Opinion
A150472 A155182
10-04-2019
THE PEOPLE, Plaintiff and Respondent, v. FELIX HERNANDEZ SANTAY, Defendant and Appellant. In re FELIX HERNANDEZ SANTAY on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 609693)
This is a consolidated appeal and petition for writ of habeas corpus challenging the validity of the no contest "open plea" entered by defendant/petitioner Felix Hernandez Santay (hereinafter, defendant) to two felony counts—forcible rape of a child (Pen. Code, § 261, subd. (a)(2)) and forcible lewd act upon a child (Pen. Code, § 288, subd. (b)(1)). Defendant, by way of his petition and direct appeal, challenges the validity of his plea on the ground of ineffective assistance of counsel in violation of his state and federal constitutional rights after he rejected an eight-year plea bargain offered by the prosecution and entered this open plea that ultimately resulted in the trial court's imposition of an eight-year eight-month sentence.
"An open plea is one under which the defendant is not offered any promises. [Citation.] In other words, the defendant 'plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible sentence if the court later chose to impose it.' [Citation.]" (People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4.)
Unless otherwise stated, all statutory citations herein are to the Penal Code.
For reasons set forth below, we conclude based on the record before us that defendant has failed to sustain his burden of establishing that constitutionally deficient representation caused him to reject the offered eight-year plea bargain and instead enter the open no contest plea to two counts. Accordingly, we deny the petition for writ of habeas corpus and affirm the judgment with one modification.
As discussed below, we instruct the trial court to correct a clerical error in the abstract of judgment and, in all other regards, affirm the judgment. (At pp. 13-14, post.)
FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 2015, defendant was charged with forcible rape of a child (§ 261, subd. (a)(2); count one) and forcible lewd act upon a child (§ 288, subd. (b)(1); count two). As to both counts, it was alleged the victim was a child under the age of 14 at the time of the crime. In addition, notice was given that both counts qualify as violent felonies within the meaning of section 667.5, subdivision (c).
The charges stem from the following events. On September 28, 2015, defendant, on his own initiative, reported to the Oakland Police Department that, in August 2015, he had committed a sexual battery against a 13-year-old child. The victim, the daughter of a woman who was renting a room in defendant's house, subsequently disclosed in a CALICO interview that defendant had raped her on his bed. According to the victim, defendant forcibly pulled down her pants and underwear, and then inserted his penis into her vagina. After the victim attempted to flee, defendant pushed her back down on the bed and tried to insert his penis into her anus. The victim eventually got away and left defendant's bedroom, but did not tell her mother what had happened because she was afraid her mother would be mad. After being confronted with the victim's interview statements, defendant admitted to the police that he had raped her.
The undisputed facts are taken from the probation report.
On November 17, 2016, defendant pleaded no contest to both felony offenses. On January 6, 2017, the trial court sentenced defendant to a total prison term of eight years eight months.
After sentencing, the trial court granted defendant's request for a certificate of probable cause, prompting his timely appeal. And, after the appeal was fully briefed, defendant then petitioned this court for a writ of habeas corpus.
DISCUSSION
Defendant raises one issue for our review: Was his decision to reject the prosecution's plea bargain offer of eight years and enter an open plea of no contest to both counts, which resulted in an eight-year eight-month sentence, the product of ineffective assistance rendered by trial counsel in violation of his state and federal constitutional rights? (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)
The governing law is not in dispute. To prevail on a claim of ineffective assistance of counsel, the "defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569.) "Prejudice" in this context occurs only where defense counsel's deficient performance " 'so undermined the proper functioning of the adversarial process' " that the outcome cannot be deemed reliable. (People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).)
In applying this standard (hereinafter, Strickland standard), the defendant must overcome a strong presumption that counsel's conduct was sound legal strategy or otherwise within the wide range of reasonable professional assistance. (People v. Burnett (1999) 71 Cal.App.4th 151, 180; People v. Bunyard (1988) 45 Cal.3d 1189, 1215.) Further, if "a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Kipp, supra, 18 Cal.4th at p. 366.)
