Opinion
C087942
03-24-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM LEE SYLVESTER et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F06425)
A jury found defendants Lance Dee Clemens and William Lee Sylvester guilty of first degree murder (count one) of a fellow inmate and unlawful possession of a weapon—an inmate-manufactured knife—by a prisoner (counts two and three, respectively). The jury also found true with respect to count one that defendants personally used a deadly and dangerous weapon in the commission of the offense. (Pen. Code, § 12022, subd. (b)(1).) The jury found true the special circumstance that defendants intentionally killed the victim by means of lying in wait. (§ 190.2, subd. (a)(15).) In a bifurcated proceeding, Sylvester admitted the special circumstance that he committed the murder after previously having been convicted of first degree murder. (§ 190.2, subd. (a)(2).) Sylvester also admitted he had suffered a prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12) and a prior serious felony conviction (§ 667, subd. (a)). Clemens admitted three prior strike convictions and three prior serious felony convictions.
Undesignated statutory references are to the Penal Code.
The trial court sentenced both defendants to life in prison without parole for count one, plus a one-year term for the weapon enhancement. The court ordered that defendants' sentences for count one be served consecutive to any other term they were serving. The court sentenced Sylvester to an additional term of five years for his prior serious felony conviction enhancement and Clemens to an additional 15 years for his prior serious felony conviction enhancements. The court stayed the sentences on counts two and three pursuant to section 654. The court imposed on each defendant a $400 restitution fine under section 1202.4 and a $400 parole revocation restitution fine under section 1202.45. The latter was suspended pending successful completion of parole. The abstracts of judgment as to each defendant also reflect a $60 court operations assessment under section 1465.8, and an $80 court facilities assessment under Government Code section 70373, but neither was orally pronounced.
The minutes reflect an $80 court operations assessment under section 1465.8, and a $60 court facilities assessment under Government Code section 70373.
On appeal, defendants argue: (1) there was insufficient evidence to support their convictions for first degree murder based on a lying-in-wait theory and the jury's true finding on the special circumstance of lying in wait; (2) we must remand to allow the trial court to consider whether to exercise its new discretion under Senate Bill No. 1393 (Stats. 2018, ch. 1013) to strike or dismiss the enhancements imposed for prior serious felony convictions; (3) their parole revocation fines must be stricken because they were sentenced to life without the possibility of parole; and (4) imposition of the restitution fine (§ 1202.4) and the assessments reflected in the abstract of judgment are improper absent an ability to pay determination. Additionally, defendants request that we review records relating to two in camera hearings the trial court conducted to determine whether its rulings were proper. Based on our review, we conclude the trial court did not abuse its discretion in finding that additional disclosures were not required. We agree defendants' parole revocation fines must be stricken. The judgments should also be modified to impose an $80 court operations assessment under section 1465.8, and a $60 court facilities assessment under Government Code section 70373. We will remand the case for the trial court to exercise its discretion under Senate Bill No. 1393. The judgments are otherwise affirmed as modified.
I. BACKGROUND
A correctional officer employed at California State Prison Sacramento (also known as New Folsom Prison) testified that, on October 7, 2011, he was the observation officer tasked with videotaping and monitoring the B-Facility 3-Block Secured Housing Unit group exercise yard. The officer was armed with a rifle. His shift started at around 6:30 a.m. He checked the yard for weapons and other contraband. At around 7:35 a.m., eight inmates—"the White Group"—entered the yard, including Sylvester, Clemens, and the victim. The inmates had been strip searched and checked with a metal detector for weapons and contraband. The observation officer explained that, upon entering the yard, the inmates engaged in their usual routine of talking amongst each other and shaking hands.
As the officer was operating the surveillance camera, he heard grunting and a sound like a glove hitting a boxing bag. He saw Sylvester and Clemens standing over another inmate who was face down with blood on the back of his shirt. The officer pushed an alarm and yelled at defendants to get down, but they continued to strike the inmate with what looked like stabbing motions. The officer raised his rifle and racked a round, which made a loud metallic sound. Defendants then moved away from the victim. After Sylvester got down, the officer zoomed the surveillance camera in on him and noticed a weapon about two feet away.
A correctional sergeant ran to the yard in response to the alarm. After the victim was removed from the yard, the sergeant and other officers searched the other inmates, who were lying flat on the ground, for weapons. The sergeant saw Clemens crawl, and the sergeant noticed a weapon where Clemens had previously been. The sergeant also saw a weapon about two feet away from Sylvester.
