Opinion
G055000
01-03-2019
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS RAMIREZ, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rodgers, Christopher Beesley and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF1833) OPINION Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed as modified. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rodgers, Christopher Beesley and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Jorge Luis Ramirez of more than a dozen sex offenses he committed against his two young stepdaughters over a five-year period, as well as one count each of possessing child pornography and using a minor to record child pornography. A number of photographs recovered from his cell phone depicted one of his stepdaughters orally copulating an adult male. On appeal, he contends he is entitled to a new trial because the court instructed the jury it could consider his commission of certain charged offenses as proving he has a propensity to commit sex offenses. (See CALCRIM No. 1191.) We cannot agree. His arguments have previously been rejected by our Supreme Court in People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro). Additionally, we reject his further contentions that the trial court erred in instructing the jury with a modified version of CALCRIM No. 375 (evidence of uncharged offenses), and his sentence, which includes over 100 years in prison, constitutes cruel and unusual punishment. However, we find that the abstract of judgment must be modified to reflect the 25 years to life term imposed on count 1 was stayed pursuant to Penal Code section 654. In all other respects, the judgement is affirmed
All undesignated statutory references are to the Penal Code unless otherwise stated.
FACTS
Defendant met Sandra N. in 2008. They married the next year. When they met, Sandra's daughters lived in Mexico. The girls, Y.R. and I.R., moved to California in 2009, to live with Sandra and defendant. Y.R. was four years old when she moved to California, and I.R. was three years old. In 2011, a son was born to Sandra and defendant.
We refer to the victim's mother by her first name and the victims by their initials to protect their privacy interests. (See Cal. Rules of Court, rule 8.90(b)(11).)
Defendant "started touching" I.R.'s vagina with his "porunga" (penis) and finger when she was five years old. I.R. demonstrated how defendant used his finger when he touched her vagina. He used his middle finger, rubbing in a back and forth motion. On occasion, defendant wore a "balloon" (condom) when touching I.R.'s vagina with his penis. I.R. said the condoms came in wrappers. On most occasions, he first had I.R. lick his penis before he put the condom on. When she orally copulated defendant, he would touch her breasts and rub her vagina. There were also times when he held her head, pulling and pushing it.
When defendant put a condom on, he had sexual intercourse with I.R. I.R. said she cried most of the time defendant molested her, but after she "got used to it," she "didn't have to cry." When defendant took off the condom, I.R. saw him ejaculate. He then put the condom in a towel and hid it under the bed, or in the dirty clothes. Other times he wrapped it in toilet paper and flushed it down the toilet, or put it in the trash.
Defendant also kissed I.R. on the mouth, with his mouth open. He not only put his tongue inside her mouth, he also put his mouth on her breasts and licked her vagina. In addition to putting his penis in her mouth and having sexual intercourse with her, defendant also sodomized I.R. He would do so after telling her to "go like a dog," i.e., get on her hands and knees. She told him it hurt.
Defendant told I.R. not to tell her mother. He said he would go to jail if she told and he would take her mother away from her. I.R. did not initially tell her mother because she was afraid she would lose her if she did. She eventually told her mother one afternoon, because she could not sleep and was sad when defendant took Y.R. to the bedroom. On that occasion, defendant carried Y.R. and I.R. grabbed onto Y.R.'s hand in an attempt to pull Y.R. away from defendant, but defendant threatened to hit I.R. I.R. saw defendant molest Y.R.
The acts involving I.R. started when she was five years old and ended in October or November 2015. The last time happened while her mother, brother, and sister went to the store. I.R. stayed home with defendant. He sodomized her and quickly cleaned himself when Sandra returned home and knocked on the door. I.R. believes defendant hid the condom in a pocket.
That night, I.R. and Y.R. discussed the situation. I.R. said she wanted to tell their mother, but Y.R. was afraid they would be taken from her.
I.R. said she orally copulated defendant more than 10 times, he sodomized her more than 10 times, and they had sexual intercourse more than 10 times during that period. Additionally, defendant showed I.R. pornography at least once.
Y.R. has tried to forget being sexually assaulted, but she remembers defendant started molesting her when she was five years old. Defendant would put his hand in her underwear and touch her vagina. He also touched her breasts.
Defendant forced Y.R. to orally copulate him more than 20 times. She did not want to, but defendant pulled on her lips to get her to open her mouth. She saw him ejaculate. He then wiped himself with a towel and put it in the dirty clothes, at which point Y.R. would run out of the room.