The California Supreme Court has applied the Strickland standard to a case similar to ours where the defendant argued that incompetent legal counsel led him to accept a plea bargain, rather than to take his case to trial. In that case, In re Alvernaz (1992) 2 Cal.4th 924 (Alvernaz), the high court held that the "pleading—and plea bargaining—stage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions. [Citations.] It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea." (Id. at pp. 933-934.) Thus, "the . . . circumstances—where counsel's ineffective representation results in a defendant's rejection of an offered plea bargain, and in the defendant's decision to proceed to trial—also give rise to a claim of ineffective assistance of counsel. Both alternate decisions . . . are products of the same attorney-client interaction and involve the same professional obligations of counsel. Application of the constitutional guarantee of effective assistance of counsel to the advice given a defendant to plead guilty necessarily encompasses the counterpart of that advice: to reject a proffered plea bargain and submit the issue of guilt to the trier of fact." (Id. at pp. 934-935.)
The parties agree, as do we, that the California Supreme Court's reasoning applies to the comparable situation we have here, where defendant rejected an offered plea bargain of eight years and instead entered an open plea of no contest to two counts, leaving it to the trial court to select the appropriate sentence. Accordingly, applying the teachings of Alvernaz, we consider, one, whether defendant has met his burden to establish deficient performance by counsel in advising him with respect to his choice to enter an open no contest plea to both counts or to accept the prosecution's plea deal of eight years on count one only and, two, whether it is reasonably probable that, but for counsel's deficient performance, he would have received a lesser sentence. (Alvernaz, supra, 2 Cal.4th at pp. 936-937.) We begin with the relevant record.
In support of his petition for writ of habeas corpus (petition), defendant attested that, before he retained attorney James Phillip Vaughns to represent him, his appointed trial counsel told him the prosecution was offering three years in prison, but that "we're not gonna take that offer" because "I think we can do better with a lesser form of charge (243) so that you can do 2 years with half in a county jail that sounded better than 3 years in prison . . . ." (Sic.) Defendant further attested that, later, "[m]onths after I go back to court [prior counsel] tells me that the offer was no longer 3 years that it was 9 years now." Defendant then hired Vaughns, who reported to him after some investigation that there had been a five-year offer, not a three-year offer; however, the prosecution was presently offering "9 years and that the time would never be reduced." According to defendant's declaration, given these circumstances, "I decided to plea open to two charges and rejected the District Attorney's offer of pleading to a single charge of years; because the judge told my attorney at the time [Vaughns] that he could do better than that the District Attorney was asking if I pled open to him that's why I did it to me was clear that the sentence would of been less than 8 years but instead it was more time and with 2 strikes." (Sic.)
Finally, defendant attested that, had he known eight years would be the "lowest term" offered, he would have taken it. As his declaration explains, "I know that no promises are made when pleading open so why lie to me and tell me that the judge can do better meaning leniency for pleading open[?]" (Sic.)
In a second declaration filed in support of the petition, defendant's trial counsel, Vaughns, attested that, during plea negotiations, the trial judge asked the prosecutor whether she was willing to " 'move' " on a previously made nine-year offer. In response, the prosecutor presented an offer of eight years if defendant would plead guilty to one charge. According to Vaughns's declaration, "[the judge] stated that he could 'beat' the prosecution's 8-year offer to one count if [defendant] would plead open." Counsel further attested that, "[b]ased on prior sentencing negotiations before [the judge], I trusted that he would sentence [defendant] to less than the eight year offer as he indicated."
Thus, in light of these circumstances, Vaughns declared that he gave the following advice to defendant: "I mentioned to [defendant] that the judge had been a decades-long fixture on the bench, that [defendant's] case was literally the last case on the judge's docket before retirement, and that he was known to be reasonable and creative at sentencing. [¶] I told [defendant] that he could accept the prosecutor's offer, which included an eight year sentence. [¶] My research led me to believe the lowest sentence a plea to both counts would be 9 years. However, when the judge mentioned he could 'beat' the 8 years, I thought I had mis-calculated. [¶] I did not advise [defendant] to reject the prosecutor's eight year offer. I told him it was his choice. [¶] I do not recall if I told [defendant] the minimum sentence for pleading open to the two counts was nine years. I do recall saying to him that, if any judge could craft an appropriate sentence, it would be [this trial judge]."
