P. v. Khalafala

Filed 4/18/07 P. v. Khalafala 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

Defendant Khalafala M. Khalafala assaulted Debra P. intending to rape her. Later, out of custody from the first assault, defendant assaulted Shelly C. intending to rape her. In a court trial, defendant was convicted of two counts of assault with intent to commit rape. Sentenced to eight years in state prison, defendant appeals. Representing himself on appeal, defendant makes numerous contentions of error. We conclude his contention that he was improperly sentenced to full and consecutive terms pursuant to former Penal Code section 667.6, subdivision (d) has merit because defendant does not have the requisite prior conviction. Accordingly, we affirm the conviction but vacate the sentence and remand for resentencing.

PROCEDURE

The district attorney charged defendant, by a complaint later deemed an information, with two counts of assault with intent to commit rape: of Debra P. on February 19, 2004, and of Shelly C. on June 28, 2004. Defendant waived his right to trial by jury, and the trial court found defendant guilty on both counts. After trial, the court granted defendants request to represent himself. The trial court sentenced defendant to state prison for eight years, consisting of the middle term of four years for each count, to be served consecutively.

FACTS

In 2004, Debra P., a homeless person who hung out near a market in the Oak Park area of Sacramento, noticed defendant, a newcomer to the area. On February 19 of that year, in the evening, Debra and her husband argued in a field near the market. Debra wrestled her husband to the ground, and defendant pulled Debra off her husband. Debras husband said, loudly, Do what you want to do with her?

As Debras husband walked away, defendant asked Debra where his bicycle was. She responded that she knew nothing about his bicycle. She pointed to a bicycle and began to walk away when defendant grabbed her by the back of her coat and threw her in the bushes. On the ground, Debra called for help as defendant got on top of her, chest to chest. One of defendants hands was on Debras neck. While choking Debra, defendant tried to unbutton her pants. He told her not to call for help or he would break her neck. He also said, you gonna give me some pussy. After struggling for several minutes, Debra told defendant to let her up and she would take off her clothes.

Police officers arrived while defendant was still on top of Debra. When they said to freeze, defendant jumped off of Debra. Debra, with a deep cut on the inside of her lip and upset, told one of the officers what had happened. The officers arrested defendant. Debra identified defendant that night as the one who assaulted her.

Late in the evening on June 28, 2004, Shelly C. was walking to her boyfriends house in south Sacramento. Defendant approached her and asked for a light. Defendant grabbed Shelly by the sweatshirt, pulled the sweatshirt over her head, and threw her up against a fence. Shelly pulled her sweatshirt back down, but defendant started choking her. Defendant grabbed Shellys head and kneed her in the face. He dragged her into a driveway and pulled her down onto the ground with him behind her. Defendant held his hand over Shellys mouth, and she tried to remove his hand. He told her not to scream or he would kill her.

Saying he had a gun or a knife, defendant told Shelly to take off her clothes. He tried to pull off her pants, as she held onto them. Afraid for her life, Shelly told defendant she would take off her clothes, but she continued to hold her pants and blouse closed. Defendant reached into his backpack. When he did so, Shelly screamed as loud as she could. Defendant jumped up and ran off.

Bloodied and crying, Shelly went to her boyfriends house and had someone call the police. Later that night, Shelly identified defendant, who had been detained, as her assailant.

DISCUSSION

I

Motion for New Trial

Defendant, on his own behalf, filed a motion for new trial. He asserted his representation was flawed in several ways. After admonishing defendant concerning representing himself and obtaining the appropriate waivers, the court allowed defendant to represent himself and argue his motion. The court then denied the motion for new trial.

Defendant asserts the trial court erred in denying his motion for new trial, in which defendant argued ineffective assistance of counsel and discovery of new evidence. As discussed in detail below, defendants counsel was not constitutionally deficient. We also conclude the trial court did not err as to the newly discovered evidence argument.

Unless the defendant establishes the trial court clearly abused its discretion in denying a motion for new trial, we will not reverse. (People v. McDaniel (1976) 16 Cal.3d 156, 178-179.) When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given . . . . (People v. Beeler (1995) 9 Cal.4th 953, 1005, italics in original.)

In support of his motion for new trial, defendant filed a document stating: Hereby, I want to confirm to the court that, the officer, Micheal Avilla [sic, Michael Avila], who testified in court, was not the police officer who actually arrested me in the night of the 28th of June 2004. []  Furthermore, in directions of the court, I will testify against Officer Avilla [sic], providing extra two witnesses from the booking process who can verify my truthful claim.

