Opinion
E070255
10-21-2019
THE PEOPLE, Plaintiff and Respondent, v. DAVID GOODMAN, Defendant and Appellant.
Patricia A. Scott, 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, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1405656) OPINION APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Affirmed in part; reversed in part with directions. Patricia A. Scott, 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, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
When defendant and appellant David Goodman was 21 years old, he committed various sex offenses upon four children. A jury convicted him of four counts of committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a), counts 1, 4, 5, & 8), three counts of oral copulation or sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b), counts 2, 6, & 7), one count of forcible lewd act upon a child under the age of 14 years (§ 288, subd. (b)(1), count 3), one count of distributing or showing child or youth pornography to a minor (§ 288.2, subd. (a)(1), count 9), and one count of possession of child or youth pornography (§ 311.11, subd. (a), count 10). The jury also found that defendant committed counts 1 through 8 against more than one victim for the purposes of the one strike law. (§ 667.61, subds. (b), (e)(4).) He was sentenced to prison for 120 years to life, plus five years eight months.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends his sentence of 120 years to life constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution; there is insufficient evidence of his ability to pay specific fines, fees, and assessments; and the section 667.61 "enhancements" on counts 2, 6, and 7 must be stricken. The People concede the trial court's application of section 667.61 as to counts 2, 6, and 7 was in error, and the imposed but stayed sentences must be stricken; however, they dispute defendant's other claims.
Section 667.61 is "an alternative, harsher sentencing scheme for those to whom it applies, not an enhancement." (People v. Fuller (2006) 135 Cal.App.4th 1336, 1343.)
We conclude defendant is not entitled to any relief on his cruel and unusual punishment claim; there is sufficient evidence of his ability to pay the challenged fines, fees, and assessments; and the application of section 667.61 to counts 2, 6, and 7 constitutes an unauthorized sentence. We remand with directions to (1) vacate the jury's true findings on the multiple victim allegations (§ 667.61, subds. (b), (e)(4)) in counts 2, 6, and 7 and dismiss those allegations, (2) strike the sentences—imposed but stayed—on the same counts, and (3) amend the minute order and abstract of judgment to reflect these changes. Otherwise, we affirm.
I. PROCEDURAL BACKGROUND AND FACTS
Only an abbreviated version of the facts is required to consider defendant's claims. In the summer of 2014, defendant molested 11-year-old B. at church choir practice. In December 2014, defendant sexually abused six-year-old C., nine-year-old L., and five-year-old P., and showed them child pornography. Defendant was born in February 1993 and, thus, he was two months shy of his 22nd birthday when he assaulted C., L., and P. After the police arrested him, he admitted to possessing child pornography on his computer and deleting videos from his cell phone depicting boys and men engaged in sex.
From jail, defendant wrote a letter to a friend in which he repeatedly referenced his sexual interest in young boys, including "anyone from about 6 to 12/13 . . . and, of course, any boys that are chubby, like diapers, are uncut, and love getting fucked or fingered or like peeing and drinking pee. (It's HEAVEN.)" Defendant continued, "[C.] peed in my mouth once and I loved it. I miss him asking me to suck him. I really liked it, too."
II. DISCUSSION
A. Defendant's Sentence Does Not Violate Federal and State Constitutional Guaranties Against Cruel and Unusual Punishment.
The trial court sentenced defendant to eight consecutive terms of 15 years to life (a 120-year-to-life sentence) as a multiple victim offender (§ 667.61, subds. (b), (e)(4)); seven of the underlying offenses were committed on the same evening in December 2014. He contends his sentence, which he describes as being "tantamount to a sentence of life without parole" (LWOP), constitutes cruel and unusual punishment in light of section 3051 and evolving case law. He cites to the following cases: Roper v. Simmons (2005) 543 U.S. 551, 578 (Roper)—the Eighth Amendment's prohibition on cruel and unusual punishment prohibits imposition of the death penalty on juveniles; (2) Graham v. Florida (2010) 560 U.S. 48, 74-75 (Graham)—LWOP on juveniles who commit nonhomicide offenses; (3) Miller v. Alabama (2012) 567 U.S. 460, 471 (Miller)—mandatory LWOP on juveniles; and (4) People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero)—de facto LWOP on juvenile nonhomicide offenders. Alternatively, he argues his sentence is unconstitutionally cruel and unusual because it is grossly disproportionate considering his age and other individual factors.