The surveillance video was played for the jury, and the observation officer identified defendants. The video starts just before 7:40 a.m. with only the lower half of inmates in the northern part of the yard visible at the top of the frame. Inmates walk back and forth and in and out of the picture and, at about 7:41:40 a.m., defendants are standing together by themselves in the top right of the frame, but only their feet are visible. Clemens then becomes fully visible as he walks south. He touches hands with another inmate along the way, and then continues walking out of the bottom of the frame. Sylvester walks in the same direction and, just as he leaves the bottom of the frame, Clemens reenters the frame and walks toward the northern yard. Sylvester then reemerges and walks toward the northern yard. As he does so, the victim walks toward Sylvester, the two inmates appear to touch hands or exchange something, and then they walk toward the northern wall together. They stop briefly along the way. The observation officer has now readjusted the view so that the northern wall is visible. At the wall, Sylvester bends over and picks something up. A few seconds later, at 7:43:11 a.m., the victim bends over and stays bent over. Clemens is walking around in the center of the frame with other inmates until he stops and faces the victim. Meanwhile, Sylvester walks toward the group of inmates in the center of the yard and then defendants both walk to where they are several feet away from the victim and directly behind him. At about 7:43:30 a.m., defendants walk together toward the victim with Sylvester in front. Sylvester appears to crouch slightly and pull something out of his sock as he approaches. Sylvester reaches the victim first and starts stabbing. Clemens follows, also appearing to pull something out of his sock as he approaches, and then he too stabs the victim.
The two weapons recovered in the yard were similar in size (5.5 and 6.5 inches long) and wrapped in bloody cloth.
The forensic pathologist who conducted an autopsy on the victim testified that the victim died of multiple stab wounds to the neck and torso.
II. DISCUSSION
A. Sufficiency of the Evidence of Lying in Wait
The prosecution presented two alternative theories of defendants' first degree murder liability: (1) that the killing was willful, deliberate, and premeditated murder or (2) that the murder was committed by means of lying in wait. (§ 189.) The jury found defendants guilty of first degree murder. The jury also found true the associated lying-in-wait special-circumstance allegation. (§ 190.2, subd. (a)(15).) Defendants argue there was insufficient evidence to support their convictions for first degree murder based on a lying-in-wait theory and the jury's true finding on the special circumstance of lying in wait. We disagree.
The requirements for establishing the lying-in-wait special circumstance differ slightly and are more stringent than the requirements for establishing lying-in-wait first degree murder because the former requires an intent to kill, while the later " 'requires only a wanton and reckless intent to inflict injury likely to cause death.' " (People v. Cage (2015) 62 Cal.4th 256, 278; accord People v. Johnson (2016) 62 Cal.4th 600, 633.) As a result, "[w]here the evidence supports the special circumstance, it necessarily supports the theory of first degree murder." (People v. Cage, supra, at p. 278; accord People v. Johnson, supra, at pp. 633-634.)
"The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.' [Citations.] The standard is the same under the state and federal due process clauses. [Citation.] We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (People v. Clark (2016) 63 Cal.4th 522, 610.)
" 'The lying-in-wait special circumstance requires proof of " ' "an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) . . . a surprise attack on an unsuspecting victim from a position of advantage." ' " ' " (People v. Clark, supra, 63 Cal.4th at p. 628; accord People v. Johnson, supra, 62 Cal.4th at p. 629.)
Our Supreme Court has "explained the elements of the lying-in-wait special circumstance as follows. ' " 'The element of concealment is satisfied by a showing " 'that a defendant's true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.' " ' [Citation.]" ' [Citation.] As for the watching and waiting element, the purpose of this requirement 'is to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse. [Citation.] This period need not continue for any particular length " 'of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.' " [Citation.]' [Citation.] 'The factors of concealing murderous intent, and striking from a position of advantage and surprise, "are the hallmark of a murder by lying in wait." ' " (People v. Mendoza (2011) 52 Cal.4th 1056, 1073, fn. omitted.)