Lastly, Vaughns's declaration states that "I did not object, or move to withdraw, the plea when [the trial judge] imposed a term higher than the promised 8 year sentence because I believed this result was the best that could have been achieved. Trial was not an option [because defendant admitted the charges and the victim was willing testify against him,] and all negotiation attempts had failed to result in any offer lower than 9 years until that meeting in . . . chambers. [The prosecutor] had, in a voicemail message to me and in person, indicated that the case was a dead-bang winner for her office and that [defendant's] voluntary confession to the police was of no mitigating value to her office."
Counsel's declaration describes in detail his efforts to negotiate a favorable plea bargain with the prosecution. Specifically, as stated, when Vaughns was retained in June 2016, he understood based on conversations with defendant and his prior counsel that there had been two offers, one offer of three years and another more recent one of five years. Vaughns then approached the district attorney's office regarding its willingness to honor these offers. The deputy district attorney present at the July 26, 2016 pretrial conference denied there had been a three-year offer but acknowledged there may have been a five-year offer, and suggested Vaughns speak with another prosecutor working on the case (Margaret Calonge). Vaughns then queried whether the prosecution's then-current offer of nine years was "punishment for not accepting the 5-year offer," and was told that "it had more to do with the victim's family being desirous of more than a 5 year sentence."
With these facts in mind, we return to Strickland's two-prong standard.
I. Performance of Counsel.
As stated above, the first prong of the Strickland standard is established if the record demonstrates defense counsel's performance fell below an objective standard of reasonableness under the prevailing norms of practice. (Alvernaz, supra, 2 Cal.4th at p. 937.) In applying this standard, we keep in mind the following: "Although [the] decision [to accept a plea bargain] ultimately is one made by the defendant, it is the attorney, not the client, who is particularly qualified to make an informed evaluation of a proffered plea bargain. The defendant can be expected to rely on counsel's independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial." (Id. at p. 933.)
More specifically, "[t]he court in Strickland explained that counsel's responsibilities incident to ensuring a fair trial include 'the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.' ([466 U.S.] at p. 688 .) The Strickland court held that the standards of the American Bar Association (such as I ABA Standards for Criminal Justice, The Defense Function, stds. 4-1.1 to 4-8.6 (2d ed. 1980)) provide pertinent guidelines for determining the scope of the duties required of counsel under various circumstances. (466 U.S. at p. 688 .) Standard 4-6.2 provides that in conducting plea discussions with the prosecutor, defense counsel must communicate promptly to the accused all proposals made by the prosecutor, and ensure that the accused's choice on the question of a guilty plea is an informed one, made 'with full awareness of the alternatives, including any that arise from proposals made by the prosecutor.' (I ABA Standards for Criminal Justice, op. cit. supra, std. 4-6.2(a) & commentary.)" (Alvernaz, supra, 2 Cal.4th at p. 935.) Notwithstanding these standards, however, our highest court has made clear "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." (Strickland, supra, 466 U.S. at pp. 688-689.)
Here, defendant contends counsel rendered deficient legal advice in two respects—by failing to advise defendant of the maximum and minimum sentences he was facing by entering an open plea to two felony counts, and by advising defendant based on his prior experiences with the trial judge that defendant could trust that his open plea would result in a sentence more favorable than the prosecution's eight-year offer.
