Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. LA048968. Curtis B. Rappe, Judge.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Wilson Aron Sanchez (Sanchez) appeals from a judgment entered after a jury returned a verdict of guilt against him for count 1, conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1)) and count 2, murder (§ 187, subd. (a)). The jury found true the allegation that Sanchez and his codefendants committed the murder for financial gain within the meaning of section 190.2, subdivision (a)(1). The jury also found true the allegation as to count 1 and count 2 that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1).
Codefendants Rene Oscar Alvarado (Alvarado), Maria Quijano (Quijano), Pablo Anthony Alvarenga (Alvarenga), and Erik Monroy (Monroy) are not parties to this appeal. Alvarado and Quijano were tried separately and each have appeals pending before this court. Monroy and Alvarenga pled guilty to voluntary manslaughter in exchange for their testimony. Monroy and Alvarenga received 22-year prison terms.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced Sanchez to life without possibility of parole on count 2, plus one year for the firearm enhancement. The sentence of 25 years to life plus one year for the firearm enhancement on count 1 was imposed and stayed pursuant to section 654.
We affirm with directions to the trial court to correct the abstract of judgment and minute order to reflect that the sentence of 25 years to life on count 1 and the one-year sentence for the firearm enhancement were stayed pursuant to section 654.
CONTENTIONS
Sanchez contends that: (1) there was insufficient corroboration of the accomplice testimony; (2) the jury was improperly allowed to consider acts that occurred subsequent to the murder as overt acts to support the conspiracy; and (3) the minutes of the sentencing hearing and the abstract of judgment must be corrected to reflect the trial court’s stay of sentence on count 1.
FACTS AND PROCEDURAL HISTORY
The murder and subsequent investigation
Quijano was married to Reynaldo Quijano (Reynaldo). On April 10, 2005, Reynaldo was shot to death in the early morning hours as he was stopped at an intersection in his brown Mercedes near Stagg Street in Sun Valley. Silvia Tejeda (Tejeda), who was returning home from work to Stagg Street between 12:10 and 12:15 a.m., noticed a brown van with a covering on the driver’s side rear window parked in a red zone under a street light. She parked her car, then heard three gunshots as she opened her door. She ran to her house and saw a young man, approximately five feet eight inches tall, weighing approximately 160 pounds, and wearing a black hooded sweatshirt running toward the intersection. He ran quickly and easily, without a limp. The van also moved toward the intersection and that man entered the passenger side of the van. The van turned and drove past Tejeda. She noticed a car stopped at the intersection with the lights on, and a man’s body hunched over the steering wheel inside the car. Tejeda called 911. Ethan Selzer, who lived two houses down from Reynaldo, heard three to five gunshots at 12:13 a.m. from the intersection of Stagg Street and Arcola. He then heard a vehicle accelerate away.
Los Angeles Police Department Officer Martin Higuera, who responded to the scene of the crime, found a gas bill near Reynaldo’s car addressed to Cecilia Arias (Arias). Fresh vehicle fluid was on the ground in the same area where the bill was found. Four expended nine-millimeter shell casings were found in the street, and a nine-millimeter bullet was recovered from the driver’s seat of the Mercedes. A medical examiner determined that Reynaldo died of multiple gunshot wounds which were consistent with his being seated in the driver’s seat of a vehicle, shot from left to right.
On April 13, 2005, Los Angeles Police Department detectives drove to Arias’s house and found a brown van parked nearby. Tejeda identified the brown van through photographs taken by the detectives. Fingerprints matching those of Alvarenga, Monroy, and Sanchez were later lifted from the brown van. Pedro Villegas (Villegas), Sanchez’s stepfather, was the owner of the van. He had loaned it to Sanchez in April 2005. The van leaked power steering fluid and had a broken rear window on the driver side that Villegas had taped over with plastic.
On April 20, 2005, detectives surveilled the van as Sanchez, Claudia Jimenez (Jimenez), Joe Martinez (Martinez), and Alvarenga retrieved a green Toyota Camry which had been impounded for a missing license plate.
