Filed 4/5/18 P. v. Smith CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ASHLEIGH SMITH et al.,

Defendants and Appellants.
C082458

(Super. Ct. No. 14F05089)





Following a joint trial, a jury found defendants Ashleigh Smith and Terry Scott guilty of second degree murder and assault resulting in the death of a child. The trial court sentenced the pair to state prison for an indeterminate term of 25 years to life on the latter count, staying the former.
Defendant Smith argues the evidence is insufficient to support her convictions, there was instructional error with respect to her murder conviction, and the trial court erred in admitting evidence of past abuse. Defendant Scott contends that the statute proscribing an assault that results in the death of a child (Pen. Code, § 273ab) is not constitutional, and the pattern instruction describing the necessary intent for the offense is accordingly defective. We shall reverse defendant Smith’s conviction for second degree murder, and otherwise affirm.
Defendant Scott does not challenge the sufficiency of the evidence to support his convictions, nor does his sole contention on appeal require consideration of any of the evidence amassed against him. Our factual focus is accordingly on defendant Smith. Given that she challenges the sufficiency of the evidence to support her convictions, we will incorporate the facts from trial in that part of the Discussion.
DISCUSSION
1.0 The Evidence Is Sufficient to Support Defendant Smith’s Convictions
1.1 Factual Background
The narrative begins with a phone call from defendants to 911 in the early hours of a July morning in 2014. (There had been a call between defendants’ cell phones about 50 minutes earlier, which defendant Scott testified was the point at which the baby had gone into distress.) Defendant Smith did most of the talking. She reported that her three-month-old son (born three weeks premature in April 2014) was nonresponsive after regurgitating milk, which they had attempted to extract from his airways with a suction device. Defendant Smith said they would meet the responders at the gate to the complex because they did not know the number of the apartment where they were staying. By the end of the 911 call, defendants were outside hailing the fire truck.
The firefighters quickly determined that the paramedics needed to be prepared to treat a limp infant who was not breathing at all and did not have a pulse; their preliminary examination of the infant was hampered because he was tightly swaddled in two layers of blankets, which struck them as an odd step to take with an infant who was not breathing. They noticed odd circumferential scratches around the infant’s neck, which appeared to be symmetrical rather than random (which would be atypical of self-inflicted scratches).
The circumstances of the encounter left the firefighters feeling uneasy. The captain testified that he participated in 50 to 100 calls per year involving children, and he had never seen parents behave as detached and apathetic as defendants; defendant Scott would not even look one of the paramedics in the eye or respond when questioned. The captain was concerned enough about keeping track of defendants (since this was not their residence) that he asked defendant Smith to ride in the cab of the emergency vehicle to the hospital, which was contrary to his usual protocol.
Beginning at the scene, defendant Smith gave multiple accounts of what had happened before the call to 911, which were at odds with each other and with accounts that defendant Scott provided. The briefing of the parties extensively summarizes the particulars, which are not in dispute. We thus accept their mutually agreed statements of facts. (Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 175, fn. 3.) As it is the existence of inconsistencies and not the specifics of the inconsistencies that is significant, we will not relate all the details but will simply include some of the explanations that struck the responders and medical personnel as exceptionally strange.
A nurse practitioner in the emergency room had never seen a mother as apathetic as defendant Smith, whose eyes were watery but who was not actively crying. The nurse also could not think of any reason why anyone would stop performing CPR (as defendant Smith now claimed for the first time that they had been doing before the responders arrived) and instead swaddle a baby on a warm July morning. When defendant Smith claimed that milk started regurgitating while feeding the baby, the nurse did not understand why the feeding process was not simply paused; when defendant Smith then alternately claimed that the baby began to regurgitate more than 20 minutes after being fed, the nurse found this simply bizarre and outside anything in her medical experience. It was also odd that defendant Smith asked whether performing CPR could have caused the regurgitation and choking, when obviously the CPR was supposedly a response to the situation.
When defendant Scott was finally able to arrive at the hospital, he was as apathetic as defendant Smith. There did not seem to be any rapport between the couple, or effort to console one another, with defendant Scott glaring at defendant Smith. His demeanor did not improve until a doctor told him they were not suspected of child abuse, at which point he jumped up and expressed his relief, and then went outside to smoke. When allowed to visit the intubated baby, defendant Scott was not seen and defendant Smith did not even attempt to touch her child.
