P. v. Garcia

 

 

 

 

 

 

 

 

 

 

Filed 11/14/13  P. v. Garcia CA2/5

 

 

 

 

 

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   CESAR GARCIA et al.,               Defendants and Appellants.

B244293         (Los Angeles County       Super. Ct. No. PA067947)

 

            APPEAL from
judgments of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Dalila C. Lyons, Judge.  Affirmed with directions.

            Benjamin
Owens, under appointment by the Court of Appeal, for Defendant and Appellant
Cesar Garcia.

Murray A. Rosenberg, under
appointment by the Court of Appeal, for Defendant and Appellant Adam Ortiz

Comar Law and D. Inder Comar, under
appointment by the Court of Appeal, for Defendant and Appellant Michael Angelo
Montelongo.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II and Steven
E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

>

            Following a
jury trial, appellants Adam Ortiz, Cesar Garcia and Michael Montelongo were
found guilty of first degree residential
burglary (Pen. Code, § 459)href="#_ftn1"
name="_ftnref1" title="">[1]  and attempted first degree residential
burglary (§§ 459, 664).  The jury also
found the offenses were committed for the benefit of, or in association with, a
criminal street gang (§ 186.22, subd.
(b)(1)).  Garcia admitted having a prior
conviction within the meaning of section 667.5, subdivision (b).  Montelongo admitted having a prior conviction
within the meaning of sections 1170.12, subdivisions (a) through (d), 667,
subdivision (a)(1) and 667.5, subdivision (b). 
A state prison sentence was imposed for all three men as follows:  Garcia—13 years, 4 months; Ortiz—14 years, 4
months; and Montelongo—21 years. 

            Appellants
contend there was insufficient evidence to support the verdicts of attempted
first degree burglary and the finding that the crimes were gang related.  They also argue the trial court incorrectly
instructed the jury on the elements of attempted burglary.  We find the evidence of attempted burglary
sufficient and, although the trial court misinstructed on an element of
attempted burglary, the error was harmless beyond a reasonable doubt.  These contentions are, therefore, rejected.

            Errors are
also alleged with respect to the abstracts of judgment.  Appellants contend the trial court
incorrectly calculated their presentence custody credit.  Garcia contends the restitution and parole
revocation fines must be stricken from the abstract of judgment because they
were not orally imposed by the trial court. 
Montelongo argues, although the trial court imposed the middle term for
attempted burglary, the abstract of judgment reflects the trial court imposed
the upper term.  For the most part, respondent
concedes these errors.  We accept
respondent’s concessions, find appellants’ claims meritorious, and order the
abstract of judgment modified accordingly.    


 

 

 

 

I.  FACTS

 

A.  Prosecution

 

1.  The Offenses

 

            Diana
Davtyan was the named victim of the attempted burglary charge.  On June
1, 2010, at approximately 12 noon,
a young female with black hair in a ponytail knocked on the front door of
Davtyan’s home on Creemore Drive
in Tujunga.  When Davtyan answered the
door, the woman asked if “Steve” lived at the residence.  Davtyan indicated there was nobody by that
name living at the house and closed her door. 
Approximately 30 minutes later, when Davtyan was outside her home, she
observed the woman walking between Davtyan’s home and the home of Terri McIntee—Davtyan’s
next-door neighbor.  The woman told
Davtyan that she had not located Steve and walked toward a white or gold
van.  

            At
approximately 12:30 p.m., Joanne
Pope heard someone continuously ringing her doorbell and pounding on her door to
her home on Creemore Drive.  She observed a Hispanic woman with long dark
brown or black hair walk past her window. 
Pope was alone in the house and chose not to open the door because the
circumstances seemed abnormal.  The woman
left the doorway and walked to a van that was parked in front of Sharon
Paczkowski’s home, next-door to Pope’s home. 


            When the
woman entered the van, two Hispanic men got out of it.  The men walked toward Pope’s home, and walked
between her home and Paczkowski’s home. 
After Pope’s dog began barking, the men returned to the van.  A third man exited the van and walked up
Paczkowski’s driveway.  Pope lost sight
of him and, after a few minutes, the man appeared and returned to the van.  

