Filed 4/24/18 P. v. Palmer CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

DARRELL LAMARR PALMER et al.,

Defendants and Appellants.


E065154

(Super.Ct.No. FVI1501030)

OPINION


APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed in part with directions; reversed in part.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Darrell Lamarr Palmer.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Michael Chiarizio.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendants and appellants, Darrell Lamarr Palmer and Christopher Michael Chiarizio (defendants), appeal from the judgments entered following jury convictions for discharge of a firearm with gross negligence (Pen. Code, § 246.3, subd. (a); count 2) and assault with a firearm (§ 245, subd. (a)(2); count 4). Defendants were also each separately convicted of making criminal threats. (§ 422, subd. (a); count 1 as to Palmer and count 3 as to Chiarizio.) The jury further found true that Chiarizio personally discharged a firearm. (§ 12022.5, subds. (a), (d).)
In a bifurcated trial, the jury found true that Palmer had two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prison prior (§ 667.5). The court sentenced Palmer to 25 years to life for his criminal threats conviction (count 1), plus one year for his prison prior. Sentencing was stayed on counts 2 and 4. As to Chiarizio, the court sentenced him to 13 years, consisting of three years for assault with a firearm (count 4) and a consecutive 10 years for personal use of a firearm, with a concurrent term of two years for discharge of a firearm with gross negligence, and two years for the criminal threats conviction.
Palmer contends there was insufficient evidence to support his convictions for negligent discharge of a firearm and assault with a firearm. He also argues the trial court erred in not instructing on the prosecution’s failure to preserve evidence, and Chiarizio joins in this contention. Palmer further argues his Georgia burglary conviction does not qualify as a strike under California law. In addition, the People argue the trial court erred in staying Palmer’s sentences for negligent discharge of a firearm and assault with a firearm (counts 2 and 4), without imposing a sentence on either conviction.
Chiarizio contends the trial court erred in barring him from demonstrating his stutter for the jury, and the prosecutor improperly argued the severity of Chiarizio’s stuttering was unknown. Palmer joins in these arguments. Chiarizio further argues his sentence for making criminal threats should be stayed. In addition, in supplemental briefing, Chiarizio asserts that this court should remand this matter for resentencing on his firearm enhancement (§ 12022.5, subds. (a), (d)) under recently enacted Senate Bill No. 620, which amended section 12022.5, subdivision (c).
We conclude the trial court erred as to Chiarizio’s sentence on his criminal threats conviction (count 3), as conceded by the People, and as to Palmer’s stayed sentence on counts 2 and 4. Accordingly, Chiarizio’s criminal threats sentence (count 3) is ordered stayed. As to Palmer’s sentence on counts 2 and 4, we impose and stay indeterminate terms of 25 years to life on both counts. Finally, as to Chiarizio’s firearm enhancement, the sentence on the enhancement is reversed and remanded to allow the trial court to exercise its discretion in determining whether to strike Chiarizio’s section 12022.5 enhancement pursuant to sections 1385 and 12022.5, subdivision (c). The judgment is modified as stated above as to the sentencing errors; reversed and remanded as to Chiarizio’s firearm enhancement; and affirmed in all other respects.
II
FACTS
One morning in April 2015, B.S. and D.S. sat in B.S.’s car, which was parked in B.S.’s driveway. B.S.’s German Shepherd dog stood in the driveway, next to B.S.’s car. Palmer, who was in his open garage across the street began ranting and raving about the dog being loose. When D.S. got out of the car, Palmer approached him and threatened to shoot D.S. and the dog. D.S. testified Palmer revised his threats and told him, “I’m going to call my homeboy to come shoot you and the dog.” D.S. also testified that Palmer told him, “I’m tired of you and the God damn dog.”
B.S. testified Palmer yelled, “[H]ow many times do I have to tell you about having the mother fucking dog out,” and after telling D.S. he was going to shoot him, told D.S., “[N]o, I’m going to call my buddy and have him to come over and shoot you and the dog.” Palmer then returned to his garage. D.S. saw Palmer pull out his cell phone but did not hear what he said on the phone.
Within minutes, Chiarizio drove up in a gray car, briefly stopping at Palmer’s driveway. Palmer, who was in his garage, laughed loudly. Then, Chiarizio turned his car around and stopped just past B.S.’s driveway. Contrary to B.S.’s testimony, D.S. testified Chiarizio did not stop at Palmer’s house. Upon stopping at B.S.’s house, Chiarizio pointed his gun at D.S. and told him that next time Chiarizio’s “homeboy” called, he would come over and shoot D.S. and the dog. Chiarizio called B.S. several disparaging names. D.S. was standing in front of B.S.’s car at the time. Fearing for his life when Chiarizio pointed his gun directly at D.S., D.S. tried to duck and hide behind B.S.’s car. As Chiarizio drove away, he stuck his left hand out of the window and fired his gun into the air twice.
Deputy Brosowske from the San Bernardino County Sheriff’s Department, responded to B.S.’s 911 call. After interviewing B.S. and D.S., Deputy Brosowske contacted Palmer at his house. While there, Palmer’s cell phone rang. Deputy Brosowke noticed the name “Brisk” pop up on Palmer’s cell phone. Deputy Brosowke obtained a search warrant for the cell phone, had the cell phone analyzed, and arrested Palmer.
At trial, B.S. testified she heard Palmer tell someone on the cell phone to come shoot someone. B.S. initially testified she did not mention this to Deputy Brosowke but later testified she had told Deputy Brosowke about Palmer’s call. B.S. admitted she had been convicted in 2011 for giving an officer false information and a 2015 conviction for vandalism.