A medical social worker went to speak to the couple (after doctors shared with her their suspicions that the baby was the victim of nonaccidental trauma). She found defendant Smith calmly using a computer for families in the waiting room, which is in contrast with the behavior of most families under these circumstances. In a later interview, defendant Smith told her that only defendants provided care for the baby. Defendant Scott was present for part of the interview, looking sullen and reacting angrily to a doctor who was present to explain the extent of the baby’s injuries and the small odds of his survival; the social worker had never seen such a reaction in 28 years of experience. At this point, defendant Smith was beginning to appear upset. Hearing defendants again claim that they had been suctioning the baby and performing CPR for 30 minutes before calling 911, it struck the social worker that this was a long time to delay in summoning medical aid.
Ultimately, the efforts of defendants to account for the condition of their infant paled in the face of his grievous injuries. There was discoloration on the back of his head from some impact in the last month, with hemorrhaging underneath. There was evidence of chronic injury to the right side of the brain from a lack of blood supply (which could be the result of a compressed artery), and it had shrunk in size compared with the other hemisphere. The left side of the brain also had a hematoma from an acute injury. There were scars and abrasions on both sides of his neck. He had a total of 10 rib fractures in different stages of healing. A testicle and an eye were hemorrhaging. The degree of injury to the right side of the brain would have caused difficulties with movement that should have been apparent to any reasonable caregiver. Overall, the pathologist attributed the cause of death to blunt force trauma within a day or two before the baby was declared brain dead. A consulting physician believed that dead tissue in the brain was the result of choking the right carotid artery. The injuries bringing about the baby’s death had to have occurred within two to three days before the brain death. The scratches around the neck were simply an injury that could not be necessarily connected with any choking.
In subsequent separate police interviews later that day at the hospital, defendant Scott was crying. On the other hand, defendant Smith was still nonchalant and did not inquire after the condition of her child.
That evening, the police conducted separate interviews of defendants at the station. As defendant Scott was awaiting transport, he sat in the police car rapping to himself; defendant Smith was devoid of affect as she sat in the patrol car. The detective interviewing defendant Smith testified that she appeared to be acting as if she were in tears, but was not actually crying. She accounted for the scratches on the infant’s neck as the inadvertent product of her long artificial nails while bathing him a couple of weeks earlier. She had never seen anyone abuse the infant. Defendant Scott’s demeanor through his interview was unlike anything the detective had ever encountered. He was apathetic, when he was not being mocking or aggressive. Both defendants said that they had exclusive care of the baby for his short life, and defendant Smith said that the couple were continuously in each other’s company except while she was busy with online courses. Defendant Scott eventually admitted that earlier in the month he had dropped the infant on his head while bathing him, and had squeezed and shaken him in June (demonstrating an alarming degree of force to the detective on a doll that was in the interview room). He denied that defendant Smith ever abused the baby.
At one point, defendants were left together in a room where they were under surveillance. They conversed in hushed voices, and the words were indiscernible in the original recording. Detectives had one of their video production specialists enhance the audio. (Although defendant Smith points out that portions of the recording are still unintelligible, she does not assert any foundation was lacking for admission of the recording and its transcript into evidence.) Defendant Scott began by saying, “Forever going to jail,” and then “I wanted to talk to you. To tell you I am sorry [¶] . . . [¶] [f]or abusing him. For choking him.” He then said, “It’s something awful. We did it but I’m a liar.” He asked her, “You think this is all for me, brah?” She answered, “I’m going to get it. Do you hear me? Look me in the eye. Because if they let me go . . . I swear on this family, you will be taken care of. Okay?” He responded, “I just need you to bail me out. I’ll just go on the run.” Defendant Smith said that she had been told she would be released from jail on her own recognizance in a few days and would scrounge up the money for his bail. She asked, “what did they say when you took the blame?”; he told her that he would be heading to trial. When defendant Smith wondered whether she would be going to jail, defendant Scott said, “I don’t know. I told him that you didn’t have nothing to do with it. I told him that you wasn’t even around when it happened.” When he said this, she looked visibly relieved on the video and grabbed his hands. When a detective questioned defendant Smith after removing defendant Scott from the room, she said that defendant Scott did not respond when she asked him why he abused their child.