Arias testified that Sanchez, who was the boyfriend of her daughter Jimenez, lived at Arias’s house. Jimenez told detectives that Sanchez worked for a temporary agency and did not have a steady job. Jimenez and Sanchez did not own cars so they drove her mother’s green Camry or his stepfather’s brown van. They needed money and had to pawn items in the months previous to the murder for food and living expenses. Pawn shop receipts totaling $970 were found in Arias’s house. In April 2005, for the first time, Sanchez gave Arias $300 for rent, food, and utilities. Shortly before the murder, Jimenez gave Sanchez a utility bill so that he could get a library card. Arias identified the gas bill that had been found at the scene of the crime as hers. However, she had never been inside Sanchez’s van, nor had she ever been to Sun Valley. Jimenez admitted that she and Sanchez socialized with Alvarenga, Monroy, and William Bailey (Bailey).
Anthony Torres (Torres) testified that he was with Alvarenga at a parking lot on 84th Street when Sanchez and Monroy drove up in a brown van. Torres heard Sanchez, Monroy, and Alvarenga talking about getting a gun to do a mission to make some money. Alvarez invited Torres to join them, but Jose Luis (Luis), a friend of Torres’s drove up, and Torres got into Luis’s car. Torres saw Sanchez, Monroy, and Alvarenga drive away in the brown van.
Bailey testified that in April 2005, he was visited by Sanchez, who gave him a sealed envelope to keep safe. Sanchez told him there was $7,000 to $8,000 inside the envelope. Bailey joined Sanchez, Monroy, and Alvarenga in Sanchez’s van, where they drank beer and smoked marijuana. Sanchez told Bailey that they killed a man on behalf of a woman who wanted her husband killed for abusing her kids. He told Bailey that they waited for the guy to come out and they shot him. They got paid for the murder.
Felix Penate (Penate) purchased a cell phone for Alvarado, who was his wife’s uncle. When officers served a search warrant at Alvarado’s house they recovered, among other things, a medical appointment card with Reynaldo’s address on it. Pursuant to a search warrant for cell phone records, detectives ascertained that Quijano’s cell phone had exchanged telephone calls with Alvarado’s cell phone four times on April 2, 2005, and 22 times on April 3, 2005. Sixteen calls were made between the hours of 11:00 p.m. and midnight of April 9, 2005. Seven calls were made after midnight of April 9, 2005. Records showed that Alvarado’s cell phone exchanged calls with Alvarenga’s mother, Monroy’s mother, and Monroy’s girlfriend the evening of the murder. Prior to the execution of the search warrants, detectives conducting surveillance on Alvarado noted that he walked with a limp. A detective called him at the cell phone number for the phone purchased by Penate. When Alvarado answered the call, the detective hung up.
Accomplice testimony of Alvarenga
Alvarenga testified that he was a friend of Sanchez, Monroy, and Bailey. On April 9, 2005, Alvarado walked up to Alvarenga as he was drinking beer and smoking marijuana at a parking lot on 84th Street. Alvarado told Alvarenga a woman would pay $8,000 to have a man killed by 8:00 or 9:00 that evening. Sanchez and Monroy then joined them and discussed the killing. Alvarado got a photograph of Reynaldo from his apartment. Sanchez accompanied Alvarado to his apartment and determined that he had the promised money. Sanchez agreed to murder Reynaldo and asked the others to join him. He told them that Reynaldo drove a brown car. Sanchez, Monroy, and Alvarenga drove to Alvarenga’s apartment to get a black sweatshirt for Sanchez. They then drove to the house of a man named Yoda and got a gun. Alvarenga fired the gun out the window to make sure it worked. Monroy drove to Reynaldo’s residence and parked the van across the street, waiting for Reynaldo to arrive. Reynaldo arrived between 8:00 and 9:00 p.m., as Alvarado had told them, but they missed their opportunity to kill Reynaldo. They returned to Alvarado’s apartment. Sanchez tried to get the money by telling Alvarado that they had been successful, but Alvarado telephoned Quijano, who said Reynaldo was asleep in the house.