Palmer’s fiancée testified she heard Palmer and D.S. arguing outside Palmer’s house. Palmer asked D.S. why the dog was out because Palmer wanted to take his son outside to play. D.S. responded, “[M]an, it’s just a dog.” L.K. testified she lived with her mother next door to B.S. L.K. heard yelling while she was standing in front of the garage. She saw B.S. and D.S. yelling at someone in a gray car and then heard a firecracker sound.
J.H., who lived with Chiarizio, testified that on the day of the charged offenses, J.H. told police officers he did not know who Brisk was but knew Chiarizio. J.H. said Chiarizio was driving a black Honda, not the inoperable gray Acura, which was in J.H.’s backyard. J.H. testified Chiarizio spoke with a stutter. Defense investigator Stremel also testified Chiarizio had a severe stutter.
One of Palmer and B.S.’s neighbors, L.S., testified that on the day of the charged offenses she heard Palmer and D.S. discuss a loose dog. She was glad the dog was being discussed because everyone in the neighborhood had problems with the dog running loose. D.S. spoke aggressively to Palmer, taunting him because he was afraid of the dog. About five minutes later, L.S. saw a gray car drive by and heard two shots when the car stopped at a stop sign. The car then drove away.
III
SUFFICIENCY OF THE EVIDENCE
Chiarizio was found guilty of negligent discharge of a firearm and assault with a firearm, as the direct perpetrator. Palmer was found guilty as an aider and abettor. Palmer contends there was insufficient evidence to support his convictions for negligent discharge of a firearm and assault with a firearm, as an aider and abettor. We disagree.
A. Standard of Review
“[I]n reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is whether, on review of the entire record in the light most favorable to the judgment, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.” (People v. Young (2005) 34 Cal.4th 1149, 1180.) “The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence.” (Id. at p. 1175.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (Id. at p. 1181.)
B. Applicable Law–Accomplice Liability
“‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’” (People v. Hill (1998) 17 Cal.4th 800, 851, quoting People v. Cooper (1991) 53 Cal.3d 1158, 1164.) “[T]he aider and abettor’s intent may be made by way of an inference from her volitional acts with knowledge of their probable consequences. [¶] Thus, . . . the weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)
There are two types of aider and abettor liability for criminal conduct. “First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
C. Discussion
Here, there was substantial evidence Palmer aided and abetted Chiarizio in the commission of the crimes of negligent discharge of a firearm and assault with a firearm. Such evidence included testimony that Palmer was outraged at B.S. and D.S. because B.S.’s dog was loose in B.S.’s driveway; Palmer yelled at D.S. that he was going to shoot D.S. and the dog because it was loose; Palmer then changed his mind and said he was going to have his “buddy” or “homeboy” shoot D.S. and the dog; Palmer made a call; within minutes, Chiarizio showed up, momentarily stopped by Palmer’s garage, and then drove up near D.S., pulled out a gun, threatened to shoot D.S. and the dog, and fired his gun as he drove away.
This evidence provided more than ample evidence that Chiarizio committed the crimes of negligent discharge of a firearm and assault with a firearm. The evidence also was sufficient to establish the elements of aiding and abetting. First, Palmer had knowledge of Chiarizio’s intent to shoot or threaten to shoot D.S. and the dog, because Palmer asked Chiarizio to do so. Second, there was evidence Palmer requested Chiarizio to come over and shoot or threaten to shoot D.S. and the dog. This evidence satisfies the element of Palmer intending to encourage Chiarizio to commit the charged crimes or crimes that led to the charged crimes, which were a natural and probable consequence of the crime aided and abetted. Third, Palmer encouraged such crimes by promoting, encouraging, and instigating commission of the crime of Chiarizio shooting D.S. and the dog. The firearm discharge and assault crimes were a natural and probable consequence of Palmer inciting Chiarizio to shoot or threaten to shoot D.S. and B.S.’s dog. (People v. Hill, supra, 17 Cal.4th at p. 851.) There was thus sufficient evidence to support Palmer’s convictions.
IV
INSTRUCTION ON MISSING EVIDENCE
Defendants contend the trial court violated their constitutional rights to due process and a fair trial by not instructing the jury on the People’s failure to preserve and present cell phone evidence, photogrpahic identification evidence, and car evidence, which may have undercut the People’s case. Defendants argue this evidence was highly significant evidence that could have exonerated them.
A. Factual Background
At trial, Deputy Alatorre testified that, on the day of the charged incident, he showed D.S. and B.S. separately a photogrpahic lineup, during which D.S. and B.S. both misidentified Chiarizio. Deputy Alatorre discarded the results of the photogrpahic lineup because D.S. and B.S. did not correctly identify Chiarizio. Later that day, Deputy Brosowske showed D.S. and B.S. the same photographs again. This time, D.S. and B.S. both correctly identified Chiarizio as the individual who threatened D.S. with a gun.
A few hours after the charged incident Deputy Brosowske found a gray Acura in Chiarizio’s backyard. Deputy Brosowke photographed the car and showed D.S. and B.S. the photograph. They identified the car in the photograph as the car driven by the shooter, Chiarizio. Deputy Brosowke did not impound the car or determine whether it was operable. He also did not search inside for shell casings or gunshot residue. When Deputy Brosowke later returned to arrest Chiarizio, the car had been repainted and had undergone bodywork.
When Deputy Brosowke interviewed Palmer on April 27, 2015, Palmer’s cell phone rang. The name “Brisk” showed up on the screen during four or five attempted calls. Deputy Brosowke requested a search warrant for the cell phone and sent the cell phone to the sheriff’s high tech crime lab for analysis. Deputy Brosowke testified that he believed the cell phone was still with the high tech department.