Turning to defendant's first example of allegedly deficient performance, failure to advise as to the maximum and minimum sentences he was facing, we conclude the record fails to support his claim. Defendant's attorney, Vaughns, attested that he did not recall whether he told defendant that the minimum sentence for pleading open to the two counts was nine years. Defendant's declaration, in turn, is silent as to whether he received this information from Vaughns. Under these circumstances, we decline to infer from these two declarations that defense counsel in fact failed to provide defendant information regarding his potential maximum and minimum sentences. (See Alvernaz, supra, 2 Cal.4th at p. 938 [courts must "scrutinize closely" a defendant's evidentiary showing in an ineffective assistance claim because, inter alia, "defense counsel's recollection of the communications and advice given the client and the client's response to that advice, if unrecorded, may well have faded or disappeared entirely"].)
On appeal, the parties agree that, under the statutory sentencing protocol, the minimum sentence for defendant's two felony offenses was eight years eight months, representing five years as the principal term for count two (forcible lewd act upon a child), plus three years eight months, representing one-third of the 11-year middle term for count one (forcible rape upon a child), to run consecutively. (See §§ 288, subd. (b)(1), 264, subd. (c)(1), 1170.1, subd. (a); see also People v. Neely (2009) 176 Cal.App.4th 787, 798 ["if the court determines that a consecutive sentence is merited, it must designate the crime with the 'greatest' selected base term as the principal term and the other crimes as subordinate terms. (§ 1170.1, subd. (a).) [Then], the court sentences the defendant to the full base term it selected for the principal term crime and one-third of the middle term for any crimes for which the sentence is ordered to run consecutively. [Citations.] A subordinate term is one-third of the middle term even if the trial court had initially selected the lower or upper term as the base term"].)
Insisting otherwise, defendant argues that we should infer counsel failed to advise him of this information because, according to Vaughns's declaration, he was "not certain" of the potential maximum and minimum sentences. However, defendant's argument is somewhat misleading. Vaughns attested that his research indicated the lowest sentence defendant faced by pleading to both counts would be nine years. However, after hearing from the judge in his chambers that "he could 'beat' the 8 years [offered by the prosecution]," Vaughns attested that he believed he must have "mis- calculated." Thus, while Vaughns's declaration reflects that he was clearly familiar with the relevant sentencing guidelines under section 1170, subdivision (b), he nonetheless relied on the judge's comment that suggested to him a lower sentence may be possible under the relevant law.
We conclude that Vaughns's reliance on the judge's comment, even if mistaken, was not necessarily outside the range of competence demanded of attorneys in criminal cases, particularly given the unique circumstance in this case that defendant had voluntarily reported his crime to the police even though the victim had remained silent, a factor weighing in favor of leniency. As the California Supreme Court has noted, while most felonies specify three possible terms of imprisonment (the lower, middle, and upper terms), a trial judge maintains a significant degree of discretion in sentencing, including the discretion to dismiss one or more charged offenses in the interests of justice, notwithstanding the three designated terms: "Within the limits set forth by the Legislature, a trial court has broad discretion to decide whether to grant probation (Cal. Rules of Court, rule 4.414); whether to select the upper, middle, or lower term of imprisonment (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(b)); whether to run the prison terms on multiple offenses concurrently or consecutively (§ 669; Cal. Rules of Court, rule 4.425); whether to stay punishment of one or more offenses (§ 654); whether to reduce a felony wobbler offense to a misdemeanor (§ 17, subd. (b)); and whether to dismiss one or more offenses or allegations in the interests of justice (§ 1385). Neither [citation] nor the People challenge a trial court's authority to exercise its discretion as to each of these choices following a trial or an 'open plea' [citation], and rightly so. 'The imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial functions.' [Citation.]" (People v. Clancey (2013) 56 Cal.4th 562, 579-580; see also People v. Felix (2000) 22 Cal.4th 651, 655.) Thus, while the trial judge's exercise of discretion in this case did not result in a sentence less than the prosecution's offer of eight years, we cannot conclude Vaughns's performance fell outside the relevant range of competence merely because he thought a lesser sentence could be possible. As Alvernaz cautions, "a defense attorney's simple misjudgment as to the . . . sentence a defendant is likely to receive upon conviction, among other matters involving the exercise of counsel's judgment, will not, without more, give rise to a claim of ineffective assistance of counsel. [Citations.] Such claim 'depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.' [Citations.]" (Alvernaz, supra, 2 Cal.4th at p. 937, citing McMann v. Richardson (1970) 397 U.S. 759, 771; see also People v. Burnett, supra, 71 Cal.App.4th at p. 180 [a " ' "strong presumption" ' " exists that counsel's conduct was " ' "within the wide range of reasonable professional assistance" ' "].)