A search of the apartment from which defendants had called 911 did not find any signs of regurgitation. A recovered suction device also did not have any signs it had been used to extract regurgitation.
Defendant Smith had an older daughter born in 2010. In July 2011, the maternal grandmother retrieved the daughter from defendant Smith’s home, where she had been left in the custody of a man not known to the grandmother. The daughter had scratches around her neck, bruising on her body, and diaper rash so severe it required medical attention. From her own child-rearing experience, these injuries did not look ordinary to the grandmother. Defendant Smith told the grandmother that she was not aware of the injuries. The grandmother filed a report with child protective services, who returned the child to the custody of defendant Smith after a week. The following month, the grandmother learned that the child had incurred a broken leg, and wondered how a child that was not yet walking could sustain such an injury. This time, child protective services removed the daughter from defendant Smith’s custody on the grandmother’s report. X-rays determined that the leg was broken in two places. The child was never returned to defendant Smith’s custody; after the termination of parental rights, her sister adopted the daughter and obtained a restraining order against defendant Smith. Defendant Smith had told the grandmother that the child had jumped off the bed onto the floor, a story to which the grandmother did not give much credence given the child’s physical abilities, who was able to pull herself upright on the headboard but had never bounced on the bed in her grandmother’s presence. The grandmother also testified that defendant Smith was a habitual liar like her father.
The physician’s assistant who treated the daughter testified that the break was in a spiral pattern resulting generally from twisting force and not compression from a jumping injury. He conceded this twisting could have resulted if the child had planted her foot on landing and her body then turned.
While defendants were staying briefly with the mother of defendant Scott, the mother heard the baby cry out as if in extreme pain. When the mother rushed to the room, the door was closed. She was able briefly to open the door before defendant Smith closed it again, holding the baby in her arms. The baby cried often in defendant Smith’s care when defendant Scott was out of the house, and when defendant Scott first brought the infant over, the mother thought there was something not quite right, asking her son “You can’t see something is wrong with him?” and insisting that they go to Methodist Hospital, where a nurse agreed that the baby looked “a little bit out of it.” The couple left after the mother told defendant Smith that she wanted a paternity test. When his mother visited him in jail, defendant Scott said he had not done anything and was taking the rap.
1.2 Analysis
In his argument to the jury, the prosecutor contended that it was irrelevant which defendant had committed the abuse, and the jury did not need to agree on the theory of liability; even if not the person who directly inflicted the injuries, the other would be vicariously liable at least under the failure to comply with the duty of a parent to put a stop to abuse that must have been apparent (People v. Rolon (2008) 160 Cal.App.4th 1206, 1209 (Rolon)), or in helping to cover up the actions of the other after the infliction of the abuse. Even if one of them were only complicit in simple child abuse, an assault resulting in death would be the natural and probable consequence of the target crime.
Defendant Smith argues that only defendant Scott admitted abusing the baby, and there is otherwise an absence of any evidence that she is directly liable for any abuse. She also contends there is an absence of any direct evidence that she was aware of any abuse and failed to act, or that she intentionally encouraged or assisted in an assault resulting in death (or simple abuse reasonably resulting in the same).
What defendant Smith disregards is the circumstantial evidence of her direct or complicit participation in murder or assault of a child resulting in death, direct evidence so rarely being available in these heinous offenses. There is the absolute lack of credence to her ever-shifting attempts to explain the death as a consequence of a regurgitation that the physical and medical evidence did not support, and her suggestion that this phantom ailment might be the result of CPR that would be in response to it. The medical experts opined that there would be neurological deficits from ongoing abuse that should have been apparent to any reasonable caregiver, and were in fact apparent to defendant Scott’s mother and the Methodist Hospital nurse when defendant Scott brought the baby in for treatment. Although we are wary of ordinarily inferring that a person’s failure to comply with a purported template of grief unerringly points to a consciousness of guilt, there is also defendant Smith’s lack of reaction to the death of her baby, which was so outside common experience that everyone who encountered her was struck by it. Further, the jury heard defendant Smith’s own mother testify that she was a habitual liar. In addition, the recorded conversation with defendant Scott was at least an adoptive admission that she agreed defendant Scott was not being truthful in accepting full blame for the death, for which she would make sure that he would be “taken care of.” Finally, there is the evidence of abuse of her daughter which, if the jury found by a preponderance of the evidence that she committed, could be the basis for an inference that she committed abuse against her son as well. This overwhelming manifestation of a consciousness of guilt is more than sufficient for a jury rationally to conclude that she either committed or was complicit in the abuse (whether actively or as a matter of a knowing failure to act on her duty as a parent). We therefore reject the claim.