B. Procedural Background
Before trial, defendants moved to preclude Deputy Brosowke from testifying that he looked at Palmer’s cell phone and saw calls from Palmer to Chiarizio, on the ground the prosecution did not provide the phone logs showing calls made to and from Palmer. Palmer’s attorney, Joshua Castro, complained that Deputy Brosowke took Palmer’s cell phone and logged it into evidence but had not made the cell phone available to him for use at trial to show the call log Deputy Brosowke saw on Palmer’s cell phone. The trial court denied the motion on the ground the request was untimely and defendants could cross-examine Deputy Brosowke as to what he saw on Palmer’s cell phone. The court also ordered the prosecution to contact the investigating officer and ask him to provide the court with a copy of the phone log.
Near the end of the prosecution’s case, Deputy Brosowke told the court he called the sheriff’s department’s evidence clerk and was waiting for a return call regarding whether he could get the phone evidence. In addition, he had a blue-ray report from the cell phones but had not been able to open them. The prosecutor stated that the initial report stated that the crime lab could not open the cell phone. Deputy Brosowke had told the prosecutor he wrote down Brisk’s number and later compared it with Chiarizio’s number. The court suggested calling the number to see if Chiarizio’s cell phone rang. The prosecutor indicated she did not have Chiarizio’s cell phone. Deputy Brosowke said he had made a call to the sergeant and left a message. That was all he could do at that time.
Chiarizio’s attorney explained he needed Palmer’s cell phone. Phone evidence showing there was no call from Palmer to Chiarizio before the 911 call would be extremely exculpatory. The court agreed evidence establishing whether there was a cell phone call or calls between Palmer and Chiarizio contemporaneous with the charged crimes was very important. The court ordered the prosecutor to get someone to get the phone evidence and, meanwhile, the trial would go forward. The prosecution did not produce the phone evidence during the remainder of the trial, and no further mention was made of the matter. The parties also did not request an adverse inference instruction (CALCRIM No. 306) regarding the failure to preserve and produce the photographic lineup evidence, car evidence, and phone evidence.
C. Governing law
Law enforcement agencies have a duty under the due process clause of the Fourteenth Amendment to preserve evidence “that might be expected to play a significant role in the suspect’s defense.” (California v. Trombetta (1984) 467 U.S. 479, 488; People v. Catlin (2001) 26 Cal.4th 81, 159-160.) “‘To fall within the scope of this duty, the evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”’” (Catlin, supra, at pp. 159-160.) When the evidence is only potentially exculpatory, that is, of the type of which “no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant” (Arizona v. Youngblood (1988) 488 U.S. 51, 57), the destruction or spoliation of such evidence will amount to a due process violation if the defendant can show bad faith on the part of law enforcement (ibid.; Catlin, supra, at p. 160; People v. Carrasco (2014) 59 Cal.4th 924, 961). The presence or absence of bad faith necessarily turns on law enforcement’s knowledge of the potentially exculpatory value of the evidence at the time it was lost or destroyed. (Youngblood, supra, at p. 57; People v. DePriest (2007) 42 Cal.4th 1, 42.)
The trial court has no sua sponte duty to give an adverse inference instruction absent a finding of bad faith destruction of evidence. (See People v. Medina (1990) 51 Cal.3d 870, 894 [absent a finding of bad faith destruction of evidence, “the trial court did not err in failing to instruct sua sponte that any conflicting inferences should be drawn in defendant’s favor, or that the People’s evidence should be viewed with distrust.”]; see ibid. [“neither Trombetta nor Youngblood held that instructions such as those proposed by defendant are required sua sponte, and we are reluctant to impose such an instructional sanction for mere negligence in failing to preserve evidence whose exculpatory value was unapparent to the officers when their omission occurred.”].) Absent bad faith, a defendant is not entitled to any sanction, including an adverse inference jury instruction. (People v. Cooper, supra, 53 Cal.3d at p. 811; People v. Zapien (1993) 4 Cal.4th 929, 965-966 [trial court’s refusal to adopt adverse inference from law enforcement’s negligent destruction of evidence was well within its discretion; absent bad faith, no adverse inference sanction warranted].)
D. Discussion
Defendants had every opportunity to argue to the jury the prejudice that resulted from the failure to preserve or produce evidence regarding the initial photographic lineup, the gray car, and cell phone call logs. Nothing more in this case was required to ensure a fair trial. (People v. Cooper, supra, 53 Cal.3d at pp. 811-812; People v. Zapien, supra, 4 Cal.4th at p. 965.) The government provided testimony and photographs of the vehicle, testimony regarding calls received and made on Palmer’s cell phone, and testimony regarding Deputy Alatorre conducting a preliminary photographic lineup and discarding the results. Defense counsel was free to cross-examine witnesses and explore the facts regarding the cell phone, car, and lineup evidence and the prosecution’s failure to present the evidence at trial. In addition, defendants had access to the phone logs for their own cell phones.
Notwithstanding the possible benefits of analysis of Palmer’s cell phone and the gray Acura, and retention of the initial photographic lineup results, case law holds that “[i]f . . . ‘no more can be said [of the evidence] than that it could have been subjected to tests, the results of which might have exonerated the defendant,’” then the failure to preserve potentially useful evidence does not constitute a denial of due process of law unless “‘defendant can show bad faith on the part of the police . . . .’” (People v. Duff (2014) 58 Cal.4th 527, 549; accord, People v. Carrasco, supra, 59 Cal.4th at p. 962.) Defendants have not demonstrated bad faith or that the evidence both possessed “‘an exculpatory value that was apparent before the evidence was destroyed, and [was] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ [Citation.] Generally, due process does not require the police to collect particular items of evidence. [Citation.] ‘The police cannot be expected to “gather up everything which might eventually prove useful to the defense.”’ [Citation.] A trial court’s ruling on a Trombetta motion [for sanctions] is upheld on appeal if a reviewing court finds substantial evidence supporting the ruling.” (People v. Montes (2014) 58 Cal.4th 809, 837.)
