Filed 12/11/18 P. v. Woldmskel CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Reversed and remanded with directions.

Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

A

A jury found Patrick Woldmskel guilty of three counts of corporal injury to a spouse or roommate resulting in a traumatic condition (Pen. Code[1], § 273.5, subd. (a); counts 1, 3 & 9); four counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); counts 2, 4, 8 & 10); two counts of false imprisonment by means of violence, menace, fraud, or deceit (§§ 236, 237, subd. (a); counts 5 & 11); two counts of attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2); counts 12 & 13); and two misdemeanor counts of violating a protective order (§ 166, subd. (c)(1); counts 14 & 15).[2] As to counts 1 and 2, the jury found true allegations Woldmskel personally inflicted great bodily injury under circumstances involving domestic violence (§§ 1192.7, subd. (c)(8) & 12022.7, subd. (e)). Additionally, Woldmskel admitted having a prior prison commitment conviction (§ 667.5), a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior strike conviction (§ 667, subds. (b)–(i), 1170.12). The court sentenced Woldmskel to 29 years in state prison.

Woldmskel appeals, contending we must reverse his conviction in count 3 for corporal injury to a spouse or roommate because the court failed to give the jury a unanimity instruction. He also contends we must reverse his convictions in counts 1, 3, and 9 for corporal injury to a spouse or roommate resulting in a traumatic condition because the court refused to instruct the jury on the lesser included offense of misdemeanor battery. He further contends the court should have stayed execution of the sentences for his assault convictions in counts 4 and 10 and his false imprisonment convictions in counts 5 and 11 under section 654. Finally, he contends the court erred by failing to dismiss the punishment for the prior strike felony conviction finding under section 1385.

B

While this appeal was pending, the Legislature enacted sections 1001.35 and 1001.36, which took effect on June 27, 2018, and authorized pretrial diversion for defendants with mental disorders. The Legislature also enacted amendments to sections 667, subdivision (a), and 1385, subdivision (b), which take effect on January 1, 2019, and give the court the discretion to dismiss the punishment for a prior serious felony conviction. We requested the parties submit supplemental briefs addressing whether these statutes apply retroactively to this case and, if so, the appropriate disposition.

Woldmskel contends both sets of statutes apply retroactively. He further contends we should conditionally reverse and remand the matter to the court to allow the court an opportunity to exercise its discretion under them.

C

We conclude the court did not err by failing to give the jury a unanimity instruction for count 3 or by failing to instruct the jury on the lesser included offense of misdemeanor battery for counts 1, 3, and 9. In addition, the People concede and we agree the court should have stayed execution of the sentences for counts 4, 5, 10, and 11 under section 654. We further conclude Woldmskel failed to demonstrate the court abused its discretion by declining his invitation to dismiss the punishment for the prior strike conviction. Lastly, we conclude newly enacted sections 1001.35 and 1001.36 as well as newly amended sections 667, subdivision (b), and 1385, subdivision (b), apply retroactively in this case. Accordingly, we reverse the judgment to allow the court an opportunity to exercise its discretion under these statutes.

II

BACKGROUND

Counts 9–11

Woldmskel and the victim dated for about a year and a half. In July 2014, Woldmskel and the victim began arguing in front of a store. The victim started walking home. Woldmskel got into and back out of his car. He yelled at the victim and then pushed her in the face, causing her to fall back into some bushes. She tried to get up and walk away, but he kept pushing her down. He got back into his car, drove toward her, slammed on the brakes and stopped the car within a few inches of her, dragged her by her hair into the car, and drove them a few blocks home. He pulled the victim by her hair into the home and to their bedroom, where he punched her in the face, spit on her, put his hand on her neck and cut off her airway, and bit and twisted her wrist.

The victim had a knot on her forehead and red marks on her face, neck, and wrists, which lasted a few days. About a week after the attack, the victim sought treatment for her wrist because she could not hold anything in her hand. A doctor said her wrist was sprained and gave her a brace to wear. Her wrist was sore for about a week and a half.