            Pope called
Paczkowski, explained her observations, and then called 911.  The van proceeded up the street and
stopped.  The third man exited the van
and walked up Paczkowski’s driveway and returned to the van as he had done
previously.  The van did not have any
license plates. 

            In response
to the 911 call, Los Angeles Police Officer Matt Siebert and his partner
Officer Abraham Rivera arrived in the area of Creemore
Drive at approximately 1:00 p.m. to look for a vehicle matching the description
of a silver Chrysler Pacifica.  He
observed codefendant Tatiana Thibeshref="#_ftn2"
name="_ftnref2" title="">[2] sitting in the driver’s
seat of a vehicle matching the description. 
The back window of the vehicle was smashed and the vehicle did not have
any license plates.  Seibert drove next
to Thibes and spoke with her.  Thibes
indicated she had been in an argument with her boyfriend and he had broken the
window.  

            The officer
continued up the street, made a U-turn and returned to Thibes.  He asked Thibes if she was okay and she
replied, “Yes.”  The officers drove away
but continued to monitor the van.  The
van pulled away from the curb at a high rate of speed.  Siebert temporarily lost sight of the
van.  Siebert made a U-turn and drove
west on Creemore Drive.  The gate of a residence at the intersection
of Pali Avenue and Creemore
Drive was open. 
The officers were flagged down by a woman who indicated she observed
three men jump a fence on the corner of Pali Avenue
and Creemore Drive. 

            The
officers turned onto Pali Avenue
and observed the van with three Hispanic males inside, parked along the curb.  The van pulled away and the officers pursued
it at a high rate of speed.  The vehicle
ran through two stop signs and eventually crashed at the onramp to the 210
Freeway.  Thibes and appellants were
removed from the van and arrested.  Pope
arrived on the scene and indicated she was confident the van was the same one
she had previously observed.  She said
appellants’ haircuts, skin color and height were similar to the three men she
had previously seen.  

            Appellants
were each carrying a $100 bill.  The van
contained several rubber gloves, a knife, two screwdrivers, a small black
hammer and a blue backpack.    

            Terri McIntee’s
home was ransacked.  A gate to the home
had been pulled open and the sliding glass door at the rear of the house was
open.  Her dog was in a carrier rather
than the “playpen” she had left it in. 
There were pillowcases in the backyard full of computers, cameras, and
jewelry from the bedrooms.  Various
electronics were scattered throughout the house.  Mattresses in the bedrooms were flipped
up.  Three $100 bills were missing from a
graduation card in her daughter’s bedroom. 
Additionally, fresh pry marks were discovered on Paczkowski’s front
door. 

 

2.  Gang Evidence

 

            The
prosecutor’s gang expert was Los Angeles Police Officer Jason Abner.  He had been a police officer for over 16
years and worked with the gang enforcement detail for 4 years.  He was assigned to monitor the Temple
Street gang. 
The primary activities of the gang included homicide, robbery, burglary,
felony vandalism and weapons possession. 
These activities produced revenue and benefitted the gang by instilling
fear of the gang in the community.  

            The Temple
Street gang was not active in Tujunga.  The gang insignia included “Temple,”
“TST,” “VTR” and a “T” formed by one’s hand.  


            Abner
personally knew Garcia and Ortiz.  Garcia
had a tattoo on his neck of a needle with a “T” and “Street” across the “T.”  He had a “T” near his right eye and three
dots by his left eye signaling “my crazy life.” 
Ortiz had the following tattoos:  “Temple”
across his back and neck; “TST” on the side of his head; “T” near his left eye;
“PWLS” above his right eyebrow, which was an abbreviation for the Temple Street
“peewee locos” clique; “1923” across his chest, which was the year Temple Street
was organized; “Westside” across his stomach denoting the part of Los Angeles
west of the 110 Freeway; and a female wearing a hat with a “T” on it.  Both men admitted to being members of the Temple
Street gang.  


            Abner knew
about Montelongo from his conversations with two other officers.  Montelongo had “Temple”
tattooed across his chest and “Westside TST” tattooed across his entire
back.  Like his cohorts, he admitted
membership in the Temple Street
gang.  