Although the cell phone evidence was material, the exculpatory value was not apparent, the evidence was not destroyed, and, if the cell phone log evidence was exculpatory, defendants likely had the ability to obtain and produce the evidence from their own cell phones. There was also no showing of bad faith in not producing the evidence at trial. There was only a showing of lack of diligence in analyzing and producing the evidence. After the trial court told the prosecution to make an effort expeditiously to produce the evidence, defendants forfeited the matter by not raising it again during the trial.
As to the gray car evidence, defendants did not demonstrate the evidence constituted material exculpatory evidence or that the failure to preserve it and produce it was in bad faith. The absence of gunshot residue inside the car would not have established defendants’ innocence. Furthermore, although the car was painted and work was done on the car after the charged crimes, a photograph of the car was taken right after the crimes were committed. The officer reasonably concluded that after the car was photographed and B.S. identified it, that impounding the car was unnecessary. The exterior and interior of the car did not have any then-apparent exculpatory value. Witness testimony and cross-examination as to whether Chiarizio was driving the car during the charged crimes was available.
With regards to the discarded photographic lineup evidence, although the evidence had exculpatory value, and even if Deputy Alatorre recklessly discarded the evidence, there was comparable evidence available establishing that defendant failed to identify Chiarizio during the first lineup. Deputy Alatorre’s testimony stating that both D.S. and B.S. identified the wrong person during the first photographic lineup was sufficient.
Because defendants have not demonstrated bad faith or that the evidence in question was exculpatory, the trial court was not required to give an adverse inference instruction sua sponte regarding the initial photographic lineup, the gray car, and cell phone call logs. (People v. Medina, supra, 51 Cal.3d at p. 894; People v. San Nicolas (2004) 34 Cal.4th 614, 669.)
Furthermore, defendants forfeited their instructional error challenge by not objecting to the trial court not giving an adverse inference instruction. (People v. San Nicolas, supra, 34 Cal.4th at pp. 665, 669.) In addition, defendants have not demonstrated that the absence of the adverse inference instruction constituted prejudicial error under any of the applicable standards for review. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)
V
PALMER’S OUT-OF-STATE STRIKE
Palmer contends his 1994 Georgia conviction for residential burglary does not qualify as a California strike because, under the Georgia burglary statute, the burglary offense could be committed without intent upon entry to commit a felony. Also, the statute did not require entry into a structure inhabited and designed for habitation. Palmer argues that, therefore, defendant’s Georgia conviction was, at most, a second degree burglary. We disagree.
A. Factual and Procedural Background
During Palmer’s trial, the information was amended by interlineation to correct the second strike allegation to state that Palmer was convicted in 1994, in Bibb County, Georgia, of residential burglary, in violation of Official Georgia Code section (OCGA) 16-7-1. During the bifurcated jury trial on Palmer’s prior convictions, San Bernardino County Supervising Deputy District Attorney Michael Dowd provided testimony and records certifying Palmer’s prior convictions, including Palmer’s 1994 Georgia burglary conviction. Deputy District Attorney Michael Dowd presented a certified packet, which included a copy of the signed 1994 Georgia burglary indictment; a guilty plea of the Georgia burglary charge, signed on November 14, 1994, by Palmer, his attorney, and the prosecutor; and a later admission by Palmer to violating his probation.
While the jury was deliberating, the prosecutor requested the court to make a finding that Palmer’s Georgia burglary qualified as a California first degree burglary conviction strike. The prosecutor cited Georgia burglary statute OCGA 16-7-1, the statute Palmer pled guilty to violating. The prosecutor also cited People v. Crane (2006) 142 Cal.App.4th 425, for the proposition that, if the out-of-state criminal statute does not include each of the elements required for the California offense, the trial court may consider evidence found in the record of the foreign conviction to determine whether the defendant’s conduct would have constituted a qualifying strike if committed in California.
The prosecutor read to the trial court the Georgia burglary indictment, which stated: “For that the said accused on the 9th day of June in the year 1994, in the State and County aforesaid, did then and there unlawfully and without authority enter[ed] into the dwelling residence of [the victim] located at [an apartment address in] Bibb County, Georgia, with intent to commit a theft therein, contrary to the laws of said State . . . .” (Italics added.) Included with the indictment was Palmer’s signed guilty plea to the charged burglary offense.
Palmer’s attorney argued that the Georgia burglary statute differed from California’s first degree burglary statute because the Georgia statute included the act of remaining inside a dwelling with the intent to commit theft or a felony. California’s first degree burglary statute requires entering a dwelling with criminal intent, not merely forming the intent while remaining in a dwelling. The trial court rejected Palmer’s argument and ruled that the Georgia burglary statute, OCGA 16-7-1, was the same as California’s statute for purposes of finding that Palmer’s burglary conviction qualified as a strike in California.
B. Discussion
Palmer argues his Georgia burglary conviction does not qualify as a strike under California law because: (1) Georgia’s first degree burglary statute does not contain all of the elements of first degree burglary required under California law; and (2) the record of conviction fails to establish that Palmer’s Georgia burglary offense involved conduct which satisfies all the elements of first degree burglary under California law.