Although defendant forfeited the issue by failing to raise it in the trial court, in the interest of judicial economy, and because of the importance of the issue, we will exercise our discretion and address it on the merits. (See People v. Russell (2010) 187 Cal.App.4th 981, 993 [addressing claim that sentence was cruel and unusual punishment despite forfeiture "'in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim'"].) As we explain, defendant's sentence is not cruel and unusual punishment.
1. Legal standard.
The Eighth Amendment of the United States Constitution prohibits "cruel and unusual punishments." (U.S. Const., 8th Amend.) Similarly, the California Constitution prohibits "[c]ruel or unusual punishment." (Cal. Const., art. I, § 17.) "Although articulated slightly differently, both standards prohibit punishment that is 'grossly disproportionate' to the crime or the individual culpability of the defendant." (People v. Mendez (2010) 188 Cal.App.4th 47, 64.) "Under both standards, the court examines the nature of the offense and the defendant, the punishment for more serious offenses within the jurisdiction, and the punishment for similar offenses in other jurisdictions." (Ibid.) "Any one of these three factors can be sufficient to demonstrate that a particular punishment is cruel and unusual." (Id. at pp. 64-65.)
Outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare and require an extreme case. (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390.) "The defendant must show the sentence is '"out of all proportion to the offense"' and that it offends 'fundamental notions of human dignity.'" (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) A defendant thus "has a 'considerable burden' to show a punishment is cruel and unusual." (People v. Meneses (2011) 193 Cal.App.4th 1087, 1092.)
"Whether a punishment is cruel and/or unusual is a question of law subject to our independent review, but underlying disputed facts must be viewed in the light most favorable to the judgment." (People v. Palafox (2014) 231 Cal.App.4th 68, 82.)
2. Analysis.
Relying on section 3051, and the decisions in Roper, Graham, Miller, and Caballero, defendant contends his sentence of "125 years and eight months to life, de facto LWOP, cannot be applied constitutionally to those such as [himself] who are 21 years of age or younger at the time of the offense." We disagree.
In response to Graham, Miller, and Caballero, the Legislature enacted Senate Bill No. 260 in 2013 (2013-2014 Reg. Sess.) to implement the limitations on juvenile sentencing articulated in these cases. (People v. Franklin (2016) 63 Cal.4th 261, 276-277.) "In adopting Senate Bill No. 260, which added [Penal Code] section 3051 [(Stats. 2013, ch. 312, § 1)], . . . the Legislature explained that 'youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society.'" (In re Jenson (2018) 24 Cal.App.5th 266, 276.) "[S]ection 3051 now provides that an offender who committed a 'controlling offense' under the age of 26 is entitled to a 'youth offender parole hearing' during his 15th year of incarceration if he received a determinate sentence; during his 20th year of incarceration if he received a life term of less than 25 years to life; and during his 25th year of incarceration if he received a term of 25 years to life." (Id. at p. 277.) However, section 3051 does not allow defendant a youth offender parole hearing: "This section shall not apply to cases in which sentencing occurs pursuant to . . . Section 667.61. . . ." (§ 3051, subd. (h).)
In addition to being ineligible for a youth offender parole hearing, because defendant was not a juvenile at the time of the offenses, the rationale of Roper, Graham, Miller, and Caballero is not applicable. The California Supreme Court acknowledged that the United States Supreme Court has drawn a line at the age of 18 for its "Eighth Amendment jurisprudence." (People v. Gutierrez (2014) 58 Cal.4th 1354, 1380.) We are bound by this decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, the law is well-established that the Eighth Amendment does not prohibit an LWOP sentence for crimes committed when a defendant is older than 18 years of age. (E.g., People v. Edwards (2019) 34 Cal.App.5th 183, 186, 190-192 [rejecting argument that 19-year-old defendants sentenced to 95 and 129 years to life was cruel and unusual or violated equal protection clause]; People v. Perez (2016) 3 Cal.App.5th 612, 617-618 [rejecting similar argument from defendant who was 20 years old at the time of his crime and sentenced to 86 years to life]; People v. Abundio (2013) 221 Cal.App.4th 1211, 1220-1221 [rejecting similar argument from defendant who was 18 years old at the time of the crime]; see People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 [rejecting similar argument from defendant who was 18 years and five months old].) We follow the reasoning in these cases and conclude the imposition of the 120-year-to-life sentence in this case was not categorically cruel and unusual punishment.