I.R. once saw Y.R. orally copulate defendant. I.R. was in the living room and the curtain between the living room and the room in which defendant and Y.R. were in was open. Defendant was standing. Y.R. was in a "prayer-like" position with her hands on his penis while she licked it. Defendant then closed the curtain and I.R. heard defendant tell Y.R. to take off her clothes.
Defendant also had sexual intercourse with Y.R. He did not use a condom when having sex with Y.R. until she started menstruating at 11 years old. The last time they had intercourse, defendant woke her up before her alarm clock went off. He started touching her and went back to his room to retrieve a condom. He dropped the condom wrapper on the ground, grabbed Y.R., and had intercourse with her. When he finished, he picked up the wrapper and put it in the trash.
Y.R. said defendant had intercourse with her more than five times and she orally copulated him more than 20 times. She said there was a time when she and I.R. both orally copulated defendant at the same time. He put his hand on Y.R.'s head and pushed it down. Then he made I.R. orally copulate him.
Defendant also put his mouth on her vagina and Y.R. could feel his tongue moving around. He kissed her too. She tried to push him away by using her feet, but failed.
Defendant used his cell phone to take photographs or recordings of Y.R. while molesting her. She heard the phone make a noise when he pushed the record button. She saw defendant watch the videos he took and saw him delete photographs or videos. The LG cell phone defendant used was replaced by an iPhone Y.R.'s mother gave to defendant. The LG cell phone was searched and items of interest were recovered, including a video fragment of a penis entering a vagina, as well as a number of photographs of Y.R. in different clothing and orally copulating a penis, and a photograph of an erect male penis on a child's buttocks. An expert testified one of the photographs depicted a child under 10 or 12 years old and another depicted a child under 10 years of age.
After the last incident, I.R. told Sandra what happened and Sandra searched for the last used condom, but only found the wrapper. Y.R. said it was the same wrapper defendant discarded that morning.
Sandra said she and defendant had sexual intercourse the night before he last molested Y.R. They did not use a condom. They never used condoms. The condoms were in the house only because they had been given to Sandra at a medical clinic. After being told about the molestations, Sandra found condoms were missing. She found a condom wrapper in the trash, placed it into a small bag, and took her daughters to the clinic. Sexual assault kits were prepared. A swab taken from defendant's penis in the early morning hours the day after the last incident involving Y.R. was compared to a buccal swab from Y.R. There was a mixture of DNA from at least two people on the penile swab. The expert assumed one of the contributors was defendant. She compared the second contributor's DNA with that of Y.R. and concluded Y.R. could not be eliminated as the contributor. The chance that the contributor was not Y.R. is one in 500 billion unrelated individuals.
In connection with defendant's acts against I.R., the jury convicted defendant of two counts of sexual intercourse or sodomy with a child 10 years old or younger (§ 288.7, subd. (a), counts 1 & 3), one count of rape of a child under 14 years of age by rape (§ 269, subd. (a)(1), count 2), oral copulation or sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b), count 4), oral copulation of a child under 14 years of age (§ 269, subd. (a)(4), count 5), and two counts of lewd act involving a child (§ 288, subd. (a), counts 6 & 7).
In connection with defendant's acts against Y.R. the jury convicted defendant of two counts of oral copulation on a child 10 years of age or younger (§ 288.7, subd. (b), counts 8 & 13), one count of rape of a child under 14 years of age (§ 269, subd. (a)(1), count 9), oral copulation of a child under 14 years of age (§ 269, subd. (a)(4), count 10), two counts of lewd act involving a child (§ 288, subd. (a), counts 11 & 14), and one count of sexual intercourse or sodomy on a child 10 years of age or younger (§ 288.7, subd. (a), count 12). The jury also found defendant guilty of possession of child pornography (§ 311.11, subd. (a), count 15), and using a minor to create child pornography (§ 311.4, subd. (c), count 16). Additionally, the jury found a multiple victim enhancement true as to four of the sex offenses. (§ 667.61, subds. (b), (e).)
DISCUSSION
1. Jury Instruction Issues
A. Modified CALCRIM No. 1191
The trial court instructed the jury with a modified version of CALCRIM No. 1191, as follows: "The People presented evidence that the defendant committed the charged offenses in Counts 2, 5, 6, 7, 9, 10, 11, 14, and 16. These offenses are defined for you elsewhere in these instructions. The People must prove each of the charged offenses beyond a reasonable doubt.
"If you decide that the defendant committed any one or more of the above listed charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit any of the other above listed charged offenses.
