Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Super. Ct. No. 08CM7186 James T. LaPorte, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Levy, J.
INTRODUCTION
Carlos Miguel Iraheta and Juan Carlos Bravo are inmates at Corcoran state prison (prison) who are serving life sentences. On February 18, 2008, they attacked and beat another inmate. During the attack, Bravo stabbed the inmate. After joint jury trial, Bravo and Iraheta were convicted of maliciously assaulting an inmate with a deadly weapon or by any means of force likely to produce great bodily injury while serving a sentence of life imprisonment. (Pen. Code, § 4500.) They were found not guilty of assault with a deadly weapon or by any means of force likely to produce great bodily injury while imprisoned (count two). (§ 4501.) One prior strike and one prior serious felony enhancement allegation were alleged, both arising from a 2003 murder conviction. Iraheta admitted having suffered the prior conviction. He was sentenced to life imprisonment with parole eligibility at 18 years, plus five years, to be served consecutive to the term he was already serving.
Unless otherwise specified all statutory references are to the Penal Code.
Iraheta raises four appellate claims: (1) the trial court abused its discretion by denying his motion to excuse the jury panel; (2) there was insufficient proof of malice; (3) failure to instruct sua sponte on lesser included offenses was prejudicial error; and (4) the term imposed for the prior felony enhancement must be stricken. All of these claims are unpersuasive. Iraheta also contends there are three errors in the abstract of judgment (abstract). Respondent concedes this point and we accept the concession as properly made. We will affirm the judgment and remand for preparation of a corrected abstract.
FACTS
On February 18, 2008, correctional officer Armando Guerra was on duty at an elevated post inside the prison observing yard 4A4R. Guerra was familiar with the inmates who were assigned to this yard. About 17 or 18 inmates were in the yard. Around 9:48 a.m., Guerra “saw one inmate being attacked by two [inmates].” The two perpetrators approached the victim, Louis Gonzalez. The first perpetrator attacked the victim from behind and hit him on the right side of the head. The victim raised his hands and stepped to the side and back. The second perpetrator attacked the victim from the side. Both perpetrators delivered multiple blows with closed fists to the victim’s upper head and torso area. One of the perpetrators was holding a brown-colored object with a rounded shape.
Guerra ordered all the inmates in the yard assume a prone position on the ground. Everyone except the three inmates involved in the altercation lay face down on the ground. The two perpetrators continued to swing at the victim. Guerra ordered them to stop fighting three more times. They refused to comply. Guerra fired a nonlethal impact round at the second perpetrator. The three inmates assumed a prone position on the ground. Guerra recognized the perpetrators: Bravo was the first perpetrator and he held the brown object; Iraheta was the second perpetrator. The victim was removed from the yard. Bravo pushed himself up to a standing position. A brown inmate-manufactured, stabbing-type weapon with a rounded shape was lying on the ground where Bravo’s chest had been.
A correctional officer took custody of the weapon, the T-shirt and boxer shorts that Bravo was wearing at the time of the attack and a T-shirt that had been left on the yard. Both of the T-shirts appeared to have blood stains on them.
Sheryl Balbina is a licensed vocational nurse who was on duty at the prison when the attack occurred. She examined the victim and treated him for some cuts. The victim had been cut or stabbed under the right eye in the area of the lower lashes; there was swelling and bleeding under the eye and the eyeball was red. The victim was transported to the hospital for treatment. When he returned from the hospital, she gave him some narcotic medication. She also examined Bravo and Iraheto; neither of them had any observable injuries.
The exercise yard was monitored by a surveillance camera, which captured images of the attack (the surveillance video). The surveillance video was admitted at trial and shown to the jury.
On our own motion, we hereby augment the appellate record to include the surveillance video (People’s exhibit 8A).
Bravo called inmate Jeremy Perras as a defense witness. Perras testified he was having a conversation with Bravo on the yard when a commotion occurred. A group of people came toward them and they stepped aside. When a guard ordered them to get down, Bravo and he assumed a prone position next to each other. Perras did not see anyone fighting.