Alternatively, defendant asserts his sentence is grossly disproportionate to his crimes considering his age and other individual circumstances. We disagree. Defendant was convicted of eight felonies involving sex crimes that he committed as an adult against four children, aged five to 11. His sentence was controlled by section 667.61, which imposes harsher sentences on adult sex offenders who commit specified substantive sex offenses against multiple victims. (§ 667.61, subds. (b), (e)(4); see People v. Andrade (2015) 238 Cal.App.4th 1274, 1306 [multiple sex offenses against multiple victims deserve more severe punishment because of the predatory nature of the perpetrator].) "'There exists a strong public policy to protect children of tender years.' [Citation.] Along a spectrum ranging from murder, mayhem, and torture on one end to petty theft on the other, 'lewd conduct on a child may not be the most grave of all offenses, but its seriousness is considerable.'" (People v. Baker (2018) 20 Cal.App.5th 711, 724-725 [indeterminate 15-year-to-life sentence is not cruel and/or unusual as a matter of law for three counts of lewd acts (including one count of oral copulation) against a six-year-old child]; see People v. Christensen (2014) 229 Cal.App.4th 781, 806-807 [upholding a 27-year-to-life sentence for five counts of lewd acts against three elementary school boys in a daycare].)
Comparing his sentence to someone convicted of first and second degree murder, defendant asserts his sentence is unconstitutionally disproportionate. However, defendant was not convicted of one, but rather eight felonies. "[T]he commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies." (People v. Cooper (1996) 43 Cal.App.4th 815, 826.) Moreover, defendant's indeterminate sentence under section 667.61, subdivisions (b) and (e)(4), represents a cumulative punishment resulting from the commission of numerous offenses on multiple victims. The fact that it is mandatory "merely reflects the Legislature's zero tolerance toward the commission of sexual offenses against particularly vulnerable victims. It does not, however, render a defendant's sentence excessive as a matter of law in every case." (People v. Alvarado (2001) 87 Cal.App.4th 178, 200-201 [15 years to life for forcible rape during a burglary pursuant to § 667.61].)
In short, defendant has failed to establish that his indeterminate sentence of 120 years to life is so disproportionate to his crimes that it shocks the conscience or offends fundamental notions of human dignity.
B. Imposition of Fines, Fees, and Assessments.
Defendant contends the trial court failed to conduct a hearing on his ability to pay attorney fees (Pen. Code, § 987.8) and the cost of the presentence investigation and report (Pen. Code, § 1203.1b), and there is insufficient evidence to support a finding that he had the ability to pay. In supplemental briefing, he asserts that under the reasoning in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168 (Dueñas), the imposition of the court facilities assessment (Gov. Code, § 70373), court operations assessment (Pen. Code, § 1465.8), and $300 restitution fine (Pen. Code, § 1202.4) without a determination that he has the ability to pay violated his right to due process. The People contend defendant forfeited these issues by failing to object. Alternatively, they assert the record contains sufficient evidence of his ability to pay. We agree with the People.
The trial court never imposed a $300 restitution fine. (§ 1202.4, subd. (b).) The minute order and abstract of judgment incorrectly state the court imposed a restitution fine in the amount of $300 (§ 1202.4, subd. (b)), in addition to the total amount of $5,103. Under the circumstances, when the minute order differs from the court's oral pronouncement as to judgment and sentence, the oral pronouncement takes precedence over the minute order. (People v. Hartley (2016) 248 Cal.App.4th 620, 637.)
1. Further background information.
According to the probation officer's report, defendant worked at a theme park earning $9.70 an hour for two months prior to his arrest. He has no spouse, no children, no assets, and no debts. He has a 12th grade education and is in good health. The report recommended the trial court find that defendant does have the ability to pay appointed counsel fees of $750 (Pen. Code, § 987.8) and the cost of presentence investigation and report of $727 (Pen. Code, § 1203.1b). The report further recommended the court order defendant to pay a $300 court facilities assessment (Gov. Code, § 70373), a $400 court operations assessment (Pen. Code, § 1465.8), and victim restitution in the total amount of $5,103 (Pen. Code, § 1202.4). At the sentencing hearing, the court ordered defendant to pay the recommended amounts, with no objection from defense counsel. The court did not comment on defendant's ability to pay.
2. Applicable Law.
Under section 987.7, "the court may, after giving the defendant notice and a hearing, make a determination of his present ability to pay all or a portion of the cost of the legal assistance provided him." (People v. Flores (2003) 30 Cal.4th 1059, 1061.) "'Ability to pay' means the overall capability of the defendant to reimburse" all or a portion of the defense costs. (§ 987.8, subd. (g)(2).) In making this finding, the trial court must consider a defendant's financial position at the time of the hearing, his or her "reasonably discernible" financial position over the next six months, including the likelihood of employment during that time, and "[a]ny other factor or factors that may bear upon the defendant's financial capability to reimburse the county." (§ 987.8, subd. (g)(2)(A)-(D).) "In calculating ability to pay, 'the court [must] consider what resources the defendant has available and which of those resources can support the required payment,' including both the defendant's likely income and his or her assets." (People v. Verduzco (2012) 210 Cal.App.4th 1406, 1421.)