In California, any person who enters a structure, such as a house, inhabited and designed for habitation, with the intent to commit a felony or theft is guilty of burglary. (§ 459.) Under California law, “[e]very burglary of an inhabited dwelling house . . . is burglary of the first degree.” (§ 460, subd. (a).) “‘[I]nhabited’ means currently being used for dwelling purposes, whether occupied or not.” (§ 459.)
The Georgia criminal statute applicable to Palmer’s 1994 burglary offense states ,in relevant part, that “[a] person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another . . . .” (OCGA 16-7-1(b).) This burglary statute includes burglaries committed in ways other than entering an occupied dwelling with the intent to commit a theft or felony. The perpetrator may form the intent after entry, while remaining in the dwelling. In addition, under the Georgia law in 1994, a burglary under OCGA 16-7-1 broadly encompassed a dwelling even if it was not currently being used as an inhabited dwelling. For instance, unlike under California law, in Georgia, a burglary could be committed within a vacant dwelling undergoing remodeling.
Even though the Georgia burglary statute encompasses conduct that would not qualify as first degree burglary under California law, the record of conviction in Palmer’s case establishes that Palmer pled guilty to, and was convicted of, criminal conduct that would constitute first degree burglary under California law and therefore qualify as a strike under section 1170.12.
As explained in People v. Crane, supra, 142 Cal.App.4th at page 433, “[i]n the criminal context, a defendant whose prior conviction was suffered in another jurisdiction is subject to the same punishment as a person previously convicted of an offense involving the same conduct in California. [Citation.] Enhancement is only permissible when the conduct underlying the foreign conviction would meet all of the elements of the California offense. [Citation.] In making that determination, the trier of fact may look to the entire record of the conviction, but no further. [Citation.] . . . [¶] If the statutory definition of the crime in the foreign jurisdiction contains all of the necessary elements to meet the California definition, the inquiry ends. If the statutory definition of the crime in the foreign jurisdiction does not contain the necessary elements of the California offense, the court may consider evidence found within the record of the foreign conviction in determining whether the underlying conduct would have constituted a qualifying offense if committed in California, so long as the use of such evidence is not precluded by rules of evidence or other statutory limitation. [Citation.] Where the record presented at trial does not competently disclose the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law.” (Italics added.)
During the pendency of this appeal, the California Supreme Court decided People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), which discussed the role of judicial factfinding in determining whether the defendant’s prior assault conviction qualified as a serious felony under the “Three Strikes” law. The defendant argued the trial court erred in ruling that her prior conviction for assault with a deadly weapon or with force likely to cause great bodily injury (§ 245, subd. (a)) qualified as a serious felony under the Three Strikes law. The definition of the statutory crime (§ 245, subd. (a)) sweeps more broadly than the definition of “‘serious felony’” under the Three Strikes law, section 667, subdivision (a). A serious felony assault under the Three Strikes law is limited to an assault committed with a deadly weapon, but not otherwise. (Gallardo, supra, at p. 123.) The trial court in Gallardo relied on the preliminary hearing transcript in determining that Gallardo had committed an assault with a deadly weapon, which qualified as a serious felony under the Three Strikes law.
Citing Descamps v. United States (2013) 570 U.S. 254, and Mathis v. United States (2016) 579 U.S. __ [136 S.Ct. 2243], the Gallardo court reversed the trial court ruling that Gallardo’s prior assault conviction qualified as a serious felony strike. The Gallardo court reasoned that “[t]he cases make clear that when the criminal law imposes added punishment based on findings about the facts underlying a defendant’s prior conviction, ‘[t]he Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt.’ (Descamps v. United States [, supra, 570 U.S. at p. 269].) While a sentencing court is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, the court may not rely on its own independent review of record evidence to determine what conduct ‘realistically’ led to the defendant’s conviction.” (Gallardo, supra, 4 Cal.5th at p. 124.)
The Gallardo court therefore held that “the trial court violated defendant’s Sixth Amendment right to a jury trial when it found a disputed fact about the conduct underlying defendant’s assault conviction that had not been established by virtue of the conviction itself.” (Gallardo, supra, 4 Cal.5th at pp. 124-125.) The Gallardo court further concluded that the trial court’s factfinding based on the preliminary hearing transcript in the prior assault case was not constitutionally permissible. (Id. at p. 125.) Gallardo is distinguishable because, here, the trial court relied on an indictment, rather than a preliminary hearing transcript, to determine the facts of defendant’s Georgia conviction. An indictment may be considered part of the record of conviction, whereas a preliminary hearing transcript is not part of the record of conviction. (Id. at pp. 136-137; People v. Crane, supra, Cal.App.4th. at p. 433; Descamps v. United States, supra, 570 U.S. at pp. 257-258.)
While a trial court may not make factual findings about the conduct underlying a prior conviction, the court may identify those facts a jury necessarily found or a defendant admitted in a guilty plea. In doing so, the trial court may review an indictment, which establishes the precise statutory basis for a prior conviction. An indictment is considered to be reliable for this purpose because it identifies what facts a jury necessarily found in the prior proceeding or a defendant admitted in a guilty plea. (Gallardo, supra, 4 Cal.5th at p. 137.) On the other hand, a preliminary hearing transcript “can reveal no such thing.” (Ibid.) As the Gallardo court concluded, “[o]ur precedent instructs that determinations about the nature of prior convictions are to be made by the court, rather than a jury, based on the record of conviction.” (Id. at p. 138.)