Count 8

In September 2014, Woldmskel became upset after seeing the victim and her male friend hugging. Woldmskel punched the victim in the face, causing her head to hit against and damage a wall. Woldmskel also put his hand around the victim's neck and squeezed, preventing her from breathing. The victim sustained red marks on her neck and a little bump on her head.

Counts 3–5

In January 2015, while the victim and Woldmskel were in their bedroom and the victim was getting ready to go to class, Woldmskel suddenly "just flipped" and "got angry." He locked the bedroom door, lunged toward the victim, and started strangling her. She fell to the floor, causing her knee to pop out and then back in. She started screaming and he sat on top of her and tried to silence her by covering her mouth with his hand, hitting her in the face, and biting her forehead. He told her he would stop if she shut up, so she put her head underneath the bed and calmed herself. He let her up. She left the room and tried to leave the house through the front door, but he repeatedly blocked her by pushing her away. He also choked her, strangled her, and slammed her face into the arm of the couch, causing her to chip her tooth. As he strangled her, she could not breathe, panicked, and almost passed out.

After the incident, the victim walked with a limp and had excruciating pain in her knee. The victim sought treatment for her knee injury, which included an X-ray of her knee. She was diagnosed with edema, or swelling around the kneecap, and given a brace and crutches to use.

Counts 1–2

In July 2015, Woldmskel went to the home where the victim was staying to get his belongings from her. He became upset and they started arguing because the victim broke up with him. She asked him several times to leave the home. The woman who owned the home said something to him that angered him. He took a step toward the woman and the victim got between them, put her hands out to stop him, and continued asking him politely to leave, but he would not. Instead, he approached the victim and she sat down on the couch. She got back up and he started hitting himself and saying, "Hit me, hit me." He grabbed her hands, put them around his neck, and kept saying, "Hit me, hit me." She blanked out and hit him.

He then punched her in the eye, causing her to fall back onto the couch, and ran away. The force of his punch fractured the medial orbital wall of the victim's right eye. The punch also caused a laceration, which gushed blood and left a scar. The victim could not fully open her eye for about two weeks, and it was sensitive to light.[3]

Counts 12–15

A few days after the preceding incident, Woldmskel was arrested and a criminal protective order was issued directing him not to have any contact with the victim. Nonetheless, he called the victim several times from jail. In the calls, he initially told the victim to appear at the preliminary hearing, but say she did not remember what happened, and then walk out of court. Later, he told her not to go to court, so the district attorney's office would not be able to move forward with the case. He additionally told her to find another place to live, to change her phone number, and to make sure that the district attorney's office did not know where to locate her.

Woldmskel also called the person in whose home he and the victim lived when most of the incidents occurred. He told the person not to go to court and not to contact the district attorney's office.

III

DISCUSSION

A

During the jury instruction conference, defense counsel requested the court give the jury a unanimity instruction. The court determined the instruction was only necessary for counts 13 through 15. Woldmskel contends the court erred by failing to give the instruction for count 3 as well. We review an assertion of instructional error de novo. (People v. Lueth (2012) 206 Cal.App.4th 189, 195; People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)

"As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.] There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when ... the statute contemplates a continuous course of conduct or a series of acts over a period of time' [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 679; accord, People v. Williams (2013) 56 Cal.4th 630, 682; People v. Ervine (2009) 47 Cal.4th 745, 788 (Ervine).)

The continuous-course-of-conduct exception applies in this case because section 273.5 is "aimed at repetitious activity which culminates in prohibited conduct" and consequently contemplates a continuous course of conduct or a series of acts over a period of time. (People v. Thompson (1984) 160 Cal.App.3d 220, 225.) The exception also applies because the record shows the acts underlying count 3 formed part of one transaction with counts 4 and 5. They occurred in an uninterrupted series and were close in both time and location. In addition, Woldmskel's proffered defense to the various acts was the same (i.e., none of the acts resulted in the infliction of great bodily injury). Accordingly, we conclude the court was not required to give and did not err by failing to give the jury a unanimity instruction for this count. (Ervine, supra, 47 Cal.4th at p. 788; Thompson, at pp. 224–226.)

