon in possession of a firearm based on his or her testimony alone. You may use the testimony of an accomplice to convict the defendant only if, one, the accomplice’s testimony is supported by other evidence that you believe; two, that the supporting evidence is independent of the accomplice’s testimony; and, three, that supporting evidence tends to connect the defendant to the commission of the crime. Supporting evidence, however, may be slight. It does not . . . need to be enough by itself to prove that the defendant did the charged crimes, and it does not need to support every fact about which the accomplice testified. On the other hand, it is not enough that the supporting evidence merely show[s] that the crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not however arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence.”
In ruling that CALCRIM No. 335 was not required, the court stated, “Of course your position is that you’ve, by preponderance, demonstrated she is an accomplice as a matter of law, and all the elements have been met. I am not inclined to find that based on the facts and the law. . . . You have a lot there to argue, but not so much for me to say she is also [an] accomplice as a matter of law, per [se], and I won’t say that, but I will give you the disputed accomplice instruction, and I am disinclined — I will not give the undisputed over your objection. [¶] . . . I am saying there is a dispute because, clearly, her intent is questionable.
Whether a person is an accomplice is “a question of fact for the jury in all cases unless ‘there is no dispute as to either the facts or the inferences to be drawn therefrom.’ [Citation.]” (People v. Hayes (1999) 21 Cal.4th 1211, 1271.) A trial court can determine as a matter of law that a witness is an accomplice “only when the facts regarding the witness’s criminal culpability are ‘clear and undisputed.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 679.)
There was simply no clear evidence that Merrel was an accomplice. Her testimony was the only evidence that established she was the driver of the getaway car. Neither appellant nor Chaidez placed her at the scene. She did not drive to the restaurant, she did not share in the proceeds, and there is no evidence that she knew of any plan to rob the restaurant. Appellant contends, “it is inconceivable that when she saw them running back to the car with bandanas over their faces, saw Ramirez carrying a gun, and heard gunfire, she did not realize they had just robbed the hamburger stand.” However, this fact alone does not establish that Merrel intended to aid the robbery by driving from the scene. It is certainly just as likely that Merrel fled the scene to avoid the gunfire. She testified she sped away after she determined that someone was shooting at them, and that appellant told her to drive to his grandmother’s house. The facts concerning her possible criminal culpability are far from “clear and undisputed.” Thus, the trial court correctly left the question whether she was an accomplice to the jury. (People v. Avila (2006) 38 Cal.4th 491, 565.)
V. Prosecutorial Misconduct
Appellant cites numerous instances of alleged prosecutorial misconduct during closing argument. However, his counsel did not object during trial or request a curative instruction. Thus, appellant has forfeited his right to raise the issue on appeal. (People v. Frye (1998) 18 Cal.4th 894, 969-970.) In any event, his claims are without merit.
Appellant contends that the prosecutor improperly vouched for the credibility of Merrel by arguing: “Now, what else can defense counsel argue? He can argue that [Merrel] is an accomplice, that [Merrel] helped commit this robbery. She was in on it. So when she sat on the stand and cried, that was all fake. She fooled the district attorney’s office which is why she’s not a defendant sitting next to the defendant.”
Fairly read, these comments do not indicate that the prosecutor was asking the jury to believe Merrel based on his office’s stamp of approval on her testimony. Nor did he attempt to lead the jury to think that he had personal knowledge outside the record that supported her version. The prosecutor merely argued that her testimony and her demeanor on the stand were consistent with honesty and reliability and that the expected defense argument was without substance. This was not misconduct. (People v. Frye, supra, 18 Cal.4th at p. 972.)
Next, appellant argues that the prosecutor invited the jury to ignore the law regarding accomplice testimony by saying, “Keep in mind, Ladies and Gentlemen, to argue this to you, the defendant is admitting they are guilty because the defendant is saying [Merrel] was an aider and abettor, but for [Merrel] to aid and abet that means the defendant did it. If counsel argues to you that [Merrel] was an aider and abettor, he is conceding his client did the robbery, and then he is saying, ‘Yes, my guy did the robbery, but I will make a very technical legal argument to you that you’ve [got] to let him go because there is no other evidence and that is garbage.’ . . . So even though my guy is guilty, even though I am conceding he is there, vote guilty — vote not guilty because you’ve [got] to under the law. . . . That’s what you have to believe to vote not guilty and walk the defendant out the door. That’s what counsel will argue to you, ‘My client is guilty, they committed a robbery, but the People haven’t proved it because the law requires corroboration.’”