"If you conclude that the defendant committed any one or more of the above listed charged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any of the other above listed charged offense. The People must still prove each charge beyond a reasonable doubt."
Defendant contends the trial court prejudicially erred in giving this instruction, arguing the instruction violated the presumption of innocence, permitted conviction based on evidence that did not prove guilt beyond a reasonable doubt, and denied him due process and a fair trial. According to defendant, his convictions in counts 2, 5, 6, 7, 9, 11, and 14 should be reversed because the jury should not have been instructed it could consider his offenses against I.R. as evidence that he committed crimes against Y.R. Defendant's argument is based on the dissenting and concurring opinions of Justice Corrigan joined by Justice Werdegar, and Justice Lui in Villatoro, supra, 54 Cal.4th 1152.
CALCRIM No. 1191 is based on Evidence Code section 1108, which permits a jury to consider a defendant's uncharged sexual offense as evidence of his propensity to commit a charged sexual offense. (Villatoro, supra, 54 Cal.4th at p. 1156.) "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1108, subd. (a).) Evidence Code section 352 authorizes the trial court to exclude relevant evidence when "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Like the instruction given in Villatoro, the present instruction modified CALCRIM No. 1191 to permit the jury to consider proof of a charged crime as evidence of the defendant's propensity to commit other charged sex offenses. (See Villatoro, supra, 54 Cal4th at p. 1156.) Whether such an instruction is permitted by Evidence Code section 1108 was decided adversely to defendant's position by our Supreme Court in Villatoro. (Villatoro, at p. 1160.) The Villatoro court held Evidence Code section 1108 permits the jury to consider evidence of a charged sex offense as propensity evidence, and the modified instruction accurately stated the law. (Villatoro, at pp. 1162, 1169.) In doing so, the court necessarily found the instruction did not violate due process (id. at p. 1160) and expressly found the instruction did not impinge upon a defendant's presumption of innocence (id. at p. 1168). Defendant acknowledges this court is bound to follow the majority opinion in Villatoro. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Consequently, we therefore reject defendant's argument pursuant to the holding in Villatoro, notwithstanding counsel's failure to object to the instruction (People v. Benavides (2005) 35 Cal.4th 69, 111 [defendant may raise issue of instructional error affecting his substantial rights even if counsel failed to object to the instruction]) and the well-reasoned dissents in Villatoro. (Villatoro, at pp. 1169-1182 (conc. & dis. opn. of Corrigan, J.), 1182-1185 (conc. & dis. opn. of Liu, J.).)
B. CALCRIM No. 375
Defendant next contends the trial court prejudicially erred in instructing the jury that if it found beyond a reasonable doubt he possessed child pornography (count 15), it may, but is not required to, further consider that evidence for the limited purpose of determining whether he acted with the intent to commit a lewd act on a child under 14 years of age, or whether he had a motive to commit the other charged offenses. According to defendant, the instruction permitted the jury to bootstrap its finding of guilt on count 15, the possession of child pornography, into guilty verdicts on the remaining counts (i.e., the jury was free to find defendant guilty of the sex offenses based on finding him guilty of possessing child pornography). He asserts all his convictions, with the exception of counts 13 and 16 should be reversed. The argument is without merit.
While character evidence is generally inadmissible to prove defendant acted in conformance with the character trait on a given occasion (Evid. Code, § 1101, subd. (a)), evidence otherwise prohibited by that section is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).) Thus, when evidence is admitted pursuant to Evidence Code section 1101, subdivision (b), it is not admitted to prove a defendant's disposition to commit a charged offense. Rather, CALCRIM No. 375 instructs the jury how to use evidence admitted pursuant to Evidence Code section 1101, subdivision (b), and is a proper statement of the law. (See People v. Carpenter (1997) 15 Cal.4th 312, 382.)
As modified in this case, the instruction provided: "The People presented evidence that the defendant committed the charged offense of Possession of Child Pornography in violation of [section] 311.11[, subdivision] (a). This offense is defined for you elsewhere in these instructions. The People must prove each of the charged offenses beyond a reasonable doubt.
"If you decide that the defendant committed the charged offense of [section] 311.11[, subdivision] (a), beyond a reasonable doubt, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:
"The defendant acted with the intent to commit lewd act on a child under 14 [or;]
"The defendant had a motive to commit the other alleged offenses in this case[.]
"If you conclude that the defendant committed the charged offense of Possession of Child Pornography, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any other charged offenses. The People must still prove each charge beyond a reasonable doubt."