Alvarado gave Sanchez his cell phone. Sanchez, Monroy, and Alvarenga started driving back to Reynaldo’s residence. Using Alvarado’s cell phone, Sanchez spoke to Quijano, who told him that she wanted Reynaldo killed because he had raped her daughter. She told Sanchez that she was paying Alvarado $20,000 or $25,000. She told him that she would wake Reynaldo up and have him go out to buy something. She planned to leave the porch light on so that Sanchez and the others could see the house. Quijano told them to call her when they arrived. Monroy and Alvarenga used the cell phones to call their mothers.
Sanchez called Quijano when they arrived. A few minutes later, Reynaldo came out of the house. Sanchez, who had been driving, got out of the car, and told Monroy to get into the driver’s seat. Sanchez exited the van and walked toward Reynaldo, who was in his car. Monroy drove the van to the middle of the intersection. Sanchez shot Reynaldo three times. Sanchez ran back to the van, jumped in, and drove off. Sanchez talked to Quijano on the cell phone. Quijano told him to have Alvarado call her to confirm the murder. They dropped the gun off at Alvarenga’s apartment, then drove to Alvarado’s apartment, where Sanchez collected the money. He gave $540 each to Monroy and Alvarenga. They drove to Bailey’s house where Sanchez gave him an envelope containing $7,000 or $8,000 to keep safe. Sanchez told Bailey he got the money for killing someone. Bailey joined them in smoking marijuana at a park. When they dropped Bailey off at his house, he returned the envelope to Sanchez.
After the murder Sanchez, Alvarenga, and Monroy bought shoes and clothes. Sanchez bought a green Camry, a mini motorcycle, and a cell phone. Later, Alvarenga accompanied Sanchez and Martinez to pick up the Camry from impound. Sanchez told Alvarenga that the car was under the name of his girlfriend’s mother. Yoda came to Alvarenga’s apartment to collect the gun.
Accomplice testimony of Monroy
Monroy testified that on April 9, 2009, he went to a parking lot on 84th Street. At the parking lot he saw Torres and Luis inside a white Honda. Monroy saw Sanchez and Alvarenga talking and he joined them. Alvarenga told him of the murder plot. Sanchez left with Alvarado, then returned saying that he had seen the money. Sanchez showed Monroy a picture of Reynaldo and said that Reynaldo drove a brown Mercedes. Sanchez said he would do the job for $8,000, and it had to be done that night, because Reynaldo was leaving town the next day. Monroy joined the group after Sanchez said he would let them down if he did not go with them. Sanchez told him he would give Monroy and Alvarenga $1,000. They drove to Alvarenga’s house for a black sweatshirt and gloves, and to Yoda’s house to pick up a gun. Alvarenga fired the gun to test it.
They drove to Reynaldo’s house, but missed the opportunity to kill Reynaldo because Monroy drove past the house when Reynaldo arrived home. They returned to Alvarado’s apartment. Alvarado gave Sanchez a cell phone. Monroy used the phone to call his girlfriend and mother. While Monroy was on the phone with his mother, Quijano called and asked to speak to the shooter. Monroy gave the cell phone to Sanchez. Sanchez told the others that Quijano said Reynaldo had raped her three-year-old daughter.
On the way back to Reynaldo’s residence, Monroy called his girlfriend and Alvarenga called his mother on Alvarado’s cell phone. After they parked, Sanchez called Quijano. Monroy then saw Reynaldo enter the Mercedes. Sanchez ran up and fired a few times at the driver’s side, then ran back to the van. They dropped the gun off at Alvarenga’s house, then picked up the money from Alvarado. Monroy and Alvarenga received $540 each from Sanchez. They left the money at Bailey’s residence while they smoked marijuana in a park. Monroy later saw Sanchez with a green Camry. Sanchez told him that he gave $2,000 to his girlfriend’s father for a down payment on the car.