These remarks were all part of a lengthy argument by the prosecutor that there was insufficient evidence to find that Merrel was an accomplice. He outlined the facts the jury had to consider in weighing Merrel’s testimony. He did not instruct them to ignore the law, however, but simply argued that Merrel’s testimony and demeanor directly contradicted any inference that she was an accomplice. In any event, had appellant objected and requested an admonition, any misimpression could have been corrected. (People v. Samayoa (1997) 15 Cal.4th 795, 842-846.)
Finally, appellant contends that the prosecutor committed Griffin error by referring to appellant’s failure to take the witness stand. The comments were as follows: “Now, Ladies and Gentlemen, I want to give you a warning. The defense has no duty to call any witnesses in any way. That’s the way our system is set up. But under this exception, if he wants to prove something, he could have called witnesses, and he chose not to, and that’s fine, that’s absolutely acceptable, but then he is left with the evidence we have.” This was not an invitation to the jury to infer guilt from appellant’s silence and was proper comment on the state of the evidence. (People v. Frye, supra, 18 Cal.4th at p. 977.)
Griffin v. California (1965) 380 U.S. 609.
VI. Jury Request for Readback
The jury recessed to begin deliberations on July 18, 2006, at 9 a.m. On July 18, 2006, it requested a readback of several parts of the trial, including Chaidez’s and Merrel’s testimony and any testimony about who was holding a gun. When the court asked the foreperson about the request, he explained: “It’s in regard to the physical descriptions given by the witnesses, only the physical descriptions, not the entire testimony.” After portions of the testimony were read back, defense counsel told the court that he “thought there was some read-back missing” and gave the court reporter the portions he thought were omitted. After argument by counsel, the court called the jury into the courtroom. It had already signed the verdict forms. The court explained that the jury did not hear all the testimony that it had originally requested, and asked if the jury would like to hear the portion it had missed. The jury retired again to discuss the issue, and the foreperson returned with the following statement: “No. We are satisfied with what we heard. We are satisfied with our verdicts.”
Appellant contends that the trial court erred in failing to read all of the requested testimony back to the jury because the omitted readback was favorable to the defense case.
Pursuant to section 1138, the trial court must satisfy any requests of the jury for rereading of testimony. (People v. Frye, supra, 18 Cal.4th at p. 1007.) Here, there is no evidence that the court willfully omitted portions of testimony. As soon as the error was called to its attention by defense counsel, the court alerted the jury and accurately informed it of the nature of the error. Because the jury specifically stated that it did not want to hear any more testimony, the court did not have to require them to listen to it. (People v. Butler (1975) 47 Cal.App.3d 273, 283, disapproved on another point in People v. Hillhouse (2002) 27 Cal.4th 469, 504-505; see People v. Ayala (2000) 23 Cal.4th 225, 289.)
VII. Cumulative Error
Inasmuch as we have concluded that none of appellant’s claims of error has merit, we also reject his contention of cumulative error. (People v. Frye, supra, 18 Cal.4th at pp. 978-979; People v. Bradford (1997) 14 Cal.4th 1005, 1057.)
VIII. Sentencing
Appellant contends, and the People concede, that the abstract of judgment erroneously reflects a stayed 10-year sentence on count two for a section 12022.53 firearm enhancement. However, the jury was not asked to make findings on a section 12022.53 enhancement on count 2. Accordingly, the abstract of judgment must be corrected to properly reflect the judgment. (People v. Martinez (2003) 31 Cal.4th 673, 704.)
DISPOSITION
The superior court is directed to prepare a corrected abstract of judgment to delete any reference to a section 12022.53 firearm enhancement on count two, being a felon in possession of a firearm. The court is to forward a corrected copy of the abstract to the Department of Corrections. The judgment, as corrected, is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.