Here, as required for a conviction under California’s first degree burglary statute (§ 459), the record of conviction establishes that Palmer’s burglary conviction in Georgia was based on his entry into an apartment that was used for dwelling purposes. (§ 459.) Palmer pled guilty to the indictment allegations that he “did then and there unlawfully and without authority enter[ed] into the dwelling residence of [the victim] located at [an apartment address in] Bibb County, Georgia, with intent to commit a theft.” The evidence in the record of conviction therefore was sufficient to establish that Palmer’s Georgia burglary conviction qualified as a serious felony prior (first degree burglary) under California law.
VI
STAYING PALMER’S SENTENCES FOR FIREARM DISCHARGE
AND ASSAULT WITH A FIREARM
In a bifurcated trial, the jury found true allegations that Palmer had two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prison prior (§ 667.5). The court sentenced Palmer to 25 years to life for his criminal threats conviction (count 1), plus one year for his prison prior. Sentencing was stayed on counts 2 and 4. Although not raised or addressed by Palmer, the People assert that the trial court erred in staying under section 654 pronouncement of judgment on Palmer’s convictions for negligent discharge of a firearm and assault with a firearm (counts 2 and 4), without sentencing Palmer on either conviction. Citing People v. Alford (2010) 180 Cal.App.4th 1463, 1466, the People contend the court should have imposed sentences on counts 2 and 4 and then stayed execution of the sentences under section 654. (Alford, supra, at p. 1466.) We agree the trial court imposed an unauthorized sentence in this regard, which this court must correct. (Id. at p. 1467.)
Section 654 “precludes multiple punishment when a criminal act or omission violates multiple penal provisions. . . . [W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence.” (People v. Alford, supra, 180 Cal.App.4th at p. 1466; see id. at pp. 1469-1473.) The remedy in this case for the sentencing error on counts 2 and 4 is to either remand to the trial court for resentencing or for this court to exercise our authority to modify the judgment. (§ 1260; People v. Alford, supra, at p. 1473.) In exercising our authority to modify the judgment, we impose and stay indeterminate terms of 25 years to life on both counts 2 and 4.
VII
ADMISSIBILITY OF CHIARIZIO’S STUTTER
Chiarizio contends the trial court abused its discretion in not allowing him to demonstrate to the jury the severity of his stuttering. Chiarizio argues such evidence was relevant to the issue of the identity of the perpetrator of the crimes charged against Chiarizio. Chiarizio asserts the stutter evidence would have shown that he was not the perpetrator of the charged offenses, because neither B.S. nor D.S. mentioned to the police that the perpetrator had a stutter or that it was difficult to understand the perpetrator’s speech.
A. Factual and Procedural Background
During the trial, J.H., who had known Chiarizio for 11 years, testified that ever since J.H. had known Chiarizio, Chiarizio had stuttered. The day of the charged crimes, the police brought Chiarizio to J.H.’s house and asked J.H. to talk to Chiarizio in the patrol car, because the police officer could not understand Chiarizio. Normally J.H. could understand Chiarizio but he was unable to understand Chiarizio in the patrol car because of his stuttering.
The court took a recess and out of the presence of the jury, Chiarizio’s attorney requested to allow Chiarizio to demonstrate to the jury his stutter by speaking the words Chiarizio used to threaten D.S. The court indicated it would not allow the evidence because it might not be accurate and because the evidence was demonstrative evidence, Chiarizio would not be subject to cross-examination. The court, however, permitted defense counsel to submit briefing on the issue, and then proceeded with the trial. The court later stated that it likely would rule that the demonstrative evidence was inadmissible because J.H. testified Chiarizio’s stutter varied, depending on whether he was mad or had taken his medication. There was no way of knowing whether these circumstances would be the same in court as when Chiarizio threatened D.S. The court also noted it had no way of knowing if Chiarizio could intentionally exaggerate his stuttering defect in court. The court added that, even if it did not allow Chiarizio to provide demonstrative evidence of his stuttering, he had the right to testify on his own behalf. In doing so, he would be subject to cross-examination.
J.H. then resumed testifying and stated he had never heard Chiarizio speak a 14-word sentence without stuttering. Chiarizio ordinarily stuttered but not always to the same degree. When he got angry he was incomprehensible. When Chiarizio was in the patrol car, J.H. could not understand him. Chiarizio took medication, which relaxed him, and when he was relaxed, he did not stutter as much.
After the trial court reviewed the briefing on the admissibility of Chiarizio’s demonstrative stutter evidence, Chiarizio’s attorney requested, alternatively, that his investigator be permitted to testify that while he spoke to Chiarizio for multiple hours, Chiarizio stuttered. The court agreed that such testimony by the investigator would be permissible. The court acknowledged that Chiarizio’s stuttering was relevant. Even if the demonstrative evidence was barred, defense counsel had an opportunity to ask B.S. and D.S. if Chiarizio’s speech was clear. Chiarizio’s attorney acknowledged it was unknown whether Chiarizio had taken his medication on the day of the charged crimes. The court concluded the demonstrative evidence was inadmissible on the grounds there was insufficient foundation that it was relevant, because of unknown variables, such as the effect of Chiarizio’s medication and his mental state on the severity of his stutter.
B. Discussion
The trial court did not abuse its discretion in barring the demonstrative evidence of Chiarizio reciting to the jury the threats he allegedly made to D.S. Under well-established principles, determination of the admissibility of this demonstrative evidence has two components: “‘“(1) whether the challenged evidence satisfied the ‘relevancy’ requirement set forth in Evidence Code section 210, and (2) if the evidence was relevant, whether the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the [evidence] was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.”’” (People v. Carter (2005) 36 Cal.4th 1114, 1166, quoting People v. Heard (2003) 31 Cal.4th 946, 972.)