It is worth noting that CALCRIM No. 375 permits the use of evidence of an uncharged offense to prove intent or motive when the jury finds the uncharged offense proven by a preponderance of the evidence. (CALCRIM No. 375.) The modified instruction given in the present matter inured to defendant's benefit inasmuch as it permitted the jury to consider defendant's possession of child pornography for the purpose of determining whether he had a motive or intent to sexually assault his young stepdaughters, but only if it determined beyond a reasonable doubt that he possessed child pornography.
Had defendant not been charged with possession of child pornography and the prosecutor introduced the same evidence of possession under Evidence Code section 1101, subdivision (b), there would have been nothing improper with instructing the jury it may consider such evidence to show defendant had a motive or intent to sexually assault both his stepdaughters. (People v. Memro (1995) 11 Cal.4th 786, 864 [the defendant's possession of sexual magazines and photographs of young males "admissible to show defendant's intent to molest a young boy in violation of section 288"].) That defendant was charged with possessing child pornography in addition to the sex offenses does not render the otherwise proper instruction improper. Possession of child pornography displaying the type of acts defendant is charged with committing is no less probative of his intent and motive to commit the charged sex offenses when the possession is a charged offense than when it is an uncharged offense. The relevance of the evidence for purposes of Evidence Code section 1101, subdivision (b), is determined by looking at the nature of the evidence and reasonable inferences to be drawn therefrom, not based on determining whether the evidence relates to an uncharged or charged offense.
In a multiple count case in People v. Catlin (2001) 26 Cal.4th 81, 153, the defendant sought the following special instruction: "'Evidence applicable to each offense charged must be considered as if it were the only accusation before the jury.'" Our Supreme Court found the trial court did not err in refusing the proposed instruction. (Ibid.) "Contrary to the import of the proposed special instruction, under Evidence Code section 1101 the jury properly could consider other-crimes evidence in connection with each count, and also could consider evidence relevant to one of the charged counts as it considered the other charged count. (See People v. Beagle (1972) 6 Cal. 3d 441, 456, overruled on other grounds in People v. Castro (1985) 38 Cal. 3d 301.)" (Catlin, at p. 153.) Thus, since a charged offense may also be considered for purposes of proving defendant's motive or intent in connection with other charged offenses, the instruction given in this matter accurately stated the law.
The instruction did not interfere with defendant's presumption of innocence or permit bootstrapping of verdicts. The jury was specifically instructed on reasonable doubt; that each count must be considered separately; to consider all the instructions together; that even if it found defendant possessed child pornography, that fact alone cannot justify a guilty verdict on any of the remaining counts; and that each charge must be proven beyond a reasonable doubt. There is no reasonable likelihood the jury understood the instruction as defendant urges—i.e., the jury would not have interpreted the instruction as permitting it to bootstrap a guilty verdict on count 15 into guilty verdicts on all other counts. (See People v. Kelly (1992) 1 Cal.4th 495, 525.)
2. Cruel and Unusual Punishment
A number of defendant's convictions carry indeterminate sentences. For example, sexual intercourse or sodomy on a child 10 years of age or younger carries a sentence of 25 years to life (§ 288.7, subd. (a); counts 1, 3 & 12), rape of a child under the age of 14 and seven or more years younger than defendant is punished with a term of 15 years to life in state prison (§ 269, subd. (a)(1), (b); counts 2 & 9), oral copulation on a child under 14 years of age and seven or more years younger than defendant is punishable by 15 years to life in prison (§ 269, subd. (a)(4), (b); counts 5 & 10), oral copulation or sexual penetration with a child 10 years of age or younger is punishable by 15 years to life in state prison (§ 288.7, subd. (b); counts 4, 8 & 13). Possession of child pornography is punishable by 16 months, two years or three years in prison (§§ 311.11, subd. (a), 18, subd. (a); count 15), as is use of a minor to create child pornography (§ 311.4, subd. (c), 18, subd. (a); count 16). Additionally, although lewd act on a child under the age of 14 years is normally punishable by three, six, or eight years in state prison (§ 288, subd. (a); counts 6, 7, 11 & 14), when a defendant is convicted of violating this section against more than one victim, as defendant was in this case, the penalty is increased to 15 years to life. Moreover, because multiple victims were involved here, consecutive sentences on certain counts were mandatory. (§ 269, subd. (c).) Defendant was not eligible for probation. (§ 667.61, subd. (h).)