2.0 The Pattern Instruction on Second Degree Murder Is Erroneous and Requires Reversal of the Conviction
The trial court provided the jury with the pattern instruction on second degree murder (CALCRIM No. 520). The instruction starts off with liability premised on the “commi[ssion of] an act that caused the death of another person” with “a state of mind called malice aforethought” (explaining the distinction between express malice and implied malice). After the caveat that malice aforethought does not require hatred or ill will, the instruction in the present case contains a modification in which the concept of a failure to act appears for the first time: “When the killing is the direct result of such an act or failure to act, it is not necessary to prove that the defendant intended that the act or omission or failure to act would result in . . . death . . . .” (Italics added.) The portion causing us difficulty comes after a definition of “substantial factor” in connection with causation. In accordance with a recommendation in pattern instruction for cases that involve an affirmative duty, the jury was told “[a] parent [of] any person under the age of 18 [has a] duty to exercise reasonable care, supervision, protection, and control over that minor child.” (See People v. Heitzman (1994) 9 Cal.4th 189, 198.) And, “If you conclude that a defendant owed [such] duty to [the victim] and the defendant failed to perform that duty, [the] failure to act is the same as doing a negligent or injurious act.” (Italics added.)
In a case in which the People sought to premise liability on a failure to exercise the general duty of care by driving while drunk, People v. Johnson (2016) 6 Cal.App.5th 505 (Johnson) found that this reference to a negligent act was “confusing, to say the least” (also noting that a general duty of care is not akin to the special duty to act necessary for liability by omission), as there was an “absence of any other discussion of negligence in the jury’s instructions” (id. at p. 515 & fn. 6). While it was possible that the jury might have recognized the reference to negligence was irrelevant, “the language suggests a finding that [the] defendant failed to drive with adequate care . . . equates to culpability for second degree murder.” (Id. at p. 516.) “We, as a reviewing court, [do not] have [any] way of knowing whether the jury applied the correct definition of implied malice given elsewhere in its instructions, or the erroneous language we have focused on here, in reaching [its] verdict.” (Ibid.)
Although defendant Smith cited Johnson in her opening brief, the People did not analyze it in their response, which otherwise devoted only two pages of the 25-page-long argument to the issue of instructional error. We asked the People to remedy this lacuna in supplementary briefing.
It is unclear from what source the pattern instruction derived its statement that a failure to act pursuant to a duty is the equivalent of an injurious or negligent act. The prior pattern instructions used in connection with a parent’s failure to protect a minor child did not make any reference to negligent acts. (See Rolon, supra, 160 Cal.App.4th at pp. 1213-1214.) The failure to take “reasonable” steps (as opposed to extraordinary) to protect the minor must be done “knowingly”; “such intentional conduct in support of an aider and abettor can support liability for implied malice murder.” (Id. at p. 1219, italics added; accord, People v. Latham (2012) 203 Cal.App.4th 319, 332 [evidence sufficient to establish that parents knew of extent of minor’s medical condition and failed to obtain medical treatment “in conscious disregard of that risk”].)
In their supplementary briefing, the People do not attempt to argue that equating a failure to act with doing a negligent act does not constitute error. We thus agree with Johnson that equating a failure to act with doing a negligent act allows for the possibility that a juror—perhaps uncomfortable with needing to find such unnatural behavior on the part of a mother as the conscious disregard of a danger to her child—would be satisfied to find only that defendant Smith was negligent in her failure to protect her baby from abuse at the hands of defendant Scott. We turn to the People’s efforts to establish that this error was not prejudicial.
“Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court [does not have any way] of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” (Francis v. Franklin (1985) 471 U.S. 307, 322-325 [85 L.Ed.2d 344, 358] [instruction that is internally inconsistent about the application of impermissible mandatory presumption is reversible error].) “Numerous cases have held that giving instructions that are contradictory or so inconsistent [as] to confuse the jury was reversible error.” (People v. Lewelling (2017) 16 Cal.App.5th 276, 299; accord, People v. Jeter (2005) 125 Cal.App.4th 1212, 1217-1218.)
Attempting to demonstrate that the instructions as a whole (which we assume that jurors are capable of correlating (People v. White (1987) 188 Cal.App.3d 1128, 1138-1139)) communicated that negligence is insufficient to establish implied malice, the People cite various portions of the charge to the jury. We are not convinced.
The People rely on the instructions regarding involuntary manslaughter. The problem, however, is that the instructions are couched in terms of an affirmative act, not a failure to act: “When a person commits an unlawful killing, but does not intend to kill and does not act with conscious disregard for human life”; “[a]n unlawful killing caused by a willful act”; and “[a]n unlawful killing resulting from a willful act” (italics added). Thus, the portion of the instruction distinguishing second degree murder as requiring defendants to be “aware of the risk to life that [their] actions created [but] consciously disregard[ing] those risks” (italics added) does not resolve the contradiction in the faulty CALCRIM No. 520. The same is true in connection with the alternative of committing a lawful act with “criminal negligence” (referencing the act of disciplining a child), because the definition of that heightened standard of negligence—“more than ordinary carelessness,” amounting to “act[ing] in a reckless way that creates a high risk of death” that demonstrates a “disregard for human life or indifference to the consequences of that act” (CALCRIM No. 580, italics added)—is not tied in any respect to the failure to act.
The People also cite additional instructions in their supplemental briefing, which are more to the point. In the general instructions on the need for a union of act and mental state, the trial court told the jury that “Murder is charged in Count One. For you to find a person guilty of this crime, that person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent and mental state” (italics added), and in discussing the People’s burden of proof for the offense, the trial court instructed that they must demonstrate “beyond a reasonable doubt that the defendant acted with an intent to kill or with conscious disregard for human life” (italics added). The latter, of course, suffers from the same problem as the other instructions we have just discussed, in that nothing alerts the jury that it needs to tie the standard to a failure to act. The former instruction and related argument, on the other hand, at least connect intention and deliberation to a failure to act. However, these isolated bits of the instructions and argument are the proverbial “thin reed” on which to lean in ascertaining a “reasonable” juror’s read of the instructions as a whole, and we do not think they are sufficient to counteract CALCRIM No. 520’s conflation of negligence with a failure to act.
The People alternatively argue in the supplementary briefing that it is not reasonably probable a properly instructed jury would have reached a different verdict in light of the “mountain of evidence” against defendant Smith. However, that standard of prejudice applies to ambiguous instructions (as pointed out in their own authority) and not to instructions that include a legally flawed theory. (People v. Ngo (2014) 225 Cal.App.4th 126, 152.) In the latter situation, the People must demonstrate beyond a reasonable doubt that the jury actually based its verdict on the proper standard. (People v. Guiton (1993) 4 Cal.4th 1116, 1129; People v. McDonald (2015) 238 Cal.App.4th 16, 27.) We do not have any such evidence in the present record that the jury necessarily rested its verdict on a finding that in failing to protect her child defendant Smith acted with the abandoned and malignant heart (§ 188) required for second degree murder. As a result, even though it would seem improbable that a new jury would come to a different result, we must reverse the conviction for second degree murder.
We have, however, determined there was sufficient evidence to support a verdict of second degree murder. Therefore, the People are entitled to retry defendant Smith on that charge (People v. Hallock (1989) 208 Cal.App.3d 595, 607) if they feel the effort is warranted, given that the trial court stayed sentence on it.
3.0 The Trial Court Properly Admitted Evidence of Prior Child Abuse
Before trial, the parties litigated the admissibility of the injuries to defendant Smith’s daughter in 2011 pursuant to Evidence Code section 1109 (which, subject to section 352 of that code, permits the introduction of propensity evidence involving domestic violence or child abuse). The statute incorporates the definition of “domestic violence” (Evid. Code, § 1109, subd. (a)) appearing in Family Code section 6211 (which includes abuse against a party’s child).