Only relevant evidence is admissible (Evid. Code, § 350; People v. Carter, supra, 36 Cal.4th at p. 1166), and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute (Evid. Code, § 351; see Cal. Const., art. I, § 28, subd. (d)). Under Evidence Code section 210, relevant evidence is defined as evidence “‘“‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ . . . ‘The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence.’”’” (Carter, supra, at pp. 1166-1167.) “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
A defendant may present to the jury a distinctive characteristic, without taking the witness stand, upon establishing relevancy and laying a proper foundation for the evidence. (People v. Perez (1989) 216 Cal.App.3d 1346, 1351-1352.) The “desire of the defendant to show a scar, tattoo, gold tooth or other relevant physical characteristic without accompanying testimony (or concomitant cross examination) is merely the other side of the coin to the prosecutor’s right in both federal and California state courts to compel relevant exhibition of such a physical characteristic without impinging a defendant’s privilege against self-incrimination.” (Id. at p. 1352.) But unlike the physical characteristics mentioned in Perez, such as a scar, tattoo, or gold tooth, Chiarizio’s stuttering was not a consistent, unchanging characteristic. Defendant’s stuttering was known to change based on a variety of factors. It was uncertain as to when or how it would change.
In order to lay a proper foundation for Chiarizio’s speech evidence, he was required to show that his speech in front of the jury was “‘conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence.’” (People v. Bradford (1997) 15 Cal.4th 1229, 1326, quoting People v. Turner (1994) 8 Cal.4th 137, 198.) Although evidence Chiarizio suffered from stuttering was relevant, allowing him to demonstrate his stutter to the jury constituted inadmissible demonstrative evidence, because of insufficient foundation establishing that his speech when he made the alleged threats would be the same as when he recited the threats in court. The trial court reasonably concluded there were unknown variables, which could result in Chiarizio’s speech in court significantly differing from his speech during the charged crimes. There was simply no way of ensuring that Chiarizio would provide comparable speech in court.
Such unknown variables included whether Chiarizio was on his medication at the time of the charged crimes; the emotional and mental state of Chiarizio at the time of the crimes and in court, and impact of such state on Chiarizio’s speech; and whether Chiarizio was capable of voluntarily exaggerating his stutter in court, so as to support his defense that his stutter was so severe he could not have uttered the alleged threats, and witnesses who heard him would have reported his stutter, had he actually been the perpetrator. The demonstrative evidence thus could result in misleading the jury and create confusion. Under such circumstances, the trial court did not abuse its discretion under Evidence Code section 352 in finding that the probative value of the evidence was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. (People v. Carter, supra, 36 Cal.4th at p. 1166.)
VIII
PROSECUTORIAL MISCONDUCT
Chiarizio contends the prosecutor committed misconduct or “error” when he told the jury during closing rebuttal that “we don’t know how bad Mr. Chiarizio’s stutter really is,” and a little later reiterated this. Chiarizio argues that these comments misled the jury and took unfair advantage of the trial court’s previous ruling excluding defense proffered demonstrative evidence, which would have permitted Chiarizio to demonstrate the severity of his stutter by repeating for the jury his alleged charged threats. Chiarizio asserts such prosecutorial error violated his rights to due process and fair trial under the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution and corollary provisions of the California Constitution. Chiarizio further argues the prosecutorial error was compounded by the trial court denying his request to reopen the evidence and allow Chiarizio to present the demonstrative stutter evidence previously prohibited.
A. Applicable Law
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, . . . when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Morales (2001) 25 Cal.4th 34, 44.)
Generally, in order to raise any alleged error on appeal, the error must have first been brought to the attention of the trial court. Normally, a defendant forfeits any complaint of prosecutorial misconduct on appeal unless he or she timely objects to the alleged misconduct at the time it occurs and also requests that the jury be admonished to reject the alleged impropriety. (People v. Ervine (2009) 47 Cal.4th 745, 806; In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Chiarizio argues for the first time on appeal that the prosecutor improperly argued that the severity of Chiarizio’s stutter was unknown. Because Chiarizio did not timely raise the objection during the trial or request an admonition, he forfeited the objection. (People v. Ervine, supra, 47 Cal.4th at p. 806; In re S.B., supra, 32 Cal.4th at p. 1293; People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Chiarizio alternatively argues that, if he forfeited his prosecutorial error objection, his trial attorney’s failure to raise the objection and request an admonition constitutes ineffective assistance of counsel. “To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant.” (In re Resendiz (2001) 25 Cal.4th 230, 239.)
The appellate court must presume counsel’s conduct fell within the wide range of reasonable professional assistance and accord great deference to counsel’s tactical decisions. (People v. Lewis (2001) 25 Cal.4th 610, 674.) “It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” (People v. Sassounian (1986) 182 Cal.App.3d 361, 396.) However, a prosecutor’s argument cannot mislead jurors and a prosecutor may commit misconduct by arguing about the absence of evidence that was excluded at his or her request. (People v. Daggett (1990) 225 Cal.App.3d 751, 758.)
B. Discussion
Here, counsel’s conduct fell within the wide range of reasonable professional assistance because there was no valid reason to object to the prosecutor’s statements that it was unknown how bad Chiarizio’s stutter was. The prosecutor’s comments in this regard and his other comments regarding Chiarizio’s stuttering were within the realm of reasonable, appropriate commentary on the state of the evidence. There was no reason for Chiarizio’s trial attorney to object. Doing so would have raised frivolous or meritless objections. Therefore, there was no ineffective assistance of counsel. (People v. Marlow (2004) 34 Cal.4th 131, 144.)