            After given
a hypothetical consistent with the facts of the case, the officer opined
appellants’ conduct was “definitely in association with a gang.”  Additionally, committing the crimes in
Tujunga was monetarily beneficial to the gang because of a reduced risk that
the families of the gang members would be affected and, because the area was
affluent, the gang members were more likely to have opportunities to steal
valuable merchandise.  

 

B.  Defense

 

            A college
professor, Bill Sanders, taught courses in criminology, juvenile justice, gangs
and drug use.  He had 10 publications
addressing gang culture but was not specifically familiar with the Temple
Street gang.  In his opinion, gang
members commit robberies and burglaries for their individual benefit and do not
share the loot with the gang.   

 

II.  DISCUSSION

 

A.  Challenges to the Sufficiency of the Evidence

 

            In
reviewing a challenge to the sufficiency of the evidence, we “consider the
evidence in a light most favorable to the judgment and presume the existence of
every fact the trier could reasonably deduce from the evidence in support of
the judgment.  The test is whether
substantial evidence supports the decision, not whether the evidence proves
guilt beyond a reasonable doubt.”  (>People v. Mincey (1992) 2
Cal.4th 408, 432, fn. omitted.)  Our
sole function is to determine if any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.  (>Jackson v. Virginia (1979) 443
U.S. 307, 318-319.)  The standard of
review is the same in cases where the prosecution relies primarily on href="http://www.mcmillanlaw.com/">circumstantial evidence.  (People v. Rodriguez (1999) 20 Cal.4th
1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792.)  “Reversal on this ground is unwarranted
unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’”  (People v. Bolin (1998) 18 Cal.4th 297,
331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) 

 

1.  Attempted Burglary

 

            “Every
person who enters any house . . . with intent to commit grand or petit larceny
or any felony is guilty of burglary.”  (§
459.)  â€œEvery burglary of an inhabited
dwelling house . . . is burglary of the first degree.”  (§ 460.)  â€œAn attempt to commit a crime requires the
specific intent to commit the target crime . . . and a direct but ineffectual
act, beyond mere preparation, done towards its commission.”  (People v. Booker (2011) 51 Cal.4th
141, 175.)

            “Under
California law, a person who aids and abets the commission of a crime is a ‘principal’
in the crime, and thus shares the guilt of the actual perpetrator.”  (People v. Prettyman (1996) 14 Cal.4th
248, 259, citing § 31.)  â€œâ€˜[A] person
aids and abets the commission of a crime when he or she, acting with (1)
knowledge of the unlawful purpose of the perpetrator; and (2) the intent or
purpose of committing, encouraging, or facilitating the commission of the
offense, (3) by act or advice aids, promotes, encourages or instigates, the
commission of the crime.’”  (People v.
Gonzales (2011) 52 Cal.4th 254, 295-296, quoting People v. Beeman
(1984) 35 Cal.3d 547, 561.)

            “Whether a person has aided and
abetted in the commission of a crime is a question of fact, and on appeal all
conflicts in the evidence and attendant reasonable inferences are resolved in
favor of the judgment.  Among the factors
which may be considered in determining aiding and abetting are:  presence at the crime scene, companionship,
and conduct before and after the offense.”  (In re Juan G. (2003) 112 Cal.App.4th
1, 5, fn. omitted; People v. Campbell (1994) 25 Cal.App.4th 402, 409.)

            A rational trier of fact could have
concluded that when Thibes knocked on Davtyan’s door she was working with
appellants to find a home to burglarize. 
This is based on the activities that followed her initial interaction
with Davtyan. 

            After Thibes knocked on Davtyan’s
door and walked between her home and that of McIntee (the burglary victim), she
returned to the van containing appellants. 
Thibes then proceeded to the Pope home where she pounded on the door and
rang the doorbell.  She returned to the
van whereupon two men jumped out and walked between Pope’s home and that of
Paczkowski, and then a third man exited the van and approached the Paczkowski
home.  It was ultimately determined McIntee’s
residence was burglarized and there were fresh pry marks on the door of the
Paczkowski home.   