Section 1203.1b defines "ability to pay" somewhat differently from section 987.8. The statute provides that "'ability to pay' means the overall capability of the defendant to reimburse the costs, or a portion of the costs," and requires the trial court to consider all relevant factors, including (1) the defendant's "[p]resent financial position"; (2) the defendant's "[r]easonably discernible future financial position" limited to the one-year period from the date of the hearing; (3) the "[l]ikelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing"; and (4) "[a]ny other factor or factors that may bear upon the defendant's financial capability to reimburse the county." (§ 1203.1b, subd. (e)(1)-(4).) Unlike section 987.8, there is no presumption that a defendant sentenced to prison does not have a future ability to pay for probation services. (Compare § 1203.1b, subd. (e)(2) with § 987.8, subd. (g)(2)(B).) Additionally, the trial court may consider a one-year period, rather than the more limited six-month period in section 987.8 (§ 1203.1b, subd. (e)(2)), and an ability to pay during the one-year period does not necessarily require existing employment or tangible assets. Rather, "a determination of ability to pay may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment . . . ." (People v. Staley (1992) 10 Cal.App.4th 782, 783 [interpreting analogous fee statute].)
In determining the ability to pay issue, the trial court's finding may be express or implied, and must be supported by substantial evidence. (See People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398, disapproved on other grounds in People v. McCullough (2013) 56 Cal.4th 589, 599, and further disapproved in People v. Trujillo (2015) 60 Cal.4th 850, 858, fn. 5 (Trujillo); see also People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
Government Code section 70373 and Penal Code section 1465.8 mandate the imposition of court facilities and court operations assessments on every criminal conviction in the amounts of $30 and $40, respectively. (Gov. Code, § 70373, subd. (a)(1); Pen. Code, § 1465.8, subd. (a)(1); People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328 [discussing Pen. Code, § 1465.8].) Both of these fee generating statutes are silent as to the consideration of a defendant's ability to pay the assessments imposed. (Dueñas, supra, 30 Cal.App.5th at p. 1166.)
3. Analysis.
Defendant had the statutory right to request the trial court to consider his ability to pay in setting the fees and fines (§§ 987.8, subd (e), 1203.1b, subds. (a), (b)), but he did not do so. His silence is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 (Aguilar) [applying the forfeiture rule to challenges to probation related costs and an order for reimbursement of fees paid to appointed trial counsel]; Trujillo, supra, 60 Cal.4th at pp. 853-854 [applying the forfeiture rule to an unpreserved claim regarding probation related fees and defendant's inability to pay them]; People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant's claim that the trial court erred by failing to consider ability to pay a restitution fine is forfeited by the failure to object].) The Supreme Court reasoned that requiring a defendant to contemporaneously object to a fee order is appropriate because it "advance[s] the goals of proper development of the record and judicial economy," particularly "[g]iven that imposition of a fee is of much less moment than imposition of sentence," which also requires an objection in the trial court to be challenged on appeal. (Trujillo, at p. 857.) Defendant acknowledges the Supreme Court's decision in Aguilar. Thus, under the facts of this case, defendant forfeited any ability to pay determination by failing to object.
Notwithstanding the above, recent case law has held the imposition of the court facilities and court operations assessments (Gov. Code § 70373, Pen. Code, § 1465.8) without first ascertaining an indigent defendant's present ability to pay violates state and federal due process guarantees. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) "The defendant in Dueñas was a probationer who suffered from cerebral palsy, was indigent, homeless, and the mother of young children. The court agreed to, and held, a separate inability-to-pay hearing as requested by the defendant." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1031 (Gutierrez).) Since Dueñas, there has developed a split as to whether a defendant whose sentencing preceded Dueñas forfeits a challenge to the imposition of fees and fines based on inability to pay when the defendant failed to object.
This court has addressed the claim of Dueñas error and concluded a defendant who has not objected to the imposition of a restitution fine and the court security fee has not forfeited the issue on appeal. (People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034 (Jones).) We also concluded a Dueñas error may be harmless if the record shows the defendant will be able to earn the total amount imposed during his imprisonment. (Jones, at pp. 1034-1035 [defendant who was sentenced to state prison for a term of six years—with a presentence custody and conduct credit of 332 days—would earn sufficient prison wages to pay his fines and assessments of $370].)