Iraheta did not call any defense witnesses.
DISCUSSION
Refusal to excuse the jury panel was not an abuse of discretion and did not infringe Iraheta’s federal constitutional right to an impartial jury.
A. Facts
At the outset of jury selection, the judge informed the jury panel of the charges and the estimated length of the trial. Then the judge asked, “[I]s there any member who is in the jury box who feels that he or she cannot participate for a trial that should be completed by Thursday? If so please raise your hand.” Some panel members raised their hands. The judge called on prospective juror No. 327 first. He/she said: “… I work in the Corcoran State Prison as a maintenance [worker], and I think my safety would be gravely jeopardized since they are also from Corcoran, and the way they might put out a hit on me or something, I don’t know.” The judge replied, “All right, thank you. Have a seat, please.” Then the judge called on another panel member. When the judge excused the panel for lunch it asked four panel members who expressed concerns about serving as jurors to remain in the courtroom.
The judge spoke with prospective juror No. 327 first. The judge said, “[Y]ou are indicating that you work in maintenance in Corcoran?” He/she replied, “Yes, sir. I walk the yard with all the inmates walking around, and I am a single parent --” The judge asked, “… I guess I am curious because we have correctional officers serve as jurors in many cases [in] which we have inmates who are being charged with offenses. So what would be the difference in your status?” He/she replied, “Sir, they are trained to deal with these people, you know, they have the -- you know what I mean, they are trained --” At this point, the judge ascertained from prospective juror No. 327 that he/she was employed as a painter “all over the prison” and had daily contact with inmates. The judge asked counsel if they had any questions. They replied in the negative. Then Bravo’s counsel stated that he would invite a stipulation to excuse this prospective juror. In response, the prosecutor asked the judge to excuse him/her. The judge agreed and excused him/her. After discussion with the other panel members, it excused two of them and ordered the third to return after lunch.
After all of the prospective jurors left the courtroom, Iraheta’s counsel motioned to disqualify the entire jury panel because it might have been tainted by prospective juror No. 327’s remark “that there might be a hit put out on him or something like that.” Bravo’s counsel joined in the motion. After argument, the motion was denied as follows:
“The court is going to admonish the jury to disregard the comments of the prospective juror regarding his general concerns about the safety as a maintenance worker in the institution. Especially in light of the fact that he obviously didn’t want to serve as a juror in this particular case. I think probably the jury picked that up fairly -- rather accurately.”
When the court convened after lunch recess, the judge admonished the jury panel as follows: “You are admonished to disregard the comments of a prospective juror which was made before lunch regarding his general concerns about his safety as a maintenance worker at the [prison].”
B. The trial court properly denied Iraheta’s motion to excuse the jury panel.
Iraheta claims his right to a fair and impartial jury was infringed by the denial of his motion to dismiss the jury panel. He argues the jury was so tainted by prospective juror No. 137’s remark that the court abused its discretion by refusing to dismiss the jury panel. We disagree.
“A criminal defendant has the constitutional right to have a fair and impartial jury determine guilt or innocence. [Citations.]” (People v. Martinez (1991) 228 Cal.App.3d 1456, 1459-1460 (Martinez).) When the right to a fair and impartial jury has been infringed, no inquiry concerning the sufficiency of evidence proving guilt is undertaken; the conviction must be set aside. (Id. at p. 1460.) The trial court is obligated to examine prospective jurors and counsel must be given an opportunity for reasonable examination in order to select an impartial jury. (Ibid.) The appellate court examines “the totality of the circumstances surrounding jury selection” to determine whether the trial court “permitted the jury panel to be exposed to views so biased and prejudiced that we must presume, absent more extensive admonition, the panel as a whole could not be fair and impartial.” (Id. at p. 1465.) “Just as a finder of fact is in a better position than the reviewing court to judge the credibility of a witness, the trial judge is in a better position to gauge the level of bias and prejudice created by juror comments.” (Id. at p. 1466.) Therefore, denial of a defendant’s motion to dismiss the jury panel because of group bias caused by a prospective juror’s statement is reviewed under the deferential abuse of discretion standard. (Id. at pp. 1466-1467; People v. Nguyen (1994) 23 Cal.App.4th 32, 41 (Nguyen).)