Chiarizio’s contention that the trial court erred in denying his request to reopen the evidence and allow the demonstrative stutter evidence previously requested and denied also lacks merit because, even if the court had permitted the demonstrative evidence proffered by Chiarizio, the severity of Chiarizio’s stuttering at the time of the charged threats would have remained uncertain, because of variables affecting his speech (medication, mood and possible intentional exaggeration).
IX
CHIARIZIO’S SENTENCE ON CRIMINAL THREATS CONVICTION
Chiarizio contends, and the People agree, that the trial court erred under section 654 by sentencing Chiarizio concurrently to two years for his criminal threats conviction (count 3), while also sentencing him to three years for his conviction for assault with a firearm (count 4).
Section 654, subdivision (a), provides, in pertinent part, as follows: “‘An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.’” Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. The purpose of section 654 is “to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; Neal v. State of California (1960) 55 Cal.2d 11, 22, overruled in part in People v. Correa (2012) 54 Cal.4th 331, 334.)
Because Chiarizio’s criminal threats conviction was based on the same acts as the assault with a deadly weapon offense, the trial court should have imposed and stayed Chiarizio’s sentence on the criminal threats count under section 654. The trial court must impose and stay execution of sentence on convictions for which multiple punishments are prohibited. Because Chiarizio’s sentence on count 3 is unauthorized, we are at liberty to correct it. (People v. Scott (1994) 9 Cal.4th 331, 354-355.) Accordingly, the abstract of judgment shall be modified to reflect that Chiarizio’s sentence on his criminal threats conviction (count 3) is stayed.
X
CHIARIZIO’S FIREARM ENHANCEMENT
Chiarizio requests this court to remand the case to the trial court to allow the trial court to exercise its discretion as to whether to strike Chiarizio’s firearm enhancement (§ 12022.5, subds. (a), (d)) under sections 12022.5, subdivision (c) and 1385. The People agree in their supplemental respondent’s brief that amended section 12022.5, subdivision (c) applies, because it became effective before entry of final judgment in this case. However, the People assert that this matter should not be remanded because there is no reason to believe the trial court on remand would strike Chiarizio’s firearm enhancement. We conclude the matter should be remanded to allow the trial court to exercise its discretion.
The trial court sentenced Chiarizio on November 16, 2015, to 13 years in prison. The court imposed middle terms on counts 2, 3, and 4, with count 4 deemed the principle count. Sentencing on counts 2 and 3 was imposed concurrently to the count 4 sentence of three years. The trial court imposed an additional maximum 10-year term on the firearm enhancement (§ 12022.5, subds. (a), (b)), consecutive to the count 4 sentence.
When Chiarizio was sentenced, the trial court was required to impose an additional and consecutive term of imprisonment of three, four or 10 years for defendant’s firearm enhancement attached to count 4. (See former § 12022.5, subd. (c) [effective Jan. 1, 2012] [“Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”].)
On October 11, 2017, the Governor signed Senate Bill 620, which amended section 12022.5 to give the trial court the authority to strike in the interests of justice a firearm enhancement allegation found true under that statute. Effective January 1, 2018, section 12022.5, subdivision (c), was amended to state: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, § 1(c).)
In supplemental briefing submitted in February 2018, Chiarizio argues, and the People agree, that the newly amended version of section 12022.5 applies retroactively to cases not yet final on appeal when the new provision went into effect on January 1, 2018. (See In re Estrada (1965) 63 Cal.2d 740, 747-748.) The People, however, argue that we need not remand the case because the trial court would not, in its discretion, strike Chiarizio’s firearm enhancement under section 12022.5, subdivision (c). They cite to People v. Gutierrez (1996) 48 Cal.App.4th 1894, in which the Court of Appeal concluded that remand was unnecessary when the trial court erroneously believed it lacked the discretion to strike a prior conviction under the Three Strikes law. Unlike in the instant case, in Gutierrez, the trial court stated on the record that it would not have exercised such discretion, even if it was aware it had discretion. (Id. at p. 1896.)
Here, the trial court made no comparable statement regarding the firearm enhancement at issue. The record is not clear as to how the trial court would exercise its discretion upon remand. Although the trial court imposed a consecutive, maximum 10-year term on Chiarizio’s firearm enhancement, the court did not impose aggravated terms on the substantive crimes. Instead, the trial court imposed short middle terms on counts 2, 3, and 4, and the prison terms on counts 2 and 3 were imposed concurrent to count 4. Based on the trial court imposing a relatively short three-year determinate sentence on count 4, and concurrent two-year terms on counts 2 and 3, we are not convinced that, upon remand, the trial court would necessarily reject striking defendant’s 10-year firearm enhancement in the interest of justice under amended section 12022.5, subdivision (c). Remand is therefore appropriate to allow the trial court to exercise its discretion. We express no opinion, however, as to how the trial court should exercise its newly granted discretion under section 12022.53, subdivision (c), on remand.
XI
DISPOSITION
The judgment is modified, reversed, and affirmed in part as follows:
Palmer’s sentence is ordered modified to reflect indeterminate sentences of 25 years to life, imposed and stayed on counts 2 and 4; Chiarizio’s sentence imposed on count 3 (criminal threats) is ordered stayed pursuant to section 654; as to Chiarizio’s firearm enhancement (§ 12022.5, subds. (a), (d)), the matter is reversed and remanded for the trial court to exercise its discretion regarding whether to strike the enhancement pursuant to sections 1385 and 12022.53, subdivision (c); the judgment is affirmed in all other respects.
The trial court is directed to amend the abstracts of judgment accordingly, and forward them to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICAL REPORTS

CODRINGTON
J.
We concur:


RAMIREZ
P. J.


FIELDS
J.