Defendant simply stated, without support of witness affidavits, that he would obtain the testimony of witnesses from the booking process to establish that the officer who testified against him was not the officer who arrested him. This was insufficient to support a motion for new trial. Therefore, the trial court did not abuse its discretion in denying the motion for new trial.

II

Suppression of Evidence

Defendant contends his conviction with respect to the Shelly C. assault must be reversed because the prosecution lost or withheld a blue T-shirt he was wearing when he committed the crime. He appears to argue that the T-shirt was crucial to his defense; however, he does not state clearly why the T-shirt was crucial. In any event, we conclude defendant was not deprived of a fair trial and therefore reject this contention.

The prosecution must not suppress evidence favorable to a defendant. (Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215, 218].) A failure to disclose evidence, whether willful or inadvertent, violates due process if the evidence is material to guilt or punishment. (Ibid.) Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. (In re Williams (1994) 7 Cal.4th 572, 611.) Evidence favorable to the defendant includes both exculpatory evidence and impeachment evidence. (Strickler v. Greene (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286, 302].)

Although a dispatch summary of the incident report stated that the perpetrator was wearing a white T-shirt, Officer Michael Avila arrested defendant, who was wearing a blue T-shirt. When defendant was booked, he was photographed without a shirt on. The prosecution did not introduce a blue T-shirt into evidence. In closing argument, defense counsel highlighted the discrepancy between the white T-shirt and the blue T-shirt.

Defendant fails to note any exculpatory or impeachment value to be had by obtaining the blue T-shirt. He also argues that Officer Avila noted foxtails on the victims clothing and on defendants belt area and that the victim relied, in part, on a vest defendant was wearing when she identified him the night of the assault. Again, nothing leads us to believe that defendant would have been exculpated or a witness would have been impeached if the blue T-shirt had been present at trial. Accordingly, defendant has failed to show that the prosecution suppressed evidence favorable to the defense.

III

Sufficiency of Evidence

Defendant asserts the evidence was insufficient to sustain the convictions for several reasons. On appeal, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from it. (In re James D. (1981) 116 Cal.App.3d 810, 813.)

A. In-Court Identification

About a week before trial, the prosecutor showed Shelly a photograph of defendant. Defendant asserts this procedure tainted Shellys in-court identification of defendant and, therefore, the identification was inadmissible. Defendant forfeited this argument by failing to make the argument in the trial court. (Evid. Code,  353.) In any event, the argument is without merit.

When Shelly went to the prosecutors office before trial, she was shown the photograph of defendant. At trial, she was questioned, by both the prosecutor and defense counsel, concerning what the prosecutor said and what she said with respect to the photograph in the prosecutors office. On direct examination, Shelly stated that the person in the photograph was the person who assaulted her.

During cross-examination, Shelly testified that the prosecutor showed her the photograph in his office and said, thats him, you know, the guy you said is him. She agreed and identified the person in the photograph as her assailant. Shelly also testified she believed her assailant would be in court because the prosecutor had told her he would be there.

On redirect examination, Shelly clarified that the prosecutor, when showing her the photograph, had said, this is a person who you said that rapes [sic] -- or attacked you, and you said, ah, does that look like him, and I said yes. She told the prosecutor that the photograph showed the person she had identified in the field on the night of the attack.

Defense counsel asked several more questions on recross-examination:

Q. [D]id [the prosecutor] tell you that this was the person that did it that night? Yes or no?

A. Say that again. When he showed me the pictures did he ask me if that was the person. []  Yes.

Q. And did he tell you that person was going to be in court?

A. Did he tell -- yes, he did.

[] . . .  []

Q. Before you got to court you knew that the person that had attacked you was going to be sitting in court?

A. Oh, yes.

With leading questions, the prosecutor and defense counsel appear to have elicited what each wanted from the witness. Therefore, it is not clear whether, when the prosecutor showed the photograph to Shelly, he told her that this was the person who assaulted her or this was the person she said had assaulted her. Regardless of which version is correct, two things are clear: first, Shelly, upon seeing the photograph in the prosecutors office, responded that it was definitely her assailant, and, second, defense counsel impeached Shellys identification with his leading questions.

In deciding whether an extrajudicial identification is so unreliable as to violate a defendants right to due process, the court must ascertain (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances. [Citation.] The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citation.] (People v. Gonzalez (2006) 38 Cal.4th 932, 942.)

