Opinion
H047280
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. DEREK VAUGHN RAYO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1902472, C1903142, & C1903677)
Pursuant to a written plea agreement that resolved three cases, appellant Derek Vaughn Rayo pleaded no contest to felony driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)) and several misdemeanor offenses. He also admitted two allegations that he had served prior county jail terms (Pen. Code, § 667.5, subd. (b) ) (hereafter "prior prison term enhancements"). Based on the plea agreement, the trial court sentenced Rayo to two years in the county jail under section 1170, subdivision (h)(5)(A), and imposed restitution fines, fees, and assessments. The trial court did not impose any time in custody for the prior prison term enhancements.
Unspecified statutory references are to the Penal Code.
On appeal, Rayo contends that, although his sentence did not include any custodial time for the two prior prison term enhancements, this court should remand his case and direct the trial court to strike them in light of Senate Bill No. 136 (2018-2019 Reg. Sess.) (Senate Bill 136). In addition, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Rayo contends that the trial court's finding that he had the ability to pay the restitution fines, fees, and assessments lacks substantial evidence.
For the reasons explained below, we agree that the two prior prison term enhancements under section 667.5, subdivision (b), should be stricken but reject Rayo's claim regarding the restitution fines, fees, and assessments.
I. BACKGROUND
The Santa Clara County District Attorney prosecuted Rayo in three cases that ultimately were resolved together.
The underlying facts of Rayo's offenses are not recounted here because they are not relevant to the issues in this appeal.
A misdemeanor complaint, filed February 6, 2019, alleged Rayo possessed heroin (Health & Saf. Code, § 11350, subd. (a); count 1), possessed methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), possessed Alprazolam without a prescription (Health & Saf. Code, § 11375, subd. (b)(2); count 3), possessed controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 4), and gave a false name to a peace officer (§ 148.9, subd. (a); count 5). (Case No. C1902472.)
A felony complaint, filed February 19, 2019, alleged Rayo, who had a prior conviction for a violation of Vehicle Code section 10851, took a vehicle without the owner's consent and with the intent to temporarily deprive the owner of possession (Veh. Code, § 10851, subd (a); count 1 [felony]), drove with a revoked or suspended license having twice previously been convicted of driving with a revoked or suspended license (Veh. Code, § 14601, subd. (a); count 2 [misdemeanor]), and resisted, delayed or obstructed an officer (§ 148, subd. (a)(1); count 3 [misdemeanor]). The complaint also included two allegations stating that Rayo had served prior county jail terms under section 1170, subdivision (h), for felony convictions (§ 667.5, subd. (b)). One of the prior jail terms had resulted from a conviction for battery with serious bodily injury (§ 243, subd. (d)) and the other from a conviction for auto theft (Veh. Code, § 10851). (Case No. C1903142.)
A misdemeanor complaint, filed February 27, 2019, alleged Rayo possessed heroin (Health & Saf. Code, § 11350, subd. (a); count 1), possessed controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 2), bought, received, concealed or withheld stolen property valued at less than $950 (§ 496, subd. (a); count 3), and acquired or retained personal identifying information with the intent to defraud (§ 530.5, subd. (c)(1)). (Case No. C1903677.)
On March 26, 2019, Rayo signed a negotiated plea agreement resolving all three cases. Under the agreement, Rayo entered pleas of no contest to all of the charged offenses and admitted the two prior prison term allegations, two prior convictions for driving on a suspended license, and a prior conviction for auto theft. In exchange for his no-contest pleas and admissions, Rayo would receive a sentence of two-years imprisonment to be served in the county jail. In addition, the plea agreement included a provision which Rayo initialed that stated he understood he would be ordered to pay various listed "fines, fees, and costs" and that he "do[es] not contest [his] ability to pay these fines and fees." The plea agreement did not contain any provision stating that it would be unaffected by future statutory changes.
On July 12, 2019, the trial court sentenced Rayo to the low term of two years in the county jail under section 1170, subdivision (h)(5)(A), for the violation of Vehicle Code section 10851, subdivision (a), alleged in count 1 in case No. C1903142. On counts 2 and 3 in that case, the trial court sentenced Rayo to 90 days in the county jail for each count, to be served concurrently. The trial court did not impose any custodial time for the prior prison term enhancements.
The minute order for Rayo's sentencing hearing and the abstract of judgment indicate the trial court, pursuant to section 1385, subdivision (b)(1), struck the additional punishment for the two prior prison term enhancements that Rayo had admitted under the plea agreement. However, the transcript of the sentencing hearing does not reflect this action by the trial court. Regardless, the orally pronounced sentence does not include any additional custodial time for the two admitted prior prison term enhancements.