Count one, rape of a child under age 14, to which defendant pleaded no contest, is punishable by imprisonment in state prison for terms of 9, 11 or 13 years. (§§ 261, subd. (a)(2), 264, subd. (c)(1).) Count two, forcible lewd act on a child, to which defendant also pleaded no contest, is punishable by imprisonment in state prison for terms of 5, 8 or 10 years. (§ 288, subd. (b)(1).) Because defendant's crimes involved a single victim on a single occasion, the trial court was not required to impose consecutive sentences. (See § 667.6, subd. (d).)
This leads us to the second example of deficient performance proffered by defendant—counsel's advice that defendant could trust that his open plea would result in a sentence more favorable than the prosecution's eight-year offer. However, as before, neither Vaughns's nor defendant's declaration attests that Vaughns told defendant he could trust that his open plea would in fact result in a lesser sentence. Rather, Vaughns attested that he himself trusted that the judge "would sentence [defendant] to less than the eight year offer as he indicated" based on his previous sentencing negotiations before the judge. The advice he gave defendant, however, was that it was "his choice" whether to accept or reject the prosecution's eight-year offer, while further mentioning to defendant his belief that, "if any judge could craft an appropriate sentence, it would be [this judge]." Defendant's declaration does not contradict Vaughns on this point: "[B]ecause the judge told my attorney . . . that he could do better than that the District Attorney was asking if I pled open to him that's why I did it [because] to me [it] was clear that the sentence would of been less than 8 years . . . ." (Sic.) At the same time, defendant acknowledged knowing that "no promises are made when pleading open . . . ." Consistent with his declaration statements, defendant represented to the trial court before entering his open plea that, among other things, his attorney had informed him of the consequences of his plea and that no one had made "any other promises or representations to you to get you to change your plea[.]"
On this record, there is no basis to conclude Vaughns's representation was constitutionally deficient. In particular, the record reflects that Vaughns's "trust" in the trial judge's statement that he "could 'beat' " the prosecution's eight-year offer was not mere blind hope or ignorance of the statutory sentencing protocol for felony offenses. Rather, it was based on Vaughns's past experience negotiating sentences before this particular trial judge, which experience led him to conclude the judge customarily made "reasonable and creative" sentencing decisions. In addition, Vaughns reasonably advised defendant that, ultimately, it was his choice to accept or reject the prosecution's eight-year offer in exchange for pleading to one count, a choice necessarily impacting his decision to take or reject the open plea to both counts. In presenting this choice to defendant, Vaughns reasonably communicated the trial judge's apparent willingness to try to reach a lower sentence, as well as his judgment that pleading was a better alternative than going to trial given that defendant had admitted the charges and that the victim was "willing and able to testify against him." (See Alvernaz, supra, 2 Cal.4th at p. 933 [a "defendant can be expected to rely on counsel's independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial"].) At no point, however, did Vaughns suggest to defendant, nor could he have reasonably suggested, that the trial judge's words constituted a promise of a sentence of eight years or less. Indeed, both parties appear to recognize the trial judge did not give an "indicated sentence" in defendant's case, much less a promise of any particular sentence, which would have been improper: "[A]n indicated sentence is not a promise that a particular sentence will ultimately be imposed at sentencing. Nor does it divest a trial court of its ability to exercise its discretion at the sentencing hearing, whether based on the evidence and argument presented by the parties or on a more careful and refined judgment as to the appropriate sentence. . . . Thus, even when the trial court has indicated its sentence, the court retains its full discretion at the sentencing hearing to select a fair and just punishment." (People v. Clancey, supra, 56 Cal.4th at p. 576.)