B

During discussions about whether the court should instruct the jury on any lesser included offenses, the court declined to instruct the jury on misdemeanor battery as a lesser included offense of corporal injury to a spouse or roommate resulting in a traumatic condition because the court found there was insufficient evidence to support the instruction. Woldmskel contends the court's determination was in error and requires the reversal of his convictions for counts 1, 3, and 9. We independently review whether a court improperly failed to instruct on a lesser included offense. (People v. Nelson (2016) 1 Cal.5th 513, 538.)

" 'A trial court has a sua sponte duty to "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. "The rule's purpose is ... to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence." [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only "[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of" the lesser offense.' " (People v. Landry (2016) 2 Cal.5th 52, 96.)

Misdemeanor battery is a lesser included offense of corporal injury to a spouse or roommate resulting in a traumatic condition. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.) The difference between the two offenses is that misdemeanor battery does not require the victim to have suffered actual injury. (Ibid.; see People v. Longoria (1995) 34 Cal.App.4th 12, 16 [simple battery does not require the force used to have caused bodily harm or pain or to have left a mark].) Therefore, the court did not have to instruct the jury on misdemeanor battery unless there was substantial evidence Woldmskel's acts against the victim as charged in counts 1, 3, and 9 did not result in a traumatic condition.

A " 'traumatic condition' means a condition of the body, such as a wound, or external or internal injury, including but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by physical force." (§ 273.5, subd. (d).) Here, the evidence for count 1 shows Woldmskel's acts caused the victim to sustain two black eyes, a laceration on her face, and a fracture to one of her orbital bones. The evidence for count 3 shows Woldmskel's acts included strangulation and caused the victim to sustain a chipped tooth and a swollen knee. The evidence for count 9 shows Woldmskel's acts caused the victim to sustain a sprained wrist and red marks on her face, neck, and wrist. The existence of the victim's injuries was corroborated by photographs as well as by the testimony of health care professionals and other witnesses. Although some of the victim's injuries were more serious than others, even a minor injury, including a bruise, constitutes a traumatic condition. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085; People v. Silva (1994) 27 Cal.App.4th 1160, 1166.) As there was not substantial evidence to support the absence of an injury resulting in a traumatic condition, the court did not err by failing to instruct the jury on misdemeanor battery.

C

Woldmskel next contends the court erred under section 654 by failing to stay the

punishment for his convictions in count 4 for assault and count 5 for false imprisonment because they were based on the same objective and intent as his conviction in count 3 for corporal injury to a spouse or roommate resulting in a traumatic condition. He makes the identical argument for count 10 for assault, count 11 for false imprisonment, and count 9 for corporal injury to a spouse or roommate resulting in a traumatic condition.

Section 654 provides in part: "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." (§ 654, subd. (a).) "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. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment. [Citation.] The 'act' necessary to invoke section 654 need not be an act in the ordinary sense of a separate, identifiable, physical incident, but may instead be a 'course of conduct' or series of acts violating more than one statute and comprising an indivisible transaction punishable under more than one statute.

"The divisibility of a course of conduct depends upon the intent and objective of the defendant. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple. Each case must be determined on its own facts. [Citations.] The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to support them. [Citations.]" (People v. Liu (1996) 46 Cal.App.4th 1119, 1134–1135, fn. omitted.)

Here, the People concede there is not substantial evidence Woldmskel harbored separate criminal intents for the corporal injury, assault, and false imprisonment charges in counts 3 through 5 or in counts 9 through 11. To the contrary, the prosecutor argued below that the acts underlying counts 3 through 5 and the acts underlying counts 9 through 11 were part of a continuous course of conduct. Accordingly, the court erred in imposing concurrent terms for counts 4, 5, 10, and 11, rather than staying the punishment for these counts. (People v. Jones (2012) 54 Cal.4th 350, 353 [if § 654 applies, the imposition of concurrent sentences is improper; the court must sentence the defendant for each count and stay execution of the sentences to which § 654 applies].)