Here, the facts surrounding Shellys identification of defendant in a photograph in the prosecutors office and later identification of defendant at trial do not amount to a violation of due process when viewed under the totality of the circumstances. As discussed below, Shelly identified defendant the night of the assault. That identification was the reason the prosecutor had a photograph of defendant which he showed to Shelly. In other words, the reason for Shellys identification of defendant at trial was not that she saw his photograph in the prosecutors office. Instead, it was based on her observation of defendant during the assault and her identification of him that night. Considering the totality of the circumstances, the identification procedure was not unreliable and did not taint Shellys in-court identification of defendant.

Since Shellys identification of defendant was not tainted, her identification was sufficient evidence that defendant was her assailant.

B. In-Field Identification

Soon after the Shelly C. assault, an officer told Shelly there was a possible suspect and that it may or may not be the guy who assaulted [you]. The officer also told Shelly she did not have to identify anybody. The officer drove Shelly to where defendant was detained. The officer put a spotlight on defendant as he stepped out of another patrol car. Shelly identified defendant as her assailant.

On appeal, defendant contends this in-field identification was unduly suggestive and should have been excluded. Defendant forfeited this argument by failing to make the argument in the trial court. (Evid. Code,  353.) In any event, the argument is without merit.

As noted above, an extrajudicial identification procedure violates a defendants due process rights only if it was unduly suggestive and unreliable under the totality of the circumstances. (People v. Gonzalez, supra, 38 Cal.4th at p. 942.) An in-field identification is not inherently unfair. (People v. Cowger (1988) 202 Cal.App.3d 1066, 1071.) To the contrary, single-person show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witnesss mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended. (In re Carlos M. (1990) 220 Cal.App.3d 372, 387, italics omitted.) Thus, the admissibility of an in-field identification, like any other identification procedure, must be assessed in the light of the totality of the circumstances. (People v. Cowger, supra, at p. 1071.) [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness[s] degree of attention, the accuracy of the witness[s] prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (Neil v. Biggers (1972) 409 U.S. 188, 199-200 [34 L.Ed.2d 401, 411].)

Immediately after the assault, Shelly went to her boyfriends house and reported the assault. Officer Avila received a call to respond to the area of the assault with a description of the assailant as a male East Indian or Middle Easterner in his 30s or 40s wearing a white shirt and blue jean shorts. Officer Avila found defendant pushing a shopping cart across Franklin Boulevard, within a short distance of and coming from the direction of the reported assault. Defendant was out of breath and sweating. He had grass and thistles on his back and in his beard. The shirt he was wearing was blue, not white, and he did not have a backpack. Officer Avila detained defendant and, within minutes, Shelly identified him as her assailant.

Defendant attempts to call into question this identification because of some discrepancies. For example, the report Officer Avila received was that the assailant was wearing a white T-shirt, not a blue T-shirt. And the report said nothing about a shopping cart but instead described a backpack, which defendant did not have when detained. Also, there was no blood observed on defendant, even though Shelly was bleeding. These are only minor discrepancies and are insignificant in the totality of circumstances. Defendant met the general description of the assailant and was hurrying away from the scene of the crime when apprehended. The in-field identification was not unduly suggestive and, therefore, Shellys identification of defendant was sufficient to sustain the conviction.

C. Evidence of Criminal Intent

Concerning the Debra P. incident, defendant states the evidence was insufficient to establish criminal intent. His argument, however, seems to be that the victim could not see well because she did not have her glasses on. Whatever defendants contention is, it is without merit. Defendants criminal intent -- intent to rape Debra -- was shown by his attack on her, his attempt to take off her clothing, and his demand that she give [him] some pussy. Her ability to identify him, even though she was not wearing glasses, was also established at trial. When asked to read something on the witness stand, she said she did not have her glasses but could still read it. This, along with the darkness on the night of the assault, did not establish an inability to identify defendant.

D. Sufficiency of Testimonial Evidence

Seizing on several inconsistencies in the testimony of Debra P. and her intoxication on the night of the assault, defendant contends her testimony was inherently unreliable. We disagree.

Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact. (Evid. Code, 411; see 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, 89-94, pp. 123-130.) Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] [Citations.] (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12; People v. Martinez (1999) 20 Cal.4th 225.) (Bradley v. Perrodin (2003) 106 Cal.App.4th 1153, 1166.)

Defendant does not show that the evidence was insufficient as to any particular fact with respect to the Debra P. assault. Instead, he quotes from the record and claims these portions of the record establish that Debra is not to be believed. To the contrary, the quoted portions of the record show, at best, some confusion about inconsequential details, not about the elements of the assault with intent to commit rape. The same is true of defendants observation that Debra was intoxicated and upset when she reported the assault. Despite the victims intoxication, the evidence, including the fact that the police found defendant on top of the victim, was overwhelming that defendant assaulted Debra with intent to rape.