Respondent correctly points our attention to Nguyen, supra, 23 Cal.App.4th 32. There, a juror expressed a fear of retribution if he served as a juror. The prospective juror explained that he and the defendant are both Vietnamese and retaliation has “‘been in our culture.’” (Id. at p. 40.) Although the juror ultimately stated after further questioning by the court that he probably could serve as a fair juror, defendant’s counsel exercised a peremptory challenge to excuse him. Then defendant’s counsel motioned to dismiss the entire jury panel. The motion was denied and this decision was upheld on appeal. The appellate court reasoned that the prospective juror’s comments were not particularly inflammatory. Also, the prospective juror was excused from the panel. Therefore, any partiality shown by this prospective juror “was not so great as to affect the rest of the jury panel.” (Id. at p. 42.)
Just as in Nguyen, we find that any taint possibly arising from prospective juror No. 137’s comment that he feared retaliation was not so great that it could not be cured by dismissal of the prospective juror and admonishment to disregard this remark. The court excused prospective juror No. 137 early in the jury selection process. Additional questioning of this prospective juror took place outside the presence of all but three other prospective jurors, two of whom were excused. In light of these facts, we believe the admonition given by the trial court was sufficient to dispel any taint or prejudice that might possibly have been caused by prospective juror No. 137’s comment.
Having examined the totality of the circumstances, we uphold the trial court’s denial of the motion to dismiss the jury panel and conclude that Iraheta’s right to a fair and impartial jury was not infringed.
II. There is substantial evidence of malice.
Iraheta argues the people failed to adequately prove malice. We are not convinced.
To convict a person of violating section 2500, the People must prove all of the following elements beyond a reasonable doubt: (1) a person was assaulted; (2) the assault was committed with a deadly weapon or by means of force likely to produce great bodily injury; (3) the assault was committed by a prisoner serving a sentence of life imprisonment; and (4) the assault was committed with malice aforethought. (People v. Jeter (2005) 125 Cal.App.4th 1212, 1217.) “Malice aforethought as used in section 4500 has the same meaning as it has for murder convictions, requiring either an intent to kill or ‘knowledge of the danger to, and with conscious disregard for, human life.’ [Citations.]” (Id. at p. 1216.)
Respondent provided a definition of malice based on section 7 and People v. Silva (1953) 41 Cal.2d 778, 782 (Silva). This is incorrect. In People v. St. Martin (1970) 1 Cal.3d 524, 537, our Supreme Court determined that the definition of malice set forth in section 7 should not be used in a prosecution for violation of section 4500.
When assessing “a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft).) Under this standard, “an appellate court must draw all inferences in support of the verdict that reasonably can be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt [Citation.]” (People v. Estrella (1995) 31 Cal.App.4th 716, 724-725.) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ [Citation.]” (Kraft, supra, 23 Cal.4th at pp. 1053-1054.) “‘Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.’ [Citation.]” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
Appellant argues there is insufficient proof of malice because he did not personally use a deadly weapon and there is no proof that he was aware Bravo was armed or knew Bravo intended to attack the victim with a weapon. We are not convinced.