DISCUSSION
I. Substantial evidence corroborated the accomplice testimony of Alvarenga and Monroy
A. The conspiracy and murder convictions
Sanchez contends that aside from the accomplice testimony, insufficient evidence existed that Sanchez entered into any agreement to murder Reynaldo or that Sanchez committed overt acts. He urges that the conspiracy and murder convictions must be reversed. We disagree.
In reviewing the sufficiency of the evidence, the appellate court must “‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Ceja (1993), 4 Cal.4th 1134, 1138-1139.)
Section 1111 provides that the testimony of an accomplice must be corroborated by evidence that connects the defendant with the commission of the offense. (§ 1111.) Corroborating evidence need not by itself establish every element of the crime, nor need it corroborate the accomplice as to every fact to which he testifies, but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth. (People v. Garrison (1989), 47 Cal.3d 746, 773; People v. McDermott (2002), 28 Cal.4th 946, 986.) “‘The trier of fact’s determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.’ [Citation.]” (People v. Abilez (2007), 41 Cal.4th 472, 505.)
Sanchez contends that other than the accomplice testimony, there is no evidence Sanchez entered into any agreement with Alvarenga and Monroy to kill Reynaldo. He claims that Torres’s testimony connected Sanchez with the other persons participating in the crime, but did not identify any conduct of Sanchez that would indicate affirmation of any plan. Sanchez also contends there was insufficient corroborating evidence that he committed any overt act in furtherance of a conspiracy, and that the jury instructions as to overt acts were based solely on the testimony of Alvarenga and Monroy. He also complains that the cell phone records corroborate the placement of the calls and involvement of Alvarenga and Monroy, but do not corroborate Sanchez’s involvement. He further contends that Tejeda never identified Sanchez and her testimony cannot corroborate Sanchez’s involvement.
We disagree with Sanchez’s assessment of the evidence and conclude that sufficient evidence existed corroborating the accomplices’ testimony as to the conspiracy. A conspiracy consists of two or more persons conspiring to commit any crime. (§ 182.) The defendant and another person must have the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to the agreement in furtherance of the conspiracy. (§ 184; People v. Russo (2001), 25 Cal.4th 1124, 1131.) “In proving a conspiracy, however, it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.” (People v. Prevost (1998), 60 Cal.App.4th 1382, 1399.)
Reynaldo’s murder was the object of the conspiracy. Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) First degree murder, as pertinent here, is perpetrated for financial gain. (§ 189.) The record shows that sufficient evidence existed to support the finding that Sanchez conspired with Alvarenga and Monroy to murder Reynaldo for profit. Jimenez testified that Sanchez associated closely with Alvarenga and Monroy prior to the murder. (People v. Prevost, supra, 60 Cal.App.4th at p. 1400 [while mere association cannot establish a conspiracy, evidence of participation with the evidence of the association may support an inference of a conspiracy to commit the offense].) Torres testified that he heard Sanchez, Monroy, and Alvarenga talking about getting a gun to do a mission to make some money. The jury could thus infer that Sanchez, Monroy, and Alvarenga agreed to participate in the murder. Tejeda described the shooter as wearing a dark, hooded sweatshirt, corroborating the accomplice testimony that Sanchez got a black sweatshirt from Alvarenga, as part of the agreed upon plan to kill Reynaldo. Bailey testified that Sanchez told him that he, Alvarenga, and Monroy killed a man for money on behalf of a woman who wanted her husband murdered. He described how they waited for Reynaldo to come outside before they shot him. Again, the jury could conclude that Sanchez entered into an agreement with the others to plan and commit the crime.