            The group was together when they
were in the van in front of the Davtyan home, when they fled from the police,
and when they were apprehended.  The van
contained burglary tools and each man was in possession of a $100 bill—no doubt
accounting for the three $100 bills missing from the McIntee bedroom.  A rational trier of fact could have concluded
the group had a plan to burglarize an unoccupied home in the area, that Thibes
was taking the first step toward burglarizing the Davtyan residence when she
knocked on the door, and that the men aided, encouraged or facilitated her in
her efforts to complete a burglary of the home consistent with their plan.

 

2.  The Gang Enhancement

 

            “Section
186.22, subdivision (b)(1) imposes additional punishment when a defendant
commits a felony for the benefit of, at the direction of, or in association with a criminal street gang.  To establish that a group is a criminal street
gang within the meaning of the statute, the People must prove:  (1) the group is an ongoing association of
three or more persons sharing a common name, identifying sign, or symbol; (2)
one of the group’s primary activities is the commission of one or more
statutorily enumerated criminal offenses; and (3) the group’s members must
engage in, or have engaged in, a pattern of criminal gang activity.  [Citations.]”  (People v. Duran (2002) 97 Cal.App.4th
1448, 1457.)

            Appellants
join in the arguments of one another and appear to make to attack the
sufficiency of the evidence supporting the gang enhancement on two
grounds.  First, they argue there was
insufficient evidence the crimes were committed “for the benefit of, at the
direction of, or in association with”
the Temple Street gang.  Second, they
maintain there was insufficient evidence that one of the primary activities of
the Temple Street gang was to commit a statutorily identified felony.  Their arguments lack merit.

 

a.  The Benefit/Direction/Association Element

 

            By using
the disjunctive, the Legislature has provided three options of satisfying this
element in that the crimes may be committed: 
(1) for the benefit of a gang; (2) at the direction of a gang; >or (3) in association with a gang.  (§ 186.22, subd. (b)(1).)  Because we find there was sufficient evidence
supporting the third option, the remaining two options are not addressed.

            The
prosecution’s gang expert opined the conduct underlying the offenses was “definitely”
committed in association with a criminal street gang.  Appellants were admitted members of the
Temple Street gang and had multiple tattoos signaling their membership in the
gang.  They committed the crimes
together, fled together, and were apprehended together.  Each of them had a one-third share of the
cash stolen from the McIntee bedroom in his possession.  The fact that each appellant committed the
crime in concert with known fellow gang members amounted to sufficient evidence
the crimes were committed in association with Temple Street gang.  (See People v. Morales (2003) 112
Cal.App.4th 1176, 1198  [“the jury could
reasonably infer the requisite association from the very fact that defendant
committed the charged crimes in association
with fellow gang members”]; see
also People v. Leon (2008) 161 Cal.App.4th 149, 163 [where the
prosecution presented  evidence defendant committed crimes “in association with . . . ,
a fellow gang member,” there was
sufficient evidence defendant “committed
the offenses ‘in association
with any criminal street gang’”].)

 

 

 

b.  Temple Street’s Primary Activities

 

            “[T]he
trier of fact must find that one of the alleged criminal street gang’s primary
activities is the commission of one or more of certain crimes listed in the
gang statute.”  (People v. Sengpadychith
(2001) 26 Cal.4th 316, 322.)  â€œThe phrase
‘primary activities,’ as used in the gang statute, implies that the commission
of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’
or ‘principal’ occupations.  [Citation.]  That definition would necessarily exclude the
occasional commission of those crimes by the group’s members. . . .  [¶]  Sufficient proof of the gang’s primary
activities might consist of evidence that the group’s members consistently
and repeatedly have committed criminal activity listed in the gang statute.”  (Id. at pp. 323-324.)  â€œThe testimony of a gang expert, founded on
his or her conversations with gang members, personal investigation of crimes
committed by gang members, and information obtained from colleagues in his or
her own and other law enforcement agencies, may be sufficient to prove a
gang’s primary activities.  [Citations.]”
 (People v. Duran, supra, 97
Cal.App.4th at p. 1465.)

            Officer
Abner, the prosecution’s gang expert, had been a police officer for over 16
years and spent the past 4 years in the gang enforcement detail.  He had spoken to at least 100 Temple Street
Gang members and participated in “hundreds” of investigations involving Temple
Street gang members.  Officer Abner
contacted Temple Street gang members “almost on a daily basis.”  It was his opinion that the primary
activities of the Temple Street gang were “homicides, robberies, burglaries,
felony vandalisms, weapons possession, [and] carrying concealed weapons.”  He explained Temple Street engaged in these
activities “frequently” and “more often” than other crimes.      