There is ample evidence proving Iraheta acted with malice aforethought. Evidence may be direct or circumstantial. The surveillance video and Guerra’s testimony demonstrated that Iraheta and Bravo jointly attacked the unsuspecting victim in a brutal fashion, with deadly intent. The surveillance video depicted the two perpetrators leaving a portion of the yard and together converging on the victim. This demonstrates a coordinated attack, in which the victim was outnumbered and especially vulnerable. Iraheta personally landed blows on the victim’s head and chest. Iraheta’s participation in the attack made it more difficult for the victim to escape or fight back. Guerra noticed a brown, rounded object in Bravo’s hand and an inmate-manufactured stabbing weapon was subsequently found on the yard where Bravo ultimately lay down. While there was no direct testimony proving that Iraheta had advance knowledge Bravo was armed, such a conclusion can reasonably be inferred from the entirety of the evidence. Iraheta took no action to disassociate himself from Bravo or halt the attack when Bravo stabbed or cut the victim. In fact, Iraheta ignored several orders by Guerra to stop fighting and only laid on the ground after Guerra fired a round at him. The victim was not fighting back, only trying to escape from the relentless attack by Bravo and Iraheta. Iraheta’s conduct during the attack adequately proves that he possessed the required mental state of malice aforethought.
Accordingly, Iraheta’s challenge to the sufficiency of the evidence fails.
The court did not have a sua sponte duty to instruct on lesser included offenses and the omission of such instructions was harmless.
Iraheta argues the court had a sua sponte obligation to instruct on the lesser included offenses of simple assault and assault with a deadly weapon. We are not convinced.
Instruction on a lesser included offense must be given sua sponte where “‘the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
“[¶] An instruction on a lesser included offense must be given only when the evidence warrants such an instruction. [Citation.] To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, ‘evidence from which a rational trier of fact could find beyond a reasonable doubt’ that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 174.)
“[I]f there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given. [Citation.]” (People v. Kraft, supra, 23 Cal.4th at p. 1063.)
In this case, we conclude the court did not have a sua sponte obligation to instruct on lesser included offenses because the evidence in this case proved that if Iraheta was guilty at all, it was of the charged offense and not a lesser crime. Iraheta did not call any defense witnesses. During closing arguments, counsel argued Iraheta had been misidentified and had not participated in the attack on the victim. Counsel did not argue that Iraheta lacked knowledge that Bravo was armed or contend that the blows he and Bravo inflicted were not likely to produce great bodily injury. If the jury believed Iraheta’s trial defense, it would have found Iraheta not guilty of any charge related to the attack because he had been misidentified and was not involved in the incident.
Iraheta’s claim that the jury could have found him guilty of simple assault or nonmalicious assault with a deadly weapon is not convincing. There was no direct evidence proving he knew Bravo was armed or that Bravo was going to use a weapon in the attack. The People were required to prove either use of a deadly weapon or force likely to produce great bodily injury. They were not required to prove the victim actually suffered great bodily injury. Iraheta fails to recognize the uncontradicted evidence proving that both perpetrators -- the one who was armed and the one who was not armed -- delivered multiple forceful blows to the victim’s chest and head. Even apart from Bravo’s use of a knife during this coordinated attack, the surveillance video depicts what was obviously a vicious attack in which both perpetrators maliciously intended to cause great bodily injury to the victim. The first perpetrator attacked the unsuspecting victim from behind and the second perpetrator joined in the attack from the victim’s side. The surveillance video depicts both perpetrators landing blows to vital areas of the victim’s body. Guerra identified the perpetrators and Bravo and Iraheta. Both perpetrators refused to halt the attack even after Guerra issued multiple orders to stop fighting and only stopped attacking the victim after Guerra fired a round at Iraheta. There is no basis in the evidence from which the jury could have concluded that Iraheta did not act maliciously or that he did not personally use force likely to produce great bodily injury.
Accordingly, we conclude a reasonable jury could only have concluded either that Iraheta was guilty of the charged offense or that he was an innocent prisoner who had been wrongly identified by Guerra as the second perpetrator. Therefore, the trial court did not have a sua sponte obligation to instruct on lesser included offenses.