Defendant also notes that Debra had a fight with her husband and tries to convince us that her injuries were from that fight. As we stated above, our role, on review, is to determine whether the evidence was sufficient. We do not retry the case on appeal. Therefore, the argument that Debras injuries may have been caused by her husband is unavailing.

E. Cumulative Error

Defendant asserts that errors with regard to evidence resulted in prejudice cumulatively. The assertion is without merit. The evidence discussed here was admissible and sufficient to convict.

IV

Effective Assistance of Counsel

Defendant contends he was deprived of his right to effective counsel. To conclude counsel has provided ineffective representation in violation of the right to counsel, we must find not only that counsel was deficient but also that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693, 698].) None of the specific contentions has merit.

A. Failure to Present Witnesses

Defendant claims counsel failed to present witnesses at trial. He asserts counsel should have called Delia Moreno (whom he calls the main defense witness) and Debra P.s husband. Yet he does not explain how the testimony of these two individuals would have assisted the defense case. Because defendant has failed to explain how such testimony would have benefited the defense, we cannot conclude it would have been a benefit. Other than Delia Moreno and Debra P.s husband, defendant fails to indicate what witness counsel should have but did not call. Therefore, this claim fails.

B. Falsification of Testimony

Defendant again raises the issue of whether Officer Avila was the one who arrested him. He claims counsel was deficient for not raising the issue. However, the record contains Officer Avilas testimony that he was the one who detained and then arrested defendant after the assault on Shelly C. Nothing in the record, except defendants unsupported claims to the contrary, sustains defendants position. We therefore reject the claim that counsel should have raised the issue of whether Officer Avila was lying.

C. Failure to Investigate

We also reject defendants related claim that counsel failed to investigate adequately because he did not interview a nurse at the county jail about whether Officer Avila was the arresting officer. Although the nurse, as defendant alleges, may have been involved in the booking process, there is no indication in the record that she had any knowledge concerning Officer Avilas arrest of defendant.

Also under a heading of failure to impeach, defendant contends defense counsel failed to impeach Debra P. During cross-examination by defense counsel, Debra admitted she had been convicted twice of selling drugs. Defendant quotes the testimony in this regard and then asserts defense counsel failed to impeach Debra. But what defendant quoted was impeachment. Therefore, defendants argument makes no sense.

D. Failure to Present Exculpatory Facts

Defendant argues the blue T-shirt he was wearing when arrested after the Shelly C. assault was important to his defense and defense counsel was deficient for failing to locate the shirt and introduce it into evidence. It appears defendant was wearing the shirt when arrested, but the shirt did not get booked into evidence. Although defendant states counsel was well aware of the exculpatory value of the shirt, he does not reveal to us what that exculpatory value was. Accordingly, we conclude defense counsel was not deficient for not obtaining the blue T-shirt and introducing it into evidence, even assuming, for the purpose of argument, that it would have been possible to locate the shirt.

E. Failure to Prepare

Defendant contends counsel was deficient because he did not adequately prepare. The record reveals that defense counsel asked Debra if she had ever been arrested for prostitution. She replied she had not. The prosecutor and court then helped counsel clear up some confusion counsel had about the issue. He believed she had been arrested for prostitution when, in reality, the arrest was for being drunk in public. This was a harmless mistake on the part of defense counsel and does not establish ineffective assistance.

F. Failure to Object

Referring again to the prosecutors showing of the photograph of defendant to Shelly a week before trial, defendant contends counsel was deficient for failing to object based on this identification procedure. As noted above, this procedure was not unduly suggestive and did not result in an unreliable identification. Therefore, counsel was not deficient for failing to make the objection.

G. Motion to Dismiss

Defense counsel filed a motion to dismiss based on conduct of the prosecutions investigator, based on the following facts: After Debra had failed to appear for the first trial, forcing the prosecution to have the case dismissed, the investigator contacted her and told her that defendant had reoffended and it was important for her to appear in court to testify against him. The investigator, based on a misreading of the report of the Shelly assault, told Debra the victim of the second assault was only 15 years old. Once the investigator was apprised of the error, he contacted Debra to correct the error. The court denied the motion to dismiss, stating that the evidence of the investigators conduct did not require dismissal.

Defendant asserts defense counsel was deficient with respect to this motion to dismiss. We disagree. Counsel moved to dismiss, and the trial court determined dismissal was not warranted. Defendant offers nothing defense counsel could have done to change that valid conclusion.

V

Hearsay Evidence at Preliminary Examination

During defendants preliminary examination, Detective Gerald Roth testified that defendant was the one Shelly identified as her assailant. The detective based his testimony on hearsay from Officer Avila. Defendant contends the use of hearsay at the preliminary examination to identify him as the assailant in the Shelly assault violated his confrontation rights. He is mistaken. Use of hearsay at the preliminary examination is constitutionally acceptable. (People v. Miranda (2000) 23 Cal.4th 340, 349.)

VI

Speedy Trial Rights

Because Debra P. did not appear for the first trial, the charge against defendant was dismissed. Later, however, the charge was included in the prosecution against defendant after he committed the Shelly C. assault. Defendant contends the refiling of the Debra charge violated his right to a speedy trial. Defendant waived this contention by failing to make the contention in the trial court. (People v. Wilson (1963) 60 Cal.2d 139, 146-147.) Furthermore, the delay was justified by Debras failure to appear despite being subpoenaed, and defendant cites no evidence establishing prejudice from the delay. (See Barker v. Wingo (1972) 407 U.S. 514 [33 L.Ed.2d 101] [federal speedy trial right claim]; People v. Roybal (1998) 19 Cal.4th 481, 513 [state speedy trial right claim].)

VII

Sentencing Error

Former Penal Code section 667.6, subdivision (d), effective at the time of defendants crimes, provided: A full, separate, and consecutive term shall be served for each violation of [Penal Code] Section 220 . . . provided that the person has been convicted previously of violating Section 220 . . . if the crimes involve separate victims or involve the same victim on separate occasions. (Stats. 2002, ch. 787,  16.) A defendant whose current conviction is for violation of [Penal Code] section 220 may be sentenced under [Penal Code] section 667.6, subdivision (d) only if he suffered a prior conviction under section 220. (In re Rodney (1999) 73 Cal.App.4th 36, 40.)

Here, the trial court, relying on the fact that defendant committed his crimes against separate victims, sentenced defendant to two full and consecutive four-year terms, the middle term for a violation of Penal Code section 220. Defendant contends, and the Attorney General concedes, this fully consecutive sentencing was improper because the record does not reflect defendant had a prior conviction for violation of Penal Code section 220. Accordingly, it is necessary to remand for resentencing so that the trial court can exercise its discretion properly.

VIII

Request for Transcripts

Equal protection principles require that the government provide an indigent criminal defendant with a free reporter's transcript of prior proceedings if the transcript is needed for proper appellate review or for an effective defense. (Griffin v. Illinois (1956) 351 U.S. 12, 18-19 [100 L.Ed. 891]; Britt v. North Carolina (1971) 404 U.S. 226, 227-230 [30 L.Ed.2d 400] (Britt).) The policy behind this rule is to ensure that an indigent defendant receives the basic tools of an adequate defense or appeal, when those tools are available for a price to other [defendants]. (Britt, supra, at p. 227.) (People v. Markley (2006) 138 Cal.App.4th 230, 240.)

Defendant contends he was improperly deprived of the court record from the first case filed against him, which was later dismissed. Without a citation to the record, defendant asserts the trial court refused to answer a request for a settled statement. We reject defendants contention because he has failed to establish the trial court erred. While, as noted, defendant, as an indigent appellant, is entitled to a free transcript, he has not shown, in the record, that the trial court denied him this right. It is the appellants burden to demonstrate the existence of reversible error. [Citation.] [Citation.] As part of that burden, the appellant must identify each order that he asserts is erroneous, cite to the particular portion of the record wherein that ruling is contained, and identify what particular legal authorities show error with respect to each challenged order. [Citation.] (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1443.)

IX

Witness Encouragement

Defendant summarily contends the prosecutions investigator violated defendants Fifth and Fourteenth Amendment rights by motivat[ing] Debra P. This unsupported and unreasoned assertion fails. (See County of Orange v. Smith, supra, 132 Cal.App.4th at p. 1443.)

X

Double Jeopardy

Finally, defendant asserts the prosecution of the count in this case involving Debra P. after he had already been tried for that crime violated the double jeopardy clause. Defendant offers no authority or reasoning for this assertion and, therefore, it is without merit. (People v. Stanley (1995) 10 Cal.4th 764, 793 [failure to cite authority waives appellate review].) Furthermore, the assertion is based on the false premise that he was previously tried for his crime against Debra P. He was not.

DISPOSITION

The judgment of conviction is affirmed. The sentence is vacated and the matter remanded to the trial court with directions to resentence defendant.

NICHOLSON , Acting P.J.

We concur:

MORRISON , J.

HULL, J.

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