Additionally, corroborating evidence as to overt acts existed. Any one of the conspirators, and not necessarily the charged defendant, may commit the overt act to consummate the conspiracy. (§ 184; People v. Hardy (1992), 2 Cal.4th 86, 188.) Overt acts 3 to 10, 14, 18, 20 and 21 included the payment by Quijano to Alvarado to kill her husband; agreement among Alvarado, Sanchez, and Alvarenga to commit the murder; invitation to Monroy to join the group; and use of Alvarado’s cell phone to locate Reynaldo and kill him. As previously stated, independent evidence supported those overt acts. Torres testified that Sanchez and the others said they needed to get a gun. Tejeda’s testimony that the shooter wore a dark, hooded sweatshirt corroborated that Sanchez committed overt acts by obtaining those items in furtherance of the conspiracy. Overt acts 11, 15, 16 and 19, regarding cell phone calls were corroborated by cell phone records that showed that 18 to 20 phone calls were made between Quijano’s phone and the cell phone that Alvarado gave Sanchez on the night of the murder. These calls included calls to Monroy’s girlfriend and mother, and Alvarenga’s mother. (People v. McDermott, supra, 28 Cal.4th 986 [numerous telephone calls the day before, the day of, and the day after the murder between defendant and accomplice was corroborative of accomplice testimony].) Overt acts 12, 13 and 17, which included Sanchez and his coconspirators positioning themselves in the van and shooting Reynaldo, were corroborated by Tejeda’s testimony.
While Sanchez challenges only the insufficiency of the evidence as to the agreement to conspire and the overt acts, the record shows that corroborating evidence connects Sanchez to the crime and establishes motive. Jimenez told police that she and Sanchez needed money, Sanchez did not have a steady job, and they pawned a lot of items recently for rent and food. The police found pawn slips totaling $970 in Sanchez’s room. Arias told police that Sanchez paid her rent money for the first time in April 2005. Villegos lent Sanchez his brown van, from which Sanchez, Monroy and Alvarenga’s fingerprints were lifted. The van leaked vehicle fluid, which was found on the street at the scene of the crime. Tejeda identified pictures of the van. And, Jimenez told officers she gave Sanchez a gas bill, which Arias identified and was found at the crime scene. Moreover, the medical examiner’s testimony describing the cause and manner of Reynaldo’s death corroborated the accomplices’ account of how Sanchez killed Reynaldo. After the murder, Sanchez visited Bailey and gave him an envelope containing $7,000 to $8,000. Independent evidence also corroborated the accomplices’ testimony that Sanchez bought a green Camry with the money. Finally, detectives surveilled Sanchez as he drove the brown van and got the Camry out of impound.
We conclude that substantial evidence corroborated the accomplice testimony of Alvarenga and Monroy.
B. The firearm enhancement
Sanchez contends that there was insufficient evidence independent of the accomplice testimony to support the firearm enhancement under section 12022, subdivision (a), as to both counts. We disagree.
Section 12022, subdivision (a)(1), provides that persons armed with a firearm in the commission of a felony shall be punished by an additional and consecutive term of imprisonment for one year. A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. (People v. Bland (1995), 10 Cal.4th 991, 998.)
Substantial evidence showed that Sanchez was armed with a firearm. Tejeda corroborated that Sanchez shot Reynaldo, who was seated in his car. She also corroborated that the shooter, who wore a black hooded sweatshirt, as attested to by the accomplices, entered the brown van that Villegos lent to Sanchez. The medical examiner’s testimony that Reynaldo died of gunshot wounds and that three bullets were recovered from his body corroborated that the principal was armed with a firearm.
Accordingly, substantial evidence proved the firearm enhancement pursuant to section 12022, subdivision (a).
II. The jury was properly allowed to consider overt acts occurring subsequent to the murder
Sanchez contends his conviction must be reversed because the jury was allowed to consider overt acts 17, 18, 19, 20, and 21 that occurred subsequent to the murder. We disagree.
Sanchez complains that the jury was improperly allowed to consider the following overt acts: overt act 17 (immediately after the shooting Sanchez ran to the van where Alvarenga and Monroy were waiting); overt act 18 (Monroy drove Sanchez and Alvarenga back to South Los Angeles); overt act 19 (Alvarado telephoned Quijano to confirm that Reynaldo was dead); overt act 20 (Quijano confirmed that Reynaldo was dead and Alvarado paid Sanchez $8,000 for the killing); and overt act 21 (Sanchez paid Monroy and Alvarenga).