Regarding the fines, fees, and assessments, for count 1 in case No. C1903142, the trial court imposed a $600 restitution fine (§ 1202.4, subd. (b)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), a $129.75 criminal justice administration fee (Gov. Code, §§ 29550, 29550.1, 29550.2), and a $4 emergency medical air transportation penalty assessment (Gov. Code, § 76000.10). For counts 2 and 3, the trial court imposed an additional $80 court operations assessment, a $60 criminal conviction assessment, and a $4 emergency medical air transportation penalty assessment.
In case No. C1902472, the trial court sentenced Rayo to 90 days in the county jail, to be served concurrently with case No. C1903142 and deemed the jail time served. In addition, the trial court imposed a $150 restitution fine plus a 10 percent administrative fee ($165 total), a $200 court operations assessment, a $150 criminal conviction assessment, a $129.75 criminal justice administration fee, a $200 criminal laboratory analysis fee plus penalty assessment (Health & Saf. Code, § 11372.5), and a $600 drug program fee plus penalty assessment (Health & Saf. Code, § 11372.7).
In case No. C1903677, the trial court sentenced Rayo to 90 days in the county jail concurrent with case No. C1903142. In addition, the trial court ordered Rayo to pay $446.03 in victim restitution subject to an administrative fee of up to 15 percent and imposed a $150 restitution fine plus a 10 percent administrative fee ($165 total), a $160 court operations assessment, a $100 criminal laboratory analysis fee plus penalty assessment, and a $300 drug program fee plus penalty assessment.
Rayo filed a notice of appeal on July 12, 2019. With leave of this court, Rayo subsequently requested and received a certificate of probable cause from the trial court and filed a notice of appeal with a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).)
II. DISCUSSION
Rayo raises two claims on appeal. He first asks this court to direct the trial court to strike the prior prison term enhancements in light of the postsentencing changes to section 667.5 effected by Senate Bill 136. He also seeks a hearing on his ability to pay the restitution fines, fees, and assessments because, in his view, the trial court's determination of that question was not supported by substantial evidence. We address each claim in turn.
A. Senate Bill 136 and the Prior Prison Term Enhancements
1. Background
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b) (hereafter section 667.5(b)), to limit prior prison term enhancements to only prior terms that were served for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b); Stats. 2019, ch. 590, § 1; People v. Lopez (2019) 42 Cal.App.5th 337, 341.)
Section 667.5 provides in part: "Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended."
Subdivision (a) provides for a threeyear term when both the new offense and the underlying prior conviction were among the violent felonies listed in subdivision (c), subject to a tenyear washout period. (§ 667.5, subd. (a).)
Rayo and the Attorney General agree that the prior prison terms underlying the two prior prison term enhancements that Rayo admitted under the plea agreement (for battery with serious bodily injury (§ 243, subd. (d)) and auto theft (Veh. Code, § 10851)) were not served for a sexually violent offense. We concur. (§ 667.5, subd. (b).) The parties also agree, as do we, that the changes effected by Senate Bill 136 apply retroactively to cases in which the judgment is not yet final. (People v. Winn (2020) 44 Cal.App.5th 859, 872; People v. Petri (2020) 45 Cal.App.5th 82, 94 (Petri).)
Rayo and the Attorney General, however, differ on whether Rayo is entitled to any relief resulting from the postsentencing amendment of section 667.5(b). Rayo contends that even though he did not receive any custodial time for the two prior prison term enhancements, this court should remand his case to the trial court with directions to strike them. The Attorney General maintains that the amendment to section 667.5(b) "does not prohibit a defendant from admitting the enhancement allegation." Rather, "[t]he statute prohibits the imposition of the one-year enhancement for the priors [Rayo] sustained. It does not negate the priors." In his reply brief, Rayo states that he does not seek striking of "his admission that the prior convictions occurred." Instead, he "only seeks to strike the 'prison prior' allegations pursuant to section 667.5 as mandated by [Senate Bill] 136."
We accept Rayo's concession that his claim does not challenge his admission of the existence of the prior convictions that triggered the application of the prior prison term enhancements. Accordingly, Rayo's separate admission to his prior conviction for auto theft—which was alleged under section 666.5 as a prior conviction within count 1 in case No. C1903142—would not be affected by the striking of the prior prison term enhancement allegation premised on that prior auto theft conviction. (See People v. Maki (1984) 161 Cal.App.3d 697, 700.) Rayo requests as a remedy only that we remand his case to the trial court with directions to strike the two prior prison term enhancements.