            The crimes
identified by the officer were qualifying felonies for the “primary activities”
element of the gang enhancement.  (§
186.22, subds. (e)(2) [robbery], (e)(3) [homicide]; (e)(11) [burglary]; (e)(20)
[felony vandalism]; (e)(23) [weapons possession]; (e)(32) [carrying a concealed
firearm].)  In light of Officer Abner’s
personal interaction with Temple Street gang members and hundreds of
investigations into crimes involving those gang members, his testimony that
these “frequent” offenses were the primary activities of the gang amounted to
sufficient evidence on this element of the enhancement.  (See People v. Vy (2004) 122
Cal.App.4th 1209, 1219 [testimony that aggravated assaults and attempted murder
“were among . . . the primary activities” of the gang proved primary activity
element]; see also In re Ramon T. (1997) 57 Cal.App.4th 201, 207
[testimony gang “engaged in several of the crimes listed in section 186.22 as a
primary activity” proved primary activity element].)

 

B.  The Instruction on Attempted Burglary

 

            The trial court
has a sua sponte duty to
instruct on the elements of the crime of attempt when charged.  (See
People v. Breverman (1998) 19 Cal.4th 142, 154.)href="#_ftn3" name="_ftnref3" title="">[3]  Here, the trial court did not accurately
instruct the jury on the attempted burglary. 
Specifically, the trial court was obligated to instruct the jury that
attempted first degree burglary required a direct but ineffective step toward
committing the target offense, i.e., first degree burglary and an intention to
commit the target offense.  (People v.
Booker, supra, 51 Cal.4th at p. 175.) 
However, the trial court mistakenly identified the target offense as “attempted”
burglary rather than burglary.   

            The trial
court’s error amounts to a misinstruction on an element of the offense and
requires reversal of the judgments of conviction for attempted burglary unless
it can be determined that the error was harmless beyond a reasonable doubt.  (People
v. Wilkins (2013) 56 Cal.4th 333, 348-350; People v. Hayes (1990) 52 Cal.3d 577, 628.)  Although Thibes is not a party to this
appeal, she was charged with appellants and tried at the same time as
appellants.  The jury was instructed that
there are two possible theories of liability—a person could be guilty if he or
she personally committed the crime or if the person aided and abetted in the
commission of the crime.  The evidence
established it was Thibes who took the direct but ineffective step toward committing
a burglary by proceeding onto Davtyan’s property and knocking on the door.  Indeed, this was the prosecutor’s argument to
the jury.  Thus, appellants’ liability
for attempted burglary was as aiders and abettors of Thibes’s conduct.href="#_ftn4" name="_ftnref4" title="">[4]   

            Other than
the misinstruction, the concept of an attempt to commit an attempted burglary
was absent from this case.  The
prosecutor properly identified the elements of attempted burglary in closing
argument when he stated:  â€œ[H]ere are the
elements now of attempt.  [¶]  Element number 1, defendant took a direct but
ineffective step toward committing the
burglary.  The defendant, in element
number 2, intended to commit the burglary.”  (Italics added.)  Although counsel for Ortiz and Garcia did not
specifically address the elements of attempted burglary, counsel for Montelongo
stated, “A direct step indicates a definite, unambiguous intent to commit >the burglary . . . .”  (Italics added.)     

            In
addition, the verdict forms required a finding that appellants were guilty of “ATTEMPTED
BURGLARY,” as opposed to the somewhat amorphous concept of an attempt to commit
an attempted burglary.  Finally, it bears
repeating, as discussed in Part II(A)(1), the evidence strongly demonstrated
the group was working together to
find a home to burglarize and appellants aided and abetted the first step in
burglarizing the Davtyan home, i.e., to ensure the home was not occupied.  Any error in the misstatement of the trial
court when instructing the jury on attempted burglary was harmless beyond a
reasonable doubt.  (See >People v. Battle (2011) 198 Cal.App.4th
50, 76-78 [court incorrectly instructed the jury defendant could be found
guilty of felony murder based on attempted
lying in wait but the error was harmless because, given the evidence, a
reasonable jury could only conclude defendant was guilty on a theory of lying
in wait].)