Clemens asserts that the prosecution's theory of a planned ambush is not supported by substantial evidence. Sylvester argues there was no substantial period of watching and waiting for an opportune time to act. Both defendants support their arguments by further contending there was no evidence of how the weapons got into the yard or the nature of defendants' interactions with their victim prior to their attack. The surveillance video suggests the weapons were concealed in defendants' socks, but does not show this occurring while they were in the yard. It was therefore not speculative, but rather reasonable, for the jury to infer defendants snuck the weapons into the yard as the prosecutor had argued. More importantly, it was reasonable for the jury to infer that obtaining weapons—however this was accomplished—despite being searched and surveilled, reflected planning. Additionally, the record supports the conclusion that defendants concealed their intent to kill. Defendants' actions did not draw the attention of the officer charged with observing them until it was too late. The officer's testimony and the video he recorded show defendants meeting but also behaving in their usual manner prior to approaching the victim together from behind, indicating that they killed based on a plan and not something that happened during their brief interactions with the victim. The fact the victim bent over with his back to the other inmates demonstrates he was not suspicious that an attack was coming, and defendants successfully concealed their plan. We reject Sylvester's assertion that because the attack was over only a few minutes after the inmates entered the yard that defendants did not watch and wait for an opportune time to act. Our Supreme Court has explained that a few minutes can be a substantial period of watchful waiting and the precise period of time involved is not critical. (People v. Moon (2005) 37 Cal.4th 1, 23.) Here, several minutes elapsed on the video before the victim bent over at the wall. Seeing that their victim was in an ideal position for an attack from behind, defendants acted quickly and deliberately to complete their surprise attack on their unsuspecting victim from their position of advantage. The fact that defendants did not have to wait long to do so does not negate the nature of their crime.
Clemens appears to argue it would be unreasonable for the jury to assume defendants planned to ambush their victim in full view of the guards. Clemens conflates the reasonableness of defendants having such a plan with the reasonableness of the jury drawing the conclusion that defendants had such a plan. The evidence is more than substantial that defendants planned to ambush their victim in full view of the guards. Whether this was a reasonable choice is not dispositive.
Substantial evidence supports the jury's true finding on the special circumstance of lying in wait and therefore defendants' convictions for first degree murder based on a lying-in-wait theory. B. In Camera Hearings
Defendants request that this Court examine records relating to in camera hearings the trial court conducted on December 9, 2016, and February 23, 2018, to determine whether its rulings were proper. The People have agreed to this request.
1. 2016 Hearing
On October 27, 2016, the prosecution filed a request for the trial court to conduct an ex parte, in camera review under section 1054.7 and Evidence Code sections 915, subdivision (b) and 1042, subdivision (d) regarding the discoverability of certain evidence in its possession that had not been provided to the defense, and the application of any privileges. On December 9, 2016, the court reviewed the evidence in camera, and ordered the records sealed and kept confidential.
2. 2018 Hearing
On July 25, 2017, the prosecution issued a subpoena duces tecum to the Department of Corrections and Rehabilitation (CDCR) seeking records relating to a hand-written autobiography Clemens prepared in May 2017, "including all so called 'debriefing' documents such as Inmate Clemens'[s] CDCR Inmate Request for Interview form, IGI S. Ramirez'[s] CDCR 128 Chrono dated December 29[], 2016, a copy of the Autobiography Instructions provided to Inmate Clemens, and a second CDCR 128 Chrono prepared by IGI S. Ramirez." The prosecution stated the records were discoverable to the defense under state and federal law, and were necessary for the successful prosecution of the case.
CDCR moved to quash the subpoena on the grounds that it was overbroad and lacked sufficient good cause. CDCR also argued the subpoena sought disclosure of confidential and privileged information protected by Evidence Code sections 1040, subdivision (a), and 1041. CDCR asserted the court should conduct an in camera review.
On January 19, 2018, the court held a hearing on the motion to quash, and it was agreed that the parties would return on February 23, 2018, for an in camera review. In the meantime, the court would review the preliminary hearing transcript in order to obtain context for its review.
On February 23, 2018, the court conducted an in camera review of a proposed redacted version of the documents to be disclosed to the defense and the unredacted documents. Based on its review, the court ordered the redacted version, and two additional pages that CDCR had requested to be redacted, released subject to a protective order. "Other than that, all of the redacted portions, the Court finds are either not material to any issue in this case, would not lead to discoverable evidence, and/or would pose an unnecessary risk to others." CDCR provided the redacted records to the parties as ordered.