D

1

Woldmskel filed a motion inviting the court to exercise its discretion under section 1385 to dismiss the punishment for his prior strike conviction. (People v. Superior Court (Romero) 13 Cal.4th 497, 504 (Romero).) Woldmskel argued dismissing the punishment was appropriate primarily because the underlying offense occurred more than a decade earlier, when Woldmskel was only 18 years old and his brain was not yet fully developed, and because of his history of significant mental health challenges, which were being treated.

The court reviewed the factors it had to consider to dismiss the punishment for a prior strike conviction. The court also reviewed Woldmskel's current and past criminal conduct as well as his mental health history, which the court found collectively showed Woldmskel represented a significant danger to others. After considering the parties' papers and arguments, the court denied the motion because the court could not discern any reasonable basis for finding the interest of justice would be served by dismissing the strike.

2

Woldmskel contends the court erred by failing to dismiss the punishment for his prior strike conviction because the record manifestly supported the dismissal. More particularly, he contends the remoteness of the conviction, his young age when he committed the offense, and his subsequent offenses did not suggest he was the type of recidivist who fell within the intended scope of the Three Strikes law.

A court has the discretion under section 1385 to dismiss the punishment for a prior strike conviction in the furtherance of justice. (People v. Williams (1998) 17 Cal.4th 148, 158.) However, the court's discretion is limited, and the court must exercise its discretion in strict compliance with section 1385. (Romero, supra, 13 Cal.4th at p. 530.) Specifically, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, at p. 161.)

We review a court's decision not to dismiss the punishment for a prior strike conviction for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371, 374 (Carmony).) As we presume a sentence conforming to the Three Strikes law is rational and proper, a court's decision not to dismiss the punishment for a prior strike conviction will only be an abuse of discretion in limited circumstances, such as where the court was not aware of its discretion, the court considered impermissible factors, or a sentence under the Three Strikes law would, as a matter of law, produce an arbitrary, capricious, or patently absurd result under the specific facts of the case. (Id. at p. 378.)

The party attacking the court's decision has the burden to clearly show the decision was irrational or arbitrary. Absent this showing, we presume the court acted to achieve legitimate sentencing objectives and will not reverse its decision. (Carmony, supra, 33 Cal.4th at pp. 376–377.)

Woldmskel argues the court erred in its decision because it should have considered his mental health history more mitigating and his criminal history less serious than the court did. However, the mitigating effect of Woldmskel's mental health issues and the seriousness of his current and former crimes are points upon which reasonable people could disagree and, consequently, do not by themselves provide a basis for reversing the court's decision. (Carmony, supra, 33 Cal.4th at p. 377.)

Moreover, the record shows the court carefully considered both points, but determined public safety was the overriding concern. In the court's view, Woldmskel's history of continuing serious assaultive conduct made him very dangerous. In addition, the mental health evidence supplied by Woldmskel did not provide a good prognosis for his "significant, major" mental health issues and, absent another solution, left a future commitment to a state hospital under mentally disordered offender proceedings the most likely means of addressing the issues should he remain dangerous after his prison commitment. On this record, we cannot conclude the court decision was irrational or arbitrary.

E

1

Sections 1001.35 and 1001.36, which took effect on June 27, 2018, authorize pretrial diversion for defendants with mental disorders. " '[P]retrial diversion' means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment ...." (§ 1001.36, subd. (c).)

A court may grant pretrial diversion under section 1001.36 if the court finds: (1) the defendant suffers from an identified mental disorder; (2) the mental disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms will respond to treatment; (4) the defendant consents to diversion and the defendant waives the defendant's speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if the defendant is treated in the community. (§ 1001.36, subd. (b).)

If the court grants pretrial diversion, "[t]he defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources" for "no longer than two years." (§ 1001.36, subds. (c)(1)(B) & (c)(3).) If the defendant performs "satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion." (§ 1001.36, subd. (e).)

Woldmskel contends these statutes apply retroactively to this case because the statutes have an ameliorative effect on punishment. The People contend the new statutes do not apply retroactively because the Legislature did not intend them to apply retroactively.[4] We agree with Woldmskel.