 

 

 

C.  Presentence Custody Credit

 

            Respondent
submits appellants’ conduct credits were properly limited to 15 percent of
their actual presentence custody time because they were convicted of burglary
which, according to respondent, qualified as a violent felony (§ 667.5, subd.
(c)(21) and thereby mandated the credit limitation pursuant to section 2933.1,
subdivision (a).  However, burglary
qualifies as a violent felony under section 667.5, subdivision (c)(21) only
if  “it is charged and proved that
another person, other than an accomplice, was present in the residence during
the commission of the burglary.”  This
requisite charge and finding was not made in this case.  Thus, appellants’ presentence conduct credits
were subject to the calculation set forth in former § 4019, subdivisions
(b)(2), (c)(2) and (f), i.e., six days for every block of four days actually
served.  (See People v. Smith (1989) 211 Cal.App.3d 523, 527; see also >People v. Bravo (1990) 219 Cal.App.3d
729, 732-735.)

            The section
4019 formula yields the following results. 
All appellants were arrested on June 1, 2010.  Ortiz was sentenced on October 31, 2012.  He is entitled to 884 days of actual time and
442 days of conduct credit for a total of 1326 days.  Garcia was sentenced on September 26,
2012.  Garcia is entitled to 842 actual
days and 420 days of conduct credit for a total of 1,262 days.  Montelongo was sentenced on September 24,
2012.  He is entitled to 846 actual days
and 422 days of conduct credit for a total of 1,268 days.

 

D.  Garcia’s Restitution Fines

 

            The
abstract of judgment reflects $240 fines imposed on Garcia pursuant to sections
1202.4, subdivision (b)(1)  and
1202.45.  Because the trial court never
orally imposed those fines, we accept respondent’s concession the abstract of
judgment must be corrected to delete them. 
(People v. Farrell (2002) 28
Cal.4th 381, 384, fn. 2 [court’s oral pronouncement of sentence trumps
inconsistency in the minutes]; People v.
Tillman (2000) 22 Cal.4th 300, 303 [the People are prohibited from
challenging the failure to impose a section 1202.4, subdivision (b) fine for
the first time on appeal].)

 

E.  Montelongo’s Abstract of Judgment

 

            The trial
court imposed the middle term for Montelongo’s commission of burglary.  However, the abstract of judgment contains a “U”
in the “Term” category signaling that he received the upper term.  We accept respondent’s concession that the
abstract of judgment should be corrected such that the “U” should be changed to
an “M.”  (See People v. Farrell, supra, 28 Cal.4th at p. 384, fn. 2.)

 

II.  DISPOSITION

 

            The trial
court is ordered to correct the abstracts of judgment in the following
respects: 

            (1)  Adam Ortiz is entitled to custody credit
consisting of 884 days of actual time and 442 days of conduct credit for a
total of 1,326 days;

            (2)  Cesar Garcia is entitled to custody credit
consisting of 842 actual days and 420 conduct credit for a total of 1,262 days;


            (3)  Michael Montelongo is entitled to custody
credit consisting of 846 actual days and 422 days of conduct credit for a total
of 1,268 days;

            (4)  The $240 restitution fines imposed pursuant to
pursuant to Penal Code sections 1202.4, subdivision (b)(1)  and 1202.45 are to be deleted from Cesar
Garcia’s abstract of judgment; and

            (5)  The “U” signifying an upper term sentence for
burglary on Michael Montelongo’s abstract of judgment is to be deleted and an “M”
is to be inserted in its place to represent a middle term sentence that was
doubled pursuant to the Three Strikes law (Pen. Code, § 1170.12, subd. (c)(1)).

 

            After the
abstracts of judgment are corrected, the trial court clerk is ordered to
provide the Department of Corrections and
Rehabilitation with a copy of those corrected documents.  In all other respects the judgments are
affirmed.

                                    NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

                                                KUMAR,
J.href="#_ftn5" name="_ftnref5" title="">*

 

 

We concur:

 

 

            MOSK, ACTING
P. J.

 

 

            KRIEGLER,
J.