Following the California Supreme Court's recent decision in People v. Stamps (2020) 9 Cal.5th 685 (Stamps), we requested supplemental briefing on whether that decision affects this court's authority to order the remedy Rayo seeks. In Stamps, the defendant entered into a plea agreement for a specified sentence that included a prior serious felony enhancement under section 667, subdivision (a). (Id. at p. 692.) While pending appeal, Senate Bill No. 1393 (2017-2018 Reg. Sess.) went into effect. The new law granted the trial court discretion to strike or dismiss a serious felony enhancement (§ 667, subd. (a)) in furtherance of justice under section 1385—an action that was not previously authorized. (Stamps, at p. 692; Stats. 2018, ch. 1013, §§ 1 & 2.) The defendant claimed that the new law applied retroactively to his case because the judgment was not yet final. The California Supreme Court agreed. (Id. at p. 699.)
Regarding the remedy to be afforded defendant because of the newly bestowed trial court discretion, the Supreme Court rejected the defendant's contention that his case should be "remand[ed] to the trial court to consider striking the serious felony enhancement while otherwise maintaining [his] plea agreement intact." (Stamps, supra, 9 Cal.5th at p. 700.) The court reasoned that, when enacting Senate Bill No. 1393, the Legislature did not "intend[] to overturn long-standing law that a court cannot unilaterally modify an agreed-upon term [of a plea bargain] by striking portions of it under section 1385." (Id. at p. 701.) Further, the court explained that "the remedy defendant seeks, to allow the court to strike the serious felony enhancement but otherwise retain the plea bargain, would frustrate the Legislature's intent to have section 1385 apply uniformly, regardless of the type of enhancement at issue, by granting the court a power it would otherwise lack for any other enhancement." (Id. at p. 704.) The court concluded that, while the defendant should be given the opportunity to ask the trial court to exercise its new discretion to strike the serious felony enhancement, the People should be allowed to withdraw from the plea bargain if the trial court indicates an inclination to exercise its discretion to strike the enhancement. (Id. at p. 707.)
Rayo contends that Stamps does not invalidate the remedy he requests. He claims that Senate Bill 136 is different than Senate Bill No. 1393. He argues the former completely eliminates a trial court's authority to impose a prior prison term enhancement (except when based on a sexually violent offense) and the latter merely permits a court to exercise discretion to strike an enhancement. According to Rayo, the new statute thus evinces an intent to remove the prior prison term enhancement "from the Penal Code, not only as an enhancement, but as a trade item in a plea bargain." In addition, Rayo asserts that, because the trial court did not impose any custodial time for the prior prison term enhancements, striking the allegations themselves will have no effect on the stipulated sentence and the People "will still receive the benefit of their bargain when the allegations are stricken."
In his supplemental brief, the Attorney General contends that Stamps does not afford Rayo the remedy he seeks. He argues "Stamps makes it clear that the effect of section 1385 is to give the court the discretion to strike the serious felony enhancement, not the admission underlying the enhancement." The Attorney General maintains further that new section 667.5 "expressly prohibits only the imposition of an 'additional term,' " and "Stamps does not suggest" section 667.5 "prohibits a defendant from admitting that he had served prior prison terms, or affords him relief for having admitted the priors, when a term is not imposed for those priors." In addition, the Attorney General argues that Stamps is inapplicable here because no additional term was imposed on Rayo and, thus, his admission "had no sentencing consequence, unlike the situation in Stamps."
2. Analysis
In this circumstance, we are persuaded that the remedy Rayo requests is proper. Senate Bill 136 amended section 667.5 to allow the imposition of a one-year term additional to the sentence imposed for a new felony offense only if the prior prison term was served by the defendant for a conviction of certain sexually violent offenses. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Our Supreme Court has explained that the underlying prior felony conviction itself is integral to the operation of section 667.5(b). In People v. Buycks (2018) 5 Cal.5th 857 (Buycks), the California Supreme Court said that, although section 667.5(b) "does not expressly state that a prior felony conviction is required," its "reference to a prior 'prison term' necessarily must subsume the existence of a prior felony conviction that justified the imposition of that prison term." ( Buycks, at p. 889.) The court also reiterated that the fact a defendant " 'was previously convicted of a felony' " is one of the "elements required for the imposition of a section [667.5(b)] enhancement." (Ibid.) In light of this understanding of the statute, the court in Buycks concluded that "the resentencing of a prior underlying felony conviction to a misdemeanor conviction negates an element required to support a section 667.5 one-year enhancement" (ibid.) and, thus, reduction of a prior felony conviction to a misdemeanor under Proposition 47 "can negate a previously imposed section 667.5, subdivision (b), enhancement." (Id. at p. 890.)