“The general rule is that a ‘conspiracy usually comes to an end when the substantive crime for which the coconspirators are being tried is either attained or defeated.’ (People v. Saling (1972), 7 Cal.3d 844, 852.) ‘[An] insurance conspiracy would normally... terminate[] upon the receipt of the insurance proceeds.’ [Citation.] ‘It is for the trier of fact—considering the unique circumstances and the nature and purpose of the conspiracy of each case—to determine precisely when the conspiracy has ended.’ (Saling, supra, at p. 852; [citation].)” (People v. Hardy, supra, 2 Cal.4th at p. 143.)
In People v. Hardy, the defendants entered into a conspiracy to murder the wife and son of one of the defendants in order to receive life insurance benefits. (People v. Hardy, supra, 2 Cal.4th at p. 143.) In that case, the trial court properly found that the conspiracy, which had as its primary goal the commission of murder to collect life insurance proceeds, was ongoing at time of trial because the insurance companies had not yet paid out at the time of trial. (Ibid.) Here, Sanchez, Alvarenga, and Monroy were charged in count 1 with conspiracy to commit first degree murder. In count 2 they were charged with murder for financial gain. Thus, the overt acts challenged by Sanchez were part of the ongoing conspiracy to murder Reynaldo for profit. That is, the agreement to kill Reynaldo for $8,000 included the plan to return to Alvarado’s apartment to collect the money. Alvarado confirmed the murder and paid appellant the money. Sanchez then paid Monroy and Alvarenga for their assistance. Thus, the objective of the conspiracy, murder for profit, was achieved when the men received their money. Accordingly, Sanchez’s citation to People v. Zamora (1976), 18 Cal.3d 538, 560 for the proposition that “acts committed by conspirators subsequent to the completion of the crime which is the primary object of a conspiracy cannot be deemed to be overt acts in furtherance of that conspiracy,” does not advance his cause. As previously discussed, the primary object of the conspiracy was murder for financial gain. And the objective of the conspiracy, murder for profit, was achieved when the men received their money.
Sanchez’s citation to People v. Brown (1991), 226 Cal.App.3d 1361 for the proposition that a defendant cannot be guilty of conspiracy to commit robbery based on only one overt act of sharing in the proceeds after the robbery, does not avail him. Instead, here, the evidence showed that Sanchez committed overt acts before, during, and after the murder in support of the conspiracy to commit murder for profit.
We conclude that the trial court did not err in allowing the jury to consider overt acts that occurred subsequent to the murder.
3. The abstract of judgment should be modified to correctly reflect the proper sentence on count 1
Sanchez contends, and the People concede, that the minutes of the sentencing hearing and abstract of judgment should be corrected to show that the sentence on count 1 was stayed pursuant to section 654.
The Courts of Appeal have the inherent power to correct clerical errors in the record so as to make the records accurately reflect the facts of a conviction. (People v. Mitchell (2001), 26 Cal.4th 181, 186-187.) At sentencing, both parties agreed that the sentence on count 1 should be stayed pursuant to section 654. The trial court imposed and stayed a term on count 1 of 25 years to life plus one year for the armed enhancement. However, the abstract of judgment shows a consecutive sentence on count 1. Although the related minutes do not indicate whether the sentence of 25 years to life on count 1 was stayed, they appear to show that the section 12022, subdivision (a)(1) enhancement on count 1 was stayed pursuant to section 654.
Accordingly, the abstract of judgment and minute order shall be corrected to reflect that the sentence of 25 years to life on count 1 and the one-year sentence for the firearm enhancement were stayed pursuant to section 654.
DISPOSITION
The trial court is ordered to correct the abstract of judgment and minute order to reflect that the sentence of 25 years to life on count 1 and the one-year sentence for the firearm enhancement were stayed pursuant to section 654. The trial court is ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.