In any event, the instructional omission was harmless. In a noncapital case, the failure of a trial court to instruct sua sponte on a lesser included offense is evaluated under the prejudice standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Breverman (1998) 19 Cal.4th 142, 176-178.) Under this standard, a conviction will be reversed only if it appears reasonably probable that the defendant would have obtained a more favorable outcome had the error had not occurred. (Id. at p. 178.) As explained above, the evidence overwhelmingly proved Iraheta and Bravo were guilty of maliciously attacking the victim with force likely to produce great bodily injury. The People produced overwhelming evidence that both Iraheta and Bravo delivered multiple blows to vital areas of the victim’s body. Malice was further shown by Iraheta’s refusal to comply with the guard’s orders to stop fighting until Guerra fired a round at him. It is not reasonably probable that the jury would have found Iraheta guilty of simple assault or assault with a deadly weapon if it had been instructed on these lesser offenses. Therefore, the instructional omission is harmless.
IV. The prior conviction was knowingly admitted for both special allegations.
1. Facts
While the jury was deliberating, defense counsel informed the court that Iraheta was going to admit the prior conviction. The following colloquy occurred:
“[COUNSEL]: Your Honor, I have explained to Mr. Iraheta his rights …. Mr. Iraheta at this point is not going to contest it. He is going to admit it, assuming that it is necessary.
“THE COURT: All right. And the Information alleges that Mr. Iraheta suffered a prior conviction specifically a [section] 187(a) out of Los Angeles County Superior Court on October the 2nd, 2003, Case YA053907. Ready to proceed, [counsel]?
“[COUNSEL]: Yes.
“THE COURT: All right. As I understand it Mr. Iraheta had previously suffered a conviction as a strike prior per [section] 667(a)(1) out of a [section] 187(a) conviction date was on October the 2nd, 2003, LA County Superior Court YA053907. Is that your understanding, Mr. Iraheta, that you suffered that conviction?
“THE DEFENDANT: Yes.”
The court secured a waiver of Iraheta’s constitutional rights to jury trial, proof beyond a reasonable doubt, confrontation of witnesses, presentation of evidence, and the right to silence.
The court asked Iraheta if he “understand[s] the nature of the allegations which were filed against you with reference to your prior convictions?” Iraheta replied, “Yes.” Iraheta also affirmed that he had sufficient time to discuss the allegations and possible defense with his attorney. Then the court asked Iraheta, “[Y]ou are admitting that you suffered that conviction?” Iraheta replied affirmatively. The court asked defense counsel if he agreed with Iraheta’s “waiver of rights and consent to his admission in this case and his prior conviction of the 187?” Counsel replied, “I join in that, yes.”
Then the court said, “Mr. Iraheta, the allegations as set forth in the enhancement on page 2 of the Information are that on or about … October 2nd, 2003 you suffered a conviction out of LA Superior Court [section] 187(a) conviction YA053907; how do you plead?” Iraheta replied, “Guilty.” The court asked, “Do you admit that you suffered that conviction?” Iraheta replied, “I admit that.” The court accepted the admission and found it was “knowingly, intelligently, and freely, and voluntarily made with the understanding of the nature and the consequences there of.”
Defense counsel stipulated that a factual basis for the admission was “set forth in the 969b packet.” The court examined the packet. Then it said, “The Court would accept the admission. Find it knowingly, intelligently, freely and voluntarily made. In this case it’s a single strike prior so the consequence would be doubling whatever term would be imposed?” The prosecutor replied, “Yes.” The court asked Iraheta’s counsel, “Is that your understanding as well, [defense counsel]?” Defense counsel replied affirmatively.
B. Iraheta knowingly admitted the 2003 murder conviction for all purposes.
Iraheta argues he only knowingly admitted the 2003 murder conviction for the purpose of doubling his sentence under the Three Strikes law and therefore the five-year term imposed pursuant to section 667, subdivision (a) must be stricken. We disagree.