Under the analysis set out in Buycks, the statutory change made by Senate Bill 136 amounts to a fundamental alteration of the elements of the prior prison term enhancement. By limiting the prior felony conviction element to only certain sexually violent offenses, the Legislature evinced an intent to reject all use of prior non-sexually violent felony convictions for the purpose of enhancing punishment on a new felony offense. This revision goes beyond simply altering the additional punishment that may be imposed as a consequence of having served a prior prison term. As Buycks indicated, section 667.5(b) "necessarily" presumes the "existence of a prior felony conviction that justified the imposition of that prison term." (Buycks, supra, 5 Cal.5th at p. 889.) Senate Bill 136 eliminated Rayo's prior felonies—battery with serious bodily injury and auto theft—from the list of felonies that justify the imposition of the additional prison term. Therefore, section 667.5(b) itself no longer applies to Rayo.
"As the United States Supreme Court has observed, it is 'the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct.' " (People v. Rossi (1976) 18 Cal.3d 295, 304.) Just as a "conviction cannot stand on appeal when it rests upon conduct that is no longer sanctioned" (People v. Collins (1978) 21 Cal.3d 208, 214 (Collins)), neither can a sustained allegation based on a currently inapplicable enhancement allegation. Therefore, we conclude that the two allegations leveled against Rayo within the meaning of Penal Code section 667.5(b) and resting on non-sexually violent offenses cannot stand and should be struck notwithstanding that no custodial time was imposed.
In reaching its conclusion in Stamps that the trial court did not have the unilateral authority to alter the terms of the plea bargain, the California Supreme Court relied upon its earlier decision in Collins, supra, 21 Cal.3d 208. In Collins, the California Supreme Court considered the effect on a plea bargain of the Legislature's subsequent decriminalization of the charged crime. As the court summarized in Stamps, "Collins concluded the prosecution was entitled on remand to reinstate the dismissed counts because, '[w]hen a defendant gains total relief from his vulnerability to sentence, the state is substantially deprived of the benefits for which it agreed to enter the bargain.' " (Stamps, supra, 9 Cal.5th at p. 703.)
The Legislature's removal of non-sexually violent felonies from the ambit of section 667.5(b) in Senate Bill 136 is similar to the decriminalization of particular conduct analyzed in Collins. However, under the particular facts here the prosecution would not be deprived of any benefit of its plea bargain with Rayo were this court to strike the now-inapplicable prior prison term enhancements. Rayo admitted the two enhancements alleged against him; therefore, the prosecution did not dismiss any applicable enhancements in exchange for his admissions. Further, neither party contemplated that Rayo would receive any additional punishment for the prior prison term enhancements. The sentence stipulated by the plea agreement was two years—the lowest term Rayo could receive on the sole felony to which he pleaded no contest. In fact, the trial court never could impose any punishment for the 667.5(b) enhancements without violating the terms of the plea agreement. Therefore, by ordering the prior prison term enhancement allegations stricken, we do not deprive the People of any benefit it secured in its plea agreement with Rayo.
Although Rayo asks us to remand his case to the trial court with directions to strike the two prior prison term enhancement allegations, we conclude that remand is not necessary. We are empowered to modify judgments (see § 1260; People v. Smith (2001) 24 Cal.4th 849, 854), and there is no need for the trial court to exercise its discretion or engage in further factfinding. We will therefore modify the judgment by striking the two prior prison term enhancements alleged in the felony complaint in case No. C1903142.
B. Restitution Fines, Fees, and Assessments
1. Background
At Rayo's sentencing hearing, after the trial court imposed restitution fines, fees, and assessments, Rayo's defense counsel asked the trial court if it "would consider staying Mr. Rayo's fines and fees." Defense counsel said Rayo was not working at the time of his arrest, "does not have a job upon his release in about [] five or six months," and "does not have an ability to pay." The trial court responded by reiterating its earlier statements that Rayo should report to the Santa Clara County Department of Tax and Collection upon release from jail to work out a payment plan for the fines, fees, and assessments. In addition, the trial court observed that Rayo was 22 years old and asked him if he had ever had "gainful employment." Rayo said he had worked in construction and as a restaurant busboy. He also said he was "going to school as an electrician." The trial court remarked: "That's all good work and the way things are being built around here, you can be gainfully employed for a long time and if you work at that electrician thing, maybe in five years we'll see a bunch of trucks driving around, Rayo Electrical, something like that." Rayo replied, "I'll say seven years."
As detailed ante, the restitution fines, fees, and assessments imposed amounted to approximately $3,100.