Defendant Smith’s main objection to admission was the absence of direct evidence that she was the agent of the injuries, as opposed to being simply neglectful about the abuse by others. Defense counsel argued the evidence was more prejudicial than probative as a result. The trial court concluded that the present case “is the ultimate form of domestic violence” and the prior acts of child abuse were also domestic violence for purposes of the exception to the exclusion of propensity evidence. In terms of prejudice, the prior conduct was not more shocking than the death of the present victim, the conduct was recent, the jury was not likely to be confused about the past and present acts, and the jury was unlikely to want to punish her for the prior acts because they resulted in the termination of defendant Smith’s parental rights. The court accordingly found the evidence admissible.
Defendant Smith essentially rehashes her arguments in the trial court. She contends as a matter of law the prior incidents cannot constitute domestic violence because child protective services charged her only with neglect rather than abuse after the July referral and returned the child to her custody, and a doctor had apparently opined at the time of the August incident that it was conceivable the broken leg could have occurred if the child jumped off a bed (rather than being an inflicted injury like the rest). She also contends the trial court abused its discretion in not finding the evidence unduly prejudicial.
Defendant Smith does not provide any authority for her position that evidence of prior domestic violence must demonstrate on its face that a defendant is the agent of the abuse in order to be admissible, as opposed to allowing a jury to determine whether the abuse can be attributed to the defendant. Even when a victim is available to testify that the abuse was at the hands of a defendant, a defendant can still contest the credibility of the victim in seeking to convince a jury that it did not happen. As for the resolution of whether the evidence should nonetheless be excluded as being unduly prejudicial, we do not find the trial court’s reasoning to be an abuse of discretion. We therefore reject the argument.
4.0 Section 273ab Is Constitutional
The elements of section 273ab require proof that a person with the care or custody of a child under eight years old used force on the child that to a reasonable person would be likely to produce great bodily injury (not necessarily death), which resulted in the child’s death even if that was not the intent. (People v. Albritton (1998) 67 Cal.App.4th 647, 655 (Albritton).) It is not a “murder” statute but a “homicide” statute, because it does not require the presence of malice, regardless of the fact that it carries the same penalty as murder. (Id. at p. 656.)
Albritton also rejected an argument that section 273ab unconstitutionally imposed strict liability for a death without requiring a mental state of intent to kill. Albritton noted that the statute did require a scienter (the general intent to commit an act resulting in an assault likely to produce great bodily injury), and no constitutional obstacle existed that would prevent the Legislature from imposing a penalty for such conduct equivalent to murder in order to protect the most defenseless of its citizens. (Albritton, supra, 67 Cal.App.4th at pp. 659-660.)
Notwithstanding the absence of any criticism of Albritton for 20 years, defendant Scott simply asserts we should not follow its holding. His argument does not raise any new point to counter the central premise of Albritton: The statute indeed has a scienter element, so it is not a “strict liability” offense, and neither the state nor federal constitutions preclude the Legislature from imposing one of its most severe punishments for an assault that results in the death of a young child even if not so intended. It is a punishment easily avoided by refraining from assaulting a young child with force likely to produce great bodily injury. Analogies to the scienter needed for vicarious liability for murder as a natural and probable consequence, or to the merger doctrine (under which an assault cannot be bootstrapped into a felony murder conviction) are also pointless, because they are not “comparable situations”; this is a crime other than murder that simply bears an equivalent punishment for abhorrent conduct. Albritton is also fatal to defendant Scott’s subsidiary argument that the pattern instruction on the elements of section 273ab does not include a requirement that a jury must find that a defendant did or should have known that his act was likely to result in death.
DISPOSITION
Defendant Smith’s conviction for second degree murder is reversed and the matter remanded for retrial; if the People fail to request retrial within 30 days of the issuance of our remittitur, the trial court shall dismiss that count. The judgments are otherwise affirmed. The trial court shall make the appropriate amendments to defendant Smith’s abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.



BUTZ , J.



We concur:



RAYE , P. J.



ROBIE , J.