3. No Abuse of Discretion
Section 1054.1 requires the prosecution to disclose to the defense certain categories of evidence in its possession. "That discovery obligation is qualified, however, by section 1054.7, which authorizes a trial court to deny, restrict or defer such disclosure on a showing of good cause." (People v. Thompson (2016) 1 Cal.5th 1043, 1105.) " 'Good cause' is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement. [¶] Upon the request of any party, the court may permit a showing of good cause for the denial or regulation of disclosures, or any portion of that showing, to be made in camera. A verbatim record shall be made of any such proceeding." (§ 1054.7.) If the court grants the relief requested by the prosecution, "the entire record of the showing shall be sealed." (Ibid.)
Similar procedures apply to claims of privilege under Evidence Code section 1040 et seq. (Evid. Code, § 915, subd. (b).) "Evidence Code section 1040, subdivision (b)(2), authorizes the trial court to decline to disclose confidential records maintained by a public entity when it finds the 'necessity for preserving the confidentiality of the information . . . outweighs the necessity for disclosure in the interest of justice.' [Citations.] This provision is applicable to prison inmate records." (People v. Landry (2016) 2 Cal.5th 52, 73.) "Evidence Code section 1041 codifies the common law privilege against disclosure of the identity of a confidential informant." (People v. Galland (2008) 45 Cal.4th 354, 363.)
" 'Parties who challenge on appeal trial court orders withholding information as privileged or otherwise nondiscoverable "must do the best they can with the information they have, and the appellate court will fill the gap by objectively reviewing the whole record." ' " (People v. Landry, supra, 2 Cal.5th at p. 74.) We review the trial court's rulings for abuse of discretion. (Id. at p. 73; People v. Thompson, supra, 1 Cal.5th at p. 1105.) At Sylvester's request, we reviewed the sealed transcripts of the in camera hearings of December 9, 2016, and February 23, 2018, the unsealed transcripts of the January 19, 2018, and February 23, 2018, hearings, the confidential documents transmitted to this court, and the preliminary hearing transcript. The unredacted documents the trial court reviewed on February 23, 2018, are not in the appellate record, but neither are the redacted documents that CDCR produced to defendants for us to compare. Thus, defendants would not have met their burden to show error by an adequate record in any event. (In re Kathy P. (1979) 25 Cal.3d 91, 102.) Regardless, the court's description of the contents of the documents and the proposed redactions is sufficient for purposes of our review. (Cf. People v. Mooc (2001) 26 Cal.4th 1216, 1229.) Having completed our review, we conclude the trial court did not abuse its discretion in rejecting further disclosure of the materials discussed. C. Senate Bill No. 1393
On November 27, 2018, Sylvester requested that the record be augmented to include various items related to the in camera hearings, including the redacted documents that were provided to his investigator. On December 7, 2018, we granted his request. On April 2, 2019, Sylvester withdrew his request for the redacted documents because they had been obtained from other sources. On January 14, 2020, a clerk's declaration from the trial court was filed explaining that the unredacted documents could not be located. --------
Defendants were sentenced on September 7, 2018. Both received sentences that were enhanced by prior serious felony convictions pursuant to section 667, subdivision (a). Effective January 1, 2019, the trial court now has discretion under section 1385 to strike or dismiss an enhancement imposed pursuant to section 667, subdivision (a) as the result of amendments to both statutes. (See Stats. 2018, ch. 1013, §§ 1, 2.) Defendants argue we must remand to allow the trial court to consider whether to exercise this new discretion. This court has previously held that these amendments apply retroactively to cases pending on appeal—a proposition the People concede—and therefore a remand for resentencing is required unless the record clearly indicates the trial court would not in any event exercise this new discretion in the defendant's favor. (People v. Franks (2019) 35 Cal.App.5th 883, 892-893; People v. Jones (2019) 32 Cal.App.5th 267, 272-273.) The People also concede that, on the present record, we cannot find that a remand would be futile. We agree. We will accordingly vacate the present sentences and remand for their reconsideration. D. Fines and Fees
At sentencing, the trial court ordered each defendant to pay a $400 restitution fine under section 1202.4. The court also imposed a $400 parole revocation restitution fine under section 1202.45, suspended pending successful completion of parole. The minutes reflect an $80 court operations assessment under section 1465.8, and a $60 court facilities assessment under Government Code section 70373. Conversely, the abstracts of judgment reflect a $60 court operations assessment, and an $80 court facilities assessment. Neither assessment was orally pronounced.