The applicable principle of law is well-established:
“[¶] When a plea of guilty is entered by a defendant, he must be admonished about three constitutional rights: (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one’s accusers; in addition, the defendant must waive those rights knowingly and voluntarily. [Citations.] The same procedures must be employed for admission of prior convictions for sentencing purposes. [Citation.] In addition to admonition of these constitutional rights our Supreme Court has declared ‘as a judicially declared rule of criminal procedure’ that an accused is entitled to be advised: (1) of any habitual criminal consequences, (2) of the precise increase in term which might be imposed, and (3) of the effect on eligibility for parole. [Citation.] The failure to secure an express waiver of each enumerated right is, however, not reversible per se. [Citation.] The test is whether or not the record indicates that the admission was voluntary and intelligent ‘under the totality of the circumstances.’ [Citation.]” (People v. Witcher (1995) 41 Cal.App.4th 223, 226-227.)
Iraheta’s contention that he did not knowingly admit the 2003 murder conviction for purposes of the prior serious felony enhancement allegation is based on a selective reading of the record that ignores everything taking place prior to the court’s statement, “In this case it’s a single strike prior so the consequence would be doubling whatever term would be imposed[.]” When the entirety of the record is examined, it is abundantly clear that Iraheta knew that admitting the 2003 prior murder conviction would result in imposition of penalties for a prior strike and a prior felony conviction.
Iraheta was fully informed of both the strike allegation and the prior serious felony enhancement allegation. The information included allegations of both a prior strike and a prior serious felony. Iraheta was arraigned on the information and denied the allegations at the arraignment. Iraheta was represented and advised by counsel at all stages of the proceedings. Prior to accepting the admission, the court ascertained from Iraheta that he understood “the nature of the allegations which were filed against” him. The court also ascertained that Iraheta had sufficient time to discuss the special allegations and possible defense with his attorney. Furthermore, the probation officer’s sentencing recommendation included the five-year term for the prior serious felony enhancement in addition to the enhanced sentence arising from the prior strike. Iraheta did not object at sentencing to the imposition of the five-year term for the serious felony enhancement.
The court’s failure to specifically reference the penal consequence of the prior felony enhancement during the change of plea proceeding did not render appellant’s admission constitutionally invalid. (People v. Wrice (1995) 38 Cal.App.4th 767, 770.)
Having examined the totality of the circumstances, we conclude Iraheta knowingly and freely admitted the 2003 murder conviction for purposes of both the prior strike and the prior serious felony allegation.
Since we have not expressly found that Iraheta forfeited appellate review of this issue, it is unnecessary to address his perfunctory assertion that defense counsel was ineffective for failing to assert this point below.
V. An amended abstract must be prepared.
Appellant contends the abstract contains three errors. The People concede this point and we accept the concession as properly made. The abstract incorrectly lists the sentence imposed in 2003 in the portion of the document that is reserved for the sentence imposed in the current case. The references to the sentence imposed in 2003 and the fact that the sentence imposed in the current case is to be served consecutive to the sentence imposed in 2003 should be contained in a different portion of the abstract. Also, the abstract incorrectly contains references to fines and credits that were imposed in 2003. Those references should be deleted. Finally, the abstract indicates Iraheta was sentenced to 18-years-to-life imprisonment. The proper formulation of Iraheta’s sentence is life imprisonment with parole eligibility after 18 years plus a consecutive term of five years. (§§ 4500, 667, subds. (a)(1) & (b)-(i), 1170.12, subds. (a)-(d).) We will order the superior court to prepare an amended abstract correcting these errors and to transmit it to the appropriate authorities. (See, e.g., People v. Navarro (2008) 161 Cal.App.4th 1100, 1104, fn. 3.)
DISPOSITION
The judgment is affirmed. The matter is remanded to the superior court with directions to prepare an amended abstract of judgment and transmit it to the appropriate authorities.
WE CONCUR: Ardaiz, P.J., Dawson, J.