Opinion
A155671
04-22-2020
THE PEOPLE, Plaintiff and Respondent, v. EZRA KEITH WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1700653)
Ezra Keith Williams appeals from a judgment of conviction and sentence imposed after a jury found him guilty of multiple robberies. He contends his constitutional rights were violated by the introduction of his statement to a police officer, claiming the statement was made in response to custodial interrogation without advisement of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He further contends the case should be remanded to give the trial court an opportunity to strike one or more of his prior convictions for sentencing purposes in light of a post-sentencing change in the law. (See Pen. Code, § 667, subd. (a); § 1385.)
We will remand for the court to determine whether, in its discretion, one or more of Williams's prior convictions should be stricken in the interest of justice for sentencing purposes and, if so, to resentence Williams. We will affirm the judgment in all other respects.
I. FACTS AND PROCEDURAL HISTORY
An amended information charged Williams with three counts of robbery. (Pen. Code, § 211.) It also alleged that Williams had three prior convictions for serious felonies (§ 667, subd. (a)) and two prior strikes (§ 667, subds. (b)-(i)). The matter proceeded to a jury trial.
Unless otherwise indicated, all statutory references are to the Penal Code.
A. Prosecution Case
The prosecution asserted that Williams took part in three armed "takeover" robberies occurring in Eureka between December 23, 2016 and January 20, 2017.
1. The Robberies
The Umpqua Bank was robbed on December 23, 2016. Two men wearing bandannas and carrying what appeared to be handguns entered the bank and ordered people to "get down," not press any alarms, and hand over money. Both robbers were Caucasian males; the shorter robber was about 5 foot 10 inches tall and had blue eyes. The robbers took approximately $11,000 from a teller, as well as money from a customer who was depositing cash.
A Subway sandwich shop in Eureka was robbed on January 12, 2017. Two men wearing bandannas and carrying what appeared to be handguns entered the store and ordered one of the employees to get money out of the register. Both robbers were Caucasian males; the shorter one was about 5 feet 10 inches with hazel eyes, and the other robber was two or three inches taller. The robbers stole approximately $700.
The Tri-Counties Bank in Eureka was robbed on January 20, 2017. Two men wearing ski masks and carrying what appeared to be handguns entered the bank and ordered the employees to lie down. Both robbers were Caucasian males. They took $5,300 from the bank. Police obtained still images and video footage from the bank's surveillance cameras.
On December 15, 2016, a few days before the charged robberies, Eureka Police Officer Jonathan Eckert had observed a parked recreational vehicle (RV) matching the description of an RV that had been used in a robbery earlier in the week. Eckert knocked on the door of the RV, and Williams emerged. Three other people - Williams's half-brother Rocky Keene, Seth Bennett, and a woman - were inside. Also inside the RV were a black ski mask, a gray ski mask, and a pair of shoes, which the officer photographed. Eckert estimated that Williams was approximately 5 foot 9 or 10 inches tall, and Keene was taller.
2. Williams's Statement to Police and the Search of His Car
Eureka Police Officer John Omey attended a departmental briefing in January 2017, at which he learned unspecified "information" about Williams and that Williams was associated with a white 1986 Pontiac Firebird.
While on patrol on February 1, 2017, Officer Omey spotted the Firebird parked on a public street. Omey parked behind the Firebird and confirmed it was registered to Williams. The officer approached the car and observed Williams in the driver's seat and a woman in the passenger seat. Looking into the vehicle, Omey saw keys in the ignition and a digital police scanner below the steering column.
Officer Omey also observed a small black safe on the floorboard behind the driver's seat. Omey believed it was the size and type that could be used to store a small handgun. Under circumstances we discuss post, Omey picked up the safe and felt something sliding around inside. The safe was locked. Omey asked Williams about the location of the keys to the safe, and Williams responded that he had lost the keys and the only things inside the safe were checks and a checkbook.
At this point in Officer Omey's testimony, defense counsel objected "on lack of Mirandized statement" and moved to strike. The court called counsel to the bench, excused the jury for its afternoon break, held a hearing outside the jury's presence, and overruled defense counsel's objection and denied the motion to strike. The court's ruling is the subject of this appeal. As discussed post, Omey's testimony at the hearing provided additional information about his interaction with Williams.
Detective Ronald Harpham arrived at the scene, and Officer Omey showed him the safe. Using tools, they forced the safe open and found a black Colt Defender, which is a replica .177-caliber pellet gun.