1. Parole Revocation Fines
Section 1202.45, subdivision (a) provides: "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." This fine "shall be suspended unless the person's parole . . . is revoked." (§ 1202.45, subd. (c).) Defendants argue, and the People concede, their parole revocation fines must be stricken because they were sentenced to life without possibility of parole and no additional unstayed determinate term that would carry with it a period of parole. (See People v. Brasure (2008) 42 Cal.4th 1037, 1075.) We accept the concession. (People v. McWhorter (2009) 47 Cal.4th 318, 324, 380; People v. Battle (2011) 198 Cal.App.4th 50, 58, 63.)
2. Oral Pronouncement of Court Operations and Court Facilities Assessments
Defendants contend, and the People agree, that the court's oral pronouncements govern, and the minute order and the abstracts of judgment must be corrected to delete the assessments that were not orally imposed. We disagree. While an oral pronouncement of judgment generally controls over the minutes and abstract of judgment (People v. Zackery (2007) 147 Cal.App.4th 380, 385), until recently it appeared settled that the court operations and court facilities assessments are mandatory "and may be added on review" (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2).
The rule that these assessments are mandatory regardless of ability to pay was analyzed in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under []section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The Dueñas court also held "that although []section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.) The People's concession is therefore implicitly based on the validity of these conclusions. Our Supreme Court is now poised to address them, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted November 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96.)
In the meantime, as we will discuss next, we join several other courts in concluding that the principles of due process and equal protection do not afford a defendant a hearing on and determination of his ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (E.g., People v. Kingston (2019) 41 Cal.App.5th 272, 279-282; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1068; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) As a result, the assessments remain mandatory, and we will not strike them from the minutes or the abstracts of judgment based on the trial court's failure to orally pronounce them at sentencing. Nonetheless, the abstracts of judgment must be corrected because they transposed the correct amounts of the assessments, which were accurately reflected in the minutes. The judgment should be corrected to impose an $80 court operations assessment under section 1465.8, and a $60 court facilities assessment under Government Code section 70373.
3. Ability to Pay
Defendants argue, under Dueñas, that it violates their rights to due process and equal protection to impose the assessments and the section 1202.4 restitution fine without determining their ability to pay them. They also seek remand for a hearing regarding their ability to pay.
As we have indicated, we are not persuaded that the analysis used in Dueñas is correct. The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12, which itself rested on the "constitutional guaranties of due process and equal protection" and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin v. Illinois, supra, at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (Hicks, supra, 40 Cal.App.5th at p. 326, rev. granted; People v. Aviles, supra, 39 Cal.App.5th at pp. 1068-1069; People v. Caceres, supra, 39 Cal.App.5th at p. 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).) Griffin also stated broadly, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin, supra, at p. 19.) Another line of cases relied upon by Dueñas utilizes this "principle of 'equal justice' " and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, supra, at pp. 1166-1168.) The fine and assessments at issue in Dueñas and this appeal subject an indigent defendant "only to a civil judgment that she [or he] cannot satisfy." (Dueñas, supra, at p. 1167; see also id. at p. 1169.) Further, defendants were in prison when they committed their current offenses and have been sentenced to life without parole based for these offenses. Thus, the authorities prohibiting incarceration for indigence alone are also inapplicable. (Hicks, supra, at p. 326; People v. Caceres, supra, at p. 927.)
We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (Hicks, supra, 40 Cal.App.5th at p. 329, rev. granted; People v. Aviles, supra, 39 Cal.App.5th at p. 1069; People v. Caceres, supra, 39 Cal.App.5th at p. 928.) Defendants' claims pursuant to Dueñas are without merit.
III. DISPOSITION
The judgments are modified to: (1) strike the section 1202.45 parole revocation restitution fines, (2) impose an $80 court operations assessment under section 1465.8, and (3) impose a $60 court facilities assessment under Government Code section 70373. The trial court is directed to prepare amended abstracts of judgment accordingly and to forward certified copies to the Department of Corrections and Rehabilitation.
Additionally, the matter is remanded to the trial court to consider exercising its discretion under sections 667 and 1385 to strike prior serious felony conviction enhancements. If this consideration results in any additional changes, the trial court is directed to further amend the abstract(s) of judgment reflecting its judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
The judgments are otherwise affirmed as modified.
/S/_________
RENNER, J.
We concur:
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RAYE, P. J.
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HULL, J.