Similarly, at the earlier change-of-plea hearing, Rayo said that he had attended the "Center for Employment Training" when he was out on bail and was about a month away from completing that training and becoming "an electrician training [sic]." In addition, Rayo said he had "a stable home" and "a family" when asked by the trial court if he had any friends or family in court that day who could "see [him] through this."
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Rayo now contends the trial court erred when it imposed the restitution fines, fees, and assessments because the record does not include substantial evidence demonstrating his ability to pay. Rayo asserts that he was unemployed at the time of his sentencing and there is no information in the record regarding his assets, income, or frequency of employment. He maintains that the trial court's reliance on his "uncertain future employment to find that he had the present ability to pay was misplaced -- particularly given his record of drug- and theft-related offenses." He says that even if he manages to remain sober upon release from jail, "his employment prospects are dim." Rayo asks us to vacate the restitution fines, fees, and assessments and remand his case for a hearing at which the prosecution must demonstrate his ability to pay.
The Attorney General observes in response that some courts have disagreed with Dueñas and argues, "[e]ven assuming that there must be a showing of an ability to pay," there is substantial evidence to support the trial court's determination that Rayo had an ability to pay the restitution fines, fees, and assessments based on his potential future earnings given his age and electrician's training.
The Attorney General does not raise any argument regarding whether defense counsel's request that the trial court "consider staying Mr. Rayo's fines and fees" adequately preserved Rayo's appellate claim. Because the Attorney General has not asserted forfeiture, we assume arguendo that Rayo's current claim was preserved for review and address its merits.
2. Analysis
"In January 2019, Dueñas held that 'due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes' (1) 'court facilities and court operations assessments' (under Pen. Code § 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution fine (under Pen. Code, § 1202.4). (Dueñas, supra, 30 Cal.App.5th at p. 1164, italics added; see id. at pp. 1167, 1172; see also, id. at p. 1172 [restitution fine imposed without an ability to pay hearing must be stayed until such a hearing is conducted].)" (People v. Hicks (2019) 40 Cal.App.5th 320, 325, review granted Nov. 26, 2019, S258946.) Panels of this court and other Courts of Appeal have reached differing conclusions on whether Dueñas was correctly decided. (See, e.g., Hicks, at pp. 325-329, review granted; People v. Santos (2019) 38 Cal.App.5th 923, 933-934 (Santos); People v. Adams (2020) 44 Cal.App.5th 828, 831-832; Petri, supra, 45 Cal.App.5th at p. 92.) Moreover, the issue is pending before the California Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844 (Kopp).)
In particular, the issues pending before the California Supreme Court in Kopp are: "(1) Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant's inability to pay?" --------
Even accepting arguendo that Dueñas was correctly decided, Rayo has not persuaded us that the trial court's finding that he had the ability to pay the restitution fines, fees, and assessments lacked substantial evidence. "Under substantial evidence review, we 'interpret the facts in the light most favorable to the [order], indulge . . . all reasonable inferences in support of the trial court's order,' and do not reweigh the evidence." (In re E.F. (2020) 45 Cal.App.5th 216, 222, review granted on other grounds June 17, 2020, S260839.) A trial court can find an ability to pay the restitution fines, fees, and assessments based on a defendant's ability to earn money after release from custody. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1076; People v. Cervantes (2020) 46 Cal.App.5th 213, 229.) Moreover, the defendant bears the burden in the trial court of demonstrating an inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490; Santos, supra, 38 Cal.App.5th at p. 934 ["[I]t is the defendant's burden to demonstrate an inability to pay, not the prosecution's burden to show the defendant can pay."].)
As noted above, Rayo challenges the trial court's reliance on his prospects for employment and earning potential. In our view, those prospects are rooted in the record and were properly relied on by the trial court in its assessment of Rayo's ability to pay the restitution fines, fees, and assessments. Rayo is a young man who had worked in construction and begun electrician's training. He also had been employed at a restaurant. Although Rayo has struggled with drugs, at the change-of-plea hearing, Rayo told the trial court he had a stable home and family support. Moreover, Rayo presented no evidence that he would be unable to work in the future.
Based on the evidence before the trial court, we cannot conclude that its finding regarding Rayo's ability to pay the restitution fines, fees, and assessments lacked substantial evidence.
III. DISPOSITION
We order the judgment modified to strike the two prior prison term enhancements under Penal Code section 667.5, subdivision (b), in case No. C1903142. As so modified, the judgment is affirmed. The trial court is directed to issue an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Santa Clara County Sheriff's Office.
/s/_________
Danner, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Grover, J.