Here, we find any Dueñas error harmless based on the record before this court. (Jones, supra, 36 Cal.App.5th at p. 1035.) We do not accept defendant's contention that "there is simply no evidence to support the trial court's implicit finding that [he] has the ability to pay the [fines and fees imposed] or that he will have the ability to pay [them] in a one-year period." Defendant was sentenced to a term of 125 years to life. The trial court is presumed to know the law (People v. Thomas (2011) 52 Cal.4th 336, 361), which includes the requirement that "every able-bodied prisoner imprisoned in any state prison" must perform labor for compensation. (§ 2700.) The record reflects that defendant, a young man with no disabilities, has the ability to earn wages as a state prisoner. It was therefore proper for the court to consider these wages and find, albeit implicitly, that defendant can afford to pay the ordered fines and fees through his prison wages. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider ability to earn prison wages in determining ability to pay].) "Wages in California prisons currently range from $12 to $56 a month. [Citations.] And half of any wages earned (along with half of any deposits made into [defendant's] trust account) are deducted to pay any outstanding restitution fine." (Jones, at p. 1035.) In the absence of some indication that defendant has a disability precluding him from performing any type of labor in prison, it must be presumed that he is capable of earning prison wages. (See People v. Gentry (1994) 28 Cal.App.4th 1374, 1377, fn. 6.) Also, there is no evidence that defendant had other financial obligations that would interfere with his ability to pay the fines and fees.
Moreover, we note that after the initial determination of a defendant's ability to pay, section 1203.1b authorizes a defendant who experiences a change of circumstances to petition for a review of his ability to pay. (§ 1203.1b, subd (f).) If defendant makes a full effort to obtain employment in prison and his prison wages are insufficient to pay the fines and fees imposed by the court, he may raise this issue at that time.
C. Section 667.61 Does Not Apply to Counts 2, 6, and 7.
Defendant contends, and the People concede, the trial court's application of section 667.61 as to counts 2, 6, and 7 amounted to a legally unauthorized sentence that may and should be corrected. We agree.
1. Further background information.
Defendant was charged and convicted in counts 2, 6, and 7 of violating section 288.7, subdivision (b), and the jury found the multiple victim allegations true as to those counts. (§ 667.61, subd. (e)(4).) At sentencing, the trial court noted the multiple victim findings "don't really affect the sentence on Count 7, Count 6, and Count 2. So I think I just stay those for now. I don't think I can strike them, but I think I just stay them." The court continued that the one strike law "is just an alternative sentencing scheme, but since [section] 288.7[, subdivision] (b) carries 15 to life I don't think it adds anything. So I don't think I can impose that. We'll just stay that." Thus, the trial court imposed but stayed the section 667.61 sentences for counts 2, 6, and 7.
2. Analysis.
The one strike law provides for a sentence of either 15 years to life or 25 years to life for the commission of certain specified sex offenses under specified circumstances, including committing a specified offense against multiple victims. (§ 667.61, subds. (a), (b), (c), (e)(4).) Defendant was convicted in counts 2, 6, and 7 of violating section 288.7, subdivision (b), which is not among the specified offenses within the scope of section 667.61. (§ 667.61, subd. (c).) Thus, both the jury's findings and the trial court's sentence—pursuant to section 667.61—in these counts were contrary to law. Although defendant failed to object, we may correct an unauthorized sentence whenever it comes to our attention. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1173 ["We may correct an unauthorized sentence on appeal despite failure to object below. [Citation.] A sentence is unauthorized if 'it could not lawfully be imposed under any circumstance in the particular case.'"].) Accordingly, we vacate the jury's true findings on the section 667.61 allegations with respect to counts 2, 6, and 7 and dismiss those enhancing circumstances allegations; strike the imposed, but stayed, sentences on the same; and order the minute order and abstract of judgment amended to remove any references to the section 667.61 enhancing circumstances with respect to counts 2, 6, and 7.
III. DISPOSITION
We reverse in part and remand the matter for the trial court to (1) vacate the true findings on the multiple victim allegations (§ 667.61, subds. (b), (e)(4)) in counts 2, 6, and 7 and dismiss those enhancing allegations, (2) strike the sentences—imposed but stayed—on those enhancements, (3) amend the March 28, 2018 minute order and abstract of judgment to reflect these changes and to delete the reference to a $300 restitution fine (§ 1202.4), and (4) forward the amended abstract of judgment and minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.