Accordingly, for the reasons stated, we conclude defendant has failed to meet the first prong of the Strickland standard requiring proof of constitutionally deficient legal counsel.
II. Resulting Prejudice.
Moreover, even assuming for the sake of argument defendant received ineffective assistance because he was not explicitly warned by Vaughns that, by pleading open, he potentially faced a sentence in excess of the prosecution's eight-year offer, we would nonetheless find no prejudice on this record for this simple reason: The trial court made that fact amply clear before accepting defendant's plea. (See Alvernaz, supra, 2 Cal.4th at p. 937 [prejudice is established only if there is a reasonable probability that, but for counsel's deficient performance, defendant would have accepted the proffered plea bargain and the trial court would then have accepted it]; Strickland, supra, 466 U.S. at p. 693 ["not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding"].)
In particular, in addition to Vaughns's advice to defendant that it was his choice whether to accept the prosecution's plea deal, the trial court queried defendant extensively before accepting his no contest plea regarding his understanding of the open plea process. Among other things, the trial court sought and received defendant's affirmation that, "[o]ther than what's been stated in open court today," nobody has "made any other promises or representations to you to get you to change your plea[.]" The trial court also made amply clear to defendant that it indeed had discretion to impose a sentence harsher than eight years:
"[THE COURT:] Based on [your] plea, whatever time you are to receive will be left up to me at the time of your sentencing. [¶] Is that your understanding?
"THE DEFENDANT: Yes.
"THE COURT: And you need to understand that the [section] 261(a)(2) [offense] carries sentences of 9, 11 and 13 years. [¶] Do you understand that?
"THE DEFENDANT: I do.
"THE COURT: You also need to understand that the [section] 288(b)(1) [offense] carries terms of 5, 8 and 10 years. [¶] Do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Okay. Now, you need to be advised that any one of those combinations of those numbers could end up being your sentence. [¶] You understand that?
"THE DEFENDANT: Yes." (Italics added.)
Thus, while we agree with defendant the "crucial decision to reject a proffered plea bargain . . . should not be made by a defendant encumbered 'with a grave misconception as to the very nature of the proceeding and possible consequences' " (Alvernaz, supra, 2 Cal.4th at p. 936), in this case, there was no such misconception in light of the trial court's comprehensive set of admonishments given to defendant at the time of his plea. (See id. at p. 938 [defendant's "self-serving" statement in his declaration that, had he been given adequate advice, he would have accepted the plea offer, is insufficient by itself to establish prejudice].)
Accordingly, we conclude defendant has not established on this record that, but for deficient advice from counsel, he would have taken the prosecution's eight-year offer rather than enter an open plea in the trial court, thereby achieving a less severe punishment. His ineffective assistance claim thus fails. (See People v. Archer (2014) 230 Cal.App.4th 693, 707 [ineffective assistance claim fails where "there is no evidence that Archer received incorrect advice that caused him to accept the plea deal"].)
III. Correction of the Abstract of Judgment.
Lastly, the parties agree there is a correctable error in the abstract of judgment that must be addressed. Specifically, the terms for counts one and two are reversed on the abstract of judgment, such that a term of five years is stated on count one (forcible rape upon a child), and a term of three years eight months is stated on count two (forcible lewd act upon a child). The parties agree that, in fact, the trial court imposed a five-year term on count two after selecting this count as the base term, and a three-year eight-month term on count one, representing one-third of the 11-year middle term on count one. The record confirms this fact. Accordingly, we agree the abstract of judgement must be amended to accurately reflect defendant's sentence.
DISPOSITION
The abstract of judgment shall be amended to reflect that the trial court imposed a five-year term on count two and a consecutive three-year eight-month term on count one. The judgment is affirmed in all other regards and, additionally, the petition for writ of habeas corpus is denied. Upon remittitur issuance, the clerk of the superior court is to prepare an amended abstract of judgment and deliver a copy to the Department of Corrections and Rehabilitation.
/s/_________
Wick, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.
Judge of the Superior Court of Sonoma County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------