The trial court sentenced defendant to an indeterminate term in state prison with a minimum term of 100-plus years. Defendant argues this sentence violates state and federal cruel and unusual punishment constitutional provisions. The Eighth Amendment to the United States Constitution declares: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (U.S. Const., 8th Amend.) This constitutional provision is "applicable to sentences for terms of years." (Lockyer v. Andrade (2003) 538 U.S. 63, 72.) Article I, section 17, of the California Constitution proscribes "[c]ruel or unusual punishment." A prison sentence runs afoul of article I, section 17, if it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.)
Defendant argues his sentence is unconstitutional because a defendant who commits a first degree murder with a firearm would receive a maximum punishment of 50 years to life. (§§ 187, subd. (a), 190, subd. (a), 12022.53, subds. (a)(1), (d).) Of course in defendant's example, the sentence is based on a single criminal act, the murder of one individual. Here, on the other hand defendant's offenses covered a five-year span. During that period of time defendant terrorized his two young stepdaughters, raping them, sodomizing them, orally copulating one of them, requiring both to orally copulate him, and warning them that if they told anyone what he was doing to them, they would be taken away from their mother.
On one such occasion, he required both girls to orally copulate him at the same time. --------
Prior to the sentence being imposed, defense counsel's sentencing brief stated the court "could deem the length of the [proposed 183 years to life plus three years] sentence cruel and unusual punishment," citing People v. Dillon (1983) 34 Cal.3d 441.) Counsel did not object to the sentence imposed by the court. Indeed, by merely referencing the California Supreme Court's decision in Dillon and stating the court "could" find the sentence urged by the prosecutor to be cruel and unusual, counsel did not raise the federal cruel and unusual punishment clause of the Eighth Amendment. Dillon was decided on California constitutional grounds. (See Dillon, at p. 489.)
The Attorney General argues defendant did not preserve the issue for appeal because there was no objection to the sentence imposed. We agree. (People v. Norman (2003) 109 Cal.App.4th 221, 229.)
Defendant, claiming counsel was ineffective if she failed to preserve the issue for appeal, asks us to forestall litigation on a petition for a writ of habeas corpus and address the issue even if we find it has not been preserved. We recognize we have the discretion to do so (People v. Norman, supra, 109 Cal.App.4th at pp. 229-230), but decline to exercise that discretion in this matter. "[A]n Eighth Amendment analysis requires a finding of 'gross disproportionality' between the offense and the offender and the punishment. [Citations.]" (Id. at p. 230.) In order to litigate effectively this issue, defendant must muster evidence indicating he does not deserve the sentence imposed. The only mitigation stated in the record on appeal is defendant's minimal criminal record: he successfully completed probation for a 2007 conviction for driving under the influence. More should be gathered on his behalf, if it exists, before litigating this issue. After all, a defendant making an Eighth Amendment claim faces an uphill battle (Harmelin v. Michigan (1991) 501 U.S. 957, 961, 994 [life sentence without possibility of parole for possession of 672 grams of cocaine upheld without consideration of the defendant's lack of a criminal record]), as does one challenging a sentence as a violation of the California's cruel or unusual punishment provision (People v. Wingo (1975) 14 Cal.3d 169, 174 [the defendant faces a "considerable burden" in attempting to challenge a penalty as cruel or unusual]).
3. Modification of the Abstract of Judgment
When the trial court imposed the sentence on count 1, the court imposed a term of 25 years to life and ordered the sentence stayed pursuant to section 654. The abstract of judgment does not reflect the stay. The Attorney General concedes the abstract of judgment should be modified to show the sentence on count 1 was stayed.
"[T]he reporter's transcript of the proceedings as prima facie evidence of such proceedings (Code Civ. Proc., § 273) stands as proof of the particular facts therein set forth until it is both contradicted and overcome by other evidence [citation] . . . ." (In re Evans (1945) 70 Cal.App.2d 213, 214.) "[W]hen . . . the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to the greater credence [citation]. Therefore whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case. [Citation.]" (Id. at p. 216.)
Here, the court stated its intent during defendant's sentencing. The court specifically stated it intended to stay pursuant to section 654 the 25 years to life term carried by a violation of the offense charged and found true in count 1. The abstract of judgment is contrary to the court's express pronouncement of judgment, which we presume is correct. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1422.)
We have the inherent power to order clerical errors corrected. Therefore, the abstract of judgment must be modified to reflect the sentence of 25 years to life imposed on count 1 was stayed pursuant to section 654.
DISPOSITION
The clerk of the superior court is directed to modify the abstract of judgment to reflect the sentence imposed on count 1 is stayed pursuant to section 654 and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. GOETHALS, J.