In a search of the Firebird, police found a bag of clothing including dark blue jeans and a hooded sweatshirt with a distinctive logo, as well as two of Williams's cell phones.
Later that day, Detective Harpham used keys on Williams's key ring to search a Winnebago RV. Inside the Winnebago, Harpham found a Crosman pellet gun, which was a replica of a .357 long-barrel revolver, at the bottom of a clothes hamper; a pair of Under Armour shoes; pairs of dark blue jeans; a pair of black gloves; and photographs of Williams and Keene and of Williams wearing a hooded black Humboldt Clothing Company sweatshirt.
3. Evidence That Williams was one of the Robbers
Williams was identified as one of the robbers based on text messages, cell phone activity, and surveillance videos.
a. Williams's Text Messages
On November 29, 2016, Williams texted "Lala" that Williams was badly in need of money. On December 1, 2016, he texted Lala: "I told you either way I got you. Whether it comes out of my pocket you're getting paid if I have to rob a bank." (Italics added.) On the same day, Williams texted Bennett that he was "broke."
On December 22, 2016, the day before the Umpqua Bank robbery, Williams texted another suspect in the robberies - Williams' half-brother Keene - "Hey, Bro, tomorrow we ride?" Keene replied, "Fo sho," which is slang for "For sure." At 1:46 p.m. on the day of the Umpqua Bank robbery, Keene texted Williams, "I am at Picky Picky."
The Picky Picky Picky surplus store sold pellet guns, including the Crosman brand. Detective Harpham opined that the gun used in the Umpqua Bank robbery was a Crosman, which police found in the RV.
On January 31, 2017 - 11 days after the last charged robbery, Williams texted Keene: "I'm dead broke. No dope. No prospects. Not trying to do any more licks[-] just want to live, love, laugh with loved ones." (Italics added.) Detective Harpham explained that "licks" refers to planned robberies.
b. Cell Phone Activity Showing Williams's Proximity to Robberies
The robbery of the Umpqua Bank occurred at 4:30 p.m. on December 23, 2016. Cell phone records showed that Williams' cell phone connected with a cell tower 500 yards from the Umpqua Bank at 1:57 p.m. that day, and a call made at 3:03 or 3:30 p.m. from his cell phone connected with a cell tower just 200 yards from the bank.
The Subway robbery occurred on January 12, 2017 at 7:09 p.m. Records showed that Williams's phone was "very close" to the Subway at 6:05 p.m., about an hour before the robbery. In addition, calls made on Williams's cell phone at 3:45 p.m., 3:56 p.m., and 4:12 p.m. connected with a cell tower less than a mile north of a Big 5 store in Eureka, where a BB gun was purchased at 4:21 pm. (see post).
The Tri-Counties Bank was robbed at approximately 4:00 p.m. on January 20, 2017. A phone associated with Williams connected to a cell tower 300 yards away from the bank near the time of that robbery.
c. Store Records and Video Showing Williams Buying a BB Gun
A surveillance video from the Big 5 store in Eureka showed that on January 12, 2017, at approximately 4:21 p.m. - less than three hours before the Subway robbery - two men purchased a Colt Defender CO2 BB gun that resembled the one shown in surveillance videos of the Subway robbery. The BB gun looked like a real handgun. State law enforcement officer Sean Burger, who was familiar with Williams, identified Williams and Keene as the men in the video.
d. Identification of Williams Using Other Surveillance Videos
At trial, Detective Harpham testified that the clothing found inside Williams's Pontiac Firebird was similar to the clothing worn by the shorter of the robbers in the surveillance videos of the Subway and Tri-Cities robberies. Harpham further testified that the Crosman gun found in the Winnebago RV was used in the Umpqua Bank robbery, and the Colt Defender found in the safe in Williams's Pontiac was used in the Subway and Tri-Counties Bank robberies, based on their resemblance to the guns held by the shorter man in the videos.
In addition, Detective Harpham identified Williams and Keene as the unmasked men depicted in the surveillance footage and still photos of the Tri-Counties Bank's exterior ATM. The video was time-stamped one hour before the robbery. A surveillance video from a school along an "escape path" from the Tri-Counties Bank showed a car similar to Williams's 1986 white Pontiac pass by shortly after the robbery.
B. Defense Case
Williams did not testify and did not present any witnesses.
C. Verdict and Sentence
The jury found Williams guilty as charged. Williams thereafter admitted the allegations of his prior convictions.
The court sentenced Williams to 25 years to life on the count one robbery, plus consecutive terms of five years on the count two robbery and one year on the count three robbery. The court also imposed a ten-year term for each of the two prior serious felony convictions, giving Williams a total determinate term of 26 years and a total unstayed term of 51 years to life. This appeal followed.
D. Affirmance and Rehearing
On January 24, 2020, we filed our opinion in this appeal, affirming the judgment. On February 20, 2020, we received "Appellant's Application for Leave to File Untimely Petition for Rehearing" and "Appellant's Petition for Rehearing." In the petition for rehearing, Williams requested that we remand the case for the limited purpose of giving the trial court an opportunity to strike one or more of his prior convictions for sentencing purposes, an option that was unavailable at the time of sentencing. (§ 667, subd. (a); 1385.) Respondent indicated it would not file an opposition or take a position on Williams's application.
By order of February 24, 2020, we granted the application for leave to file the untimely petition for rehearing, directed that the rehearing petition be filed, and granted the petition for rehearing. We further stated: "To resolve the issue raised by the petition for rehearing, the court anticipates reissuing its opinion of January 24, 2020, with the addition that the matter is remanded to the trial court for the sole purpose of deciding whether to exercise its discretion to strike appellant's serious felony priors (Pen. Code, § 667, subd. (a)) pursuant to Penal Code section 1385. Any objection to this proposed judgment must be filed with this court, in writing, by March 5, 2020, explaining the basis for the objection." We received no objection to the proposed judgment. The following therefore repeats our opinion of January 24, 2020 and directs that judgment be entered as proposed.
II. DISCUSSION
Williams contends his statement to Officer Omey regarding the loss of the keys and the contents of the safe should have been excluded because it was obtained during a custodial interrogation without Miranda warnings.
A. Officer Omey's Testimony at the Hearing
At the hearing held after defense counsel objected to Officer Omey's disclosure of Williams's statement, Omey described what occurred at the scene. Omey asked Williams to exit the car and detained him in handcuffs. At some point, dispatch advised that Williams was on parole, and Williams confirmed his parole status. Omey searched his person and had him sit on a nearby retaining wall. During the ensuing search of Williams's car, Omey showed Williams the safe and asked him where the keys were. Williams said he had lost the keys, and then without additional prompting volunteered that the only things in the safe were checks and checkbooks. Omey told Williams that the object did not feel like checks and he thought Williams was lying, but Omey did not ask Williams what was inside the safe. Omey explained to the court that he did not give Williams Miranda warnings because Williams was not in custody and the officer was just doing a parole search. On cross-examination, Omey acknowledged that Williams was not free to leave during the parole search.
The court overruled defense counsel's objection, concluding that since Officer Omey knew Williams was on parole and had a gun safe in his car, this was "an investigative sort of scenario" that did not require Miranda warnings.
B. Analysis
When a defendant is subjected to custodial interrogation without being advised of his constitutional rights under Miranda, statements made during the interrogation cannot be used in the prosecution's case-in-chief. (People v. Lessie (2010) 47 Cal.4th 1152, 1162; People v. Thornton (2007) 41 Cal.4th 391, 432.) The question here is whether Williams was in custody at the time of his statement, and whether he made his statement in response to interrogation. (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)
It is appellant's burden to establish error based on the appellate record. We review the trial court's resolution of disputed facts for substantial evidence and review de novo whether, based on the facts, the challenged statement was legally obtained. (People v. Smith (2007) 40 Cal.4th 483, 502.)
1. Custody
A person is in custody for Miranda purposes if the person was formally arrested, or if the person's freedom of movement was restrained to a degree associated with a formal arrest. (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) The court considers the totality of the circumstances, including "(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning." (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) Additional factors may include whether the officer informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement, whether the police were aggressive, confrontational, or accusatory, and whether the police used interrogation techniques to pressure the suspect. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
Here, Williams had not been told he was arrested. The exact length of his detention is unclear, but there is no indication that an unreasonably long period elapsed between Officer Omey's initial contact with Williams and his inquiry about the location of the keys. The incident occurred in an open public area, and the ratio of officers to suspects was no more than one-to-one, since Omey was alone when he first contacted Williams (who also had a companion). Omey was not aggressive, confrontational or accusatory before or when he asked the lone question at issue. He did not tell Williams that he was considered to be a witness or a suspect, and he did not employ pressuring interrogation techniques.
Williams contends he was nonetheless in custody at the time of Officer Omey's inquiry because his freedom was restricted, or he was led to believe that his freedom was restricted. Specifically, as Omey acknowledged, Williams was not free to leave while he was handcuffed during Omey's search of his car.
Given the state of the record, however, it was not unreasonable to conclude that the restraint of Williams's freedom was incidental to a parole search at the time Officer Omey asked about the keys. Omey's question to Williams occurred when he was searching Williams's Pontiac, and Omey testified at the hearing that he conducted that search pursuant to Williams's parole condition (indeed, Williams would likely have been in violation of his parole if the gun safe contained a firearm). Omey admitted that Williams was not free to leave during this parole search. Moreover, the court noted at the hearing that "obviously in this situation, we've got the search of the automobile which is a parole search," and counsel did not disagree. (Italics added.) Where a detention is for the sole purpose of conducting a parole search, there is no custodial interrogation for purposes of Miranda, and Miranda warnings are unnecessary. (In re Richard T. (1978) 79 Cal.App.3d 382, 389-391 [Miranda warnings were not required when a minor's parole officer, transporting the minor to the parole office, was investigating whether the minor might have violated a parole condition and did not directly question him about a new offense or suspect that the minor engaged in criminal activity]; cf. People v. Krebs (2019) 8 Cal.5th 265, 300-301.)
Williams argues that Officer Omey's exchange with Williams did not occur solely as part of a parole search, but occurred in the course of investigating the robberies because Omey had learned information about Williams at a briefing before he approached Williams's Pontiac. However, Williams fails to cite any evidence that Omey learned or believed Williams was being investigated for robbery. Omey did not testify what information he learned about Williams at the briefing, other than that Williams was associated with a certain Pontiac Firebird. When the prosecutor asked Omey the purpose of the briefing, the defense interposed a hearsay objection that the court sustained, and defense counsel did not pursue the matter at the ensuing hearing outside the jury's presence. So while Williams now points us to evidence that the briefings generally informed officers of "any type of investigation where officers need assistance," "from missing people to officer safety information," the record does not show that Omey had learned Williams was suspected of committing any new crime, much less that Omey thereafter asked Williams about the keys to the safe as part of an investigation into any robbery.
Officer Benjamin Omey testified that he contacted Williams on January 26, 2017 to obtain Williams's contact information, after he had learned from a "previous discussion with some other officers during briefing regarding an ongoing investigation with . . . Williams." It was John Omey - a different officer - who spotted Williams in the Pontiac Firebird on February 1, 2017 and inquired about the gun safe. At any rate, Benjamin Omey testified that he did not know specifics about the investigation, but only that investigators wanted Williams's contact information and possibly wanted to speak with him. Thus, even though the record does not tell us specifically why John Omey approached Williams's Pontiac, why Williams was placed in handcuffs, or when exactly Omey learned that Williams was on parole, there is no evidence precluding the conclusion that Omey asked about the safe keys while conducting a search solely pursuant to Williams's parole condition.
The case of People v. Farris (1981) 120 Cal.App.3d 51 (Farris), which the parties discuss at length, is distinguishable. There, a deputy sheriff suspected that the defendant had pilfered jewelry in a burglary. The deputy informed the defendant's parole agent, who shared the suspicion; they and another parole agent went to the defendant's home and told him he was a suspect and they were going to search his bedroom. The search uncovered some of the stolen jewelry. Then, without Miranda warnings, the deputy asked the defendant to whom the jewelry belonged and where he got it. The court concluded that the defendant was in custody at the time of these questions because he was not free to leave while his bedroom was being searched, and he was thus deprived of his freedom in a significant way. (Id. at p. 56.) The court distinguished In re Richard T. on the ground that the parole officer in In re Richard T. was only investigating a violation of a parole condition that was not a crime (possession of a gun) and only incidentally discovered the crime (that the gun was stolen). (Id. at p. 57.) Moreover, the court in Farris asserted, "once defendant [in Farris] was found to be in possession of the stolen jewelry, probable cause to arrest him existed." (Ibid.) Thus, by the time of the officer's question at issue, the defendant in Farris was already known to be possessing stolen jewelry, making it all the more likely that he was not free to leave. (Ibid.; see In re Richard T., supra, 79 Cal.App.3d at p. 391.)
Here, unlike the circumstances in Farris, there is no direct evidence that Officer Omey was investigating Williams as the perpetrator of a new offense, Williams was not outnumbered 3 to 1 by law enforcement at the scene, Williams was out in public rather than in his home, he was not told he was a suspect, and Omey's question did not follow the discovery of evidence tying Williams to a new crime. To the contrary, substantial evidence supports the conclusion that, at the time of the question regarding the keys to the safe, Omey was investigating a potential violation of a parole condition (possession of a gun inside the safe) and only incidentally discovered evidence that would later be linked to a separate crime (that the gun was used in a robbery). Based on the record, this case is much closer to Richard T. than to Farris, and Williams has failed to establish on appeal that he was not in custody at the time of Omey's inquiry.
Williams points us to the prosecutor's statement at the hearing that Williams was " 'technically, in custody.' " It is plain, however, that the prosecutor merely meant Williams was in custody as part of the parole search. In any event, the court concluded that Williams was not in custody for purposes of Miranda. It is the ruling of the court that we review, and the propriety of that ruling turns on the law and the facts as developed in the record, not the conclusions of counsel.
2. Interrogation
The term "interrogation" in this context refers both to express questioning and to its functional equivalent, including "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301, fn omitted.) Typically, Miranda is not implicated when police ask questions related to safety concerns or engage in casual conversations or small talk unrelated to the offense. (People v. Andreasen (2013) 214 Cal.App.4th 70, 87.)
Respondent argues that Officer Omey's query about the location of the keys is akin to an officer's request for consent to search, which does not constitute interrogation for Miranda purposes because it is designed to elicit physical evidence rather than a suspect's testimonial or communicative response. (People v. Brewer (2000) 81 Cal.App.4th 442, 457-459; United States v. Shlater (7th Cir. 1996) 85 F.3d 1251, 1256.) The analogy is not a perfect fit here, since Omey already had consent to search due to Williams's parole search provision, and potentially obtaining a person's admission that he or she has the keys to a safe is not the same as merely seeking the person's leave to search a location. We also question respondents' argument that Omey's inquiry was similar to asking for the keys to a car in order to clarify the situation confronting the officer. (Citing State v. Castillo (La. 1980) 389 So.2d 1307, 1311; People v. Velasquez (1998) 246 A.D.2d 448, 668 N.Y.S.2d 374.)
We do agree, however, that Officer Omey's inquiry was focused on gaining access to the safe as opposed to eliciting an incriminating statement from Williams, and ample evidence supports that conclusion. Omey did not ask Williams what was in the safe, whose safe it was, whether it contained a gun, or anything about any robbery. Merely asking about the location of the keys would not reasonably lead someone to confess that they robbed two banks and a sandwich shop, or even that they stashed their gun inside the safe. The reasonably likely responses to "where are the keys to the safe" - such as, "I don't know," "I lost them," "in my pocket," or "it's not my safe" - are not in themselves incriminating statements.
Williams insists that Officer Omey's question constituted interrogation because, he claims, there was no possible non-incriminating response: if Williams said where the key was (and handed it over), the safe would be opened to reveal the Colt Defender; if Williams said he did not have the key, he set himself up to be caught in a lie when the police opened the safe and found the Colt Defender. However, a response disclosing the location of the key would not be incriminating merely because the key could be used to find evidence inside the safe, at least where, as here, the police were going to open the safe and discover its contents pursuant to the parole condition anyway. And whether a person might lie in response to the officer's question cannot be the test for what constitutes interrogation either: if it were, any question an officer asks would be deemed interrogation, and that is certainly not the law.
Based on the appellate record and counsel's arguments, Williams has not established that Officer Omey's question was reasonably likely to lead to an incriminating response, or that it constituted interrogation for Miranda purposes.
Although not specifically argued by the parties, the possible responses of "I lost the keys" or "they're here in my pocket" could suggest an admission by Williams that the safe was his - a statement that, in some circumstances, might be incriminating. Here, however, there was never any question that the safe belonged to Williams. It was located in the vehicle registered to Williams, while Williams was in the car. Moreover, even if Officer Omey's query constituted interrogation, it was not in a custodial context (see ante), and any error in not striking Omey's testimony was harmless (see post). --------
C. Harmless Error
Any error in overruling defense counsel's objection and declining to strike Omey's testimony about Williams's statement was harmless beyond a reasonable doubt. As the trial court concluded, there was "a mountain of evidence" that "convince[d] the jury to come back rather quickly with a verdict in this case."
Within three weeks before the Umpqua Bank robbery, Williams was observed with ski masks and cohort Keene in a RV purportedly involved in another robbery. He texted about his financial woes and referred to robbing a bank. All three of the charged robberies occurring thereafter - including the robbery of two banks - were perpetrated in a similar fashion by two robbers. The day before the Umpqua