2

As a canon of statutory interpretation, we generally presume laws apply prospectively rather than retroactively. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).) However, the Legislature may explicitly or implicitly enact laws that apply retroactively. (Ibid.) To determine whether a law applies retroactively, we must determine the Legislature's intent. (Ibid.)

" 'When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.' " (Lara, supra, 4 Cal.5th at p. 307, quoting In re Estrada (1965) 63 Cal.2d 740, 745.) " 'The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' [Citations.]" (Lara, at p. 308.)

The Estrada rule applies to section 1001.36 because section 1001.36 lessens punishment by giving defendants the possibility of diversion and then dismissal of criminal charges. (People v. Frahs (2018) 27 Cal.App.5th 784, 791 (Frahs).) In addition, applying section 1001.36 retroactively is consistent with the statute's purpose, which is to promote "[i]ncreased diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety." (§ 1001.35, subd. (a).)

The statute's definition of pretrial diversion, which indicates the statute applies at any point in a prosecution from accusation to adjudication (§ 1001.36, subd. (c)), does not compel a different conclusion. "The fact that mental health diversion is available only up until the time that a defendant's case is 'adjudicated' is simply how this particular diversion program is ordinarily designed to operate. Indeed, the fact that a juvenile transfer hearing under Proposition 57 ordinarily occurs prior to the attachment of jeopardy, did not prevent the Supreme Court in Lara, supra, 4 Cal.5th 299, from finding that such a hearing must be made available to all defendants whose convictions are not yet final on appeal." (Frahs, supra, 27 Cal.App.5th at p. 791.)

Furthermore, the California Supreme Court decided Lara before the Legislature passed section 1001.36 and the Legislature is deemed to have been aware of the decision. (See People v. Overstreet (1986) 42 Cal.3d 891, 897.) Had the Legislature intended for the courts to treat section 1001.36 in a different manner, we would expect the Legislature to have expressed this intent clearly, not subtly. (See In re Pedro T. (1994) 8 Cal.4th 1041, 1049 [to counter the Estrada rule, the Legislature must "demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it"].) Consequently, we conclude section 1001.36 applies retroactively to this case.

F

While this case was pending on appeal, the Legislature also enacted amendments to sections 667, subdivision (a), and 1385, subdivision (b), which take effect on January 1, 2019, and will give the court the discretion to dismiss the punishment for a prior serious felony conviction. The People concede the amendments will apply retroactively to this case if the case is not final before January 1, 2019. (Lara, supra, 4 Cal.5th at pp. 307–308 & fn. 5; People v. Francis (1969) 71 Cal.2d. 66, 75–76; People v. Garcia (2018) 28 Cal.App.5th 961, 973.) However, the People contend we need not remand the case for resentencing because doing so would be futile.

When, as here, a court is unaware it had the discretion to reduce a sentence, "[r]emand is required unless the record reveals a clear indication that the [court] would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.]" (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.) In this case, the record does not contain such a clear indication. Although the court imposed a substantial sentence on Woldmskel, it did not express any intent to impose the maximum sentence. Indeed, it imposed midterm sentences and ran several terms concurrently. Accordingly, nothing in the record precludes the possibility the court might choose to exercise its newly authorized discretion to dismiss the punishment for the serious felony prior conviction. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 427–428.)

IV

DISPOSITION

The judgment is reversed. The cause is remanded to the superior court with directions to conduct a diversion eligibility hearing under section 1001.36. If the court determines Woldmskel qualifies for diversion under section 1001.36, then the court may grant diversion. If Woldmskel successfully completes diversion, then the court shall dismiss the charges.

However, if the court determines Woldmskel is ineligible for diversion, or Woldmskel does not successfully complete diversion, then the court shall reinstate his convictions. The court shall also conduct a new sentencing hearing to consider whether to exercise its newly authorized discretion under amended sections 667, subdivision (a), and 1385, subdivision (b), to dismiss the punishment for the prior serious felony conviction. In addition, the court shall stay execution of the sentences for counts 4, 5, 10, and 11 under section 654. The court shall then prepare an amended abstract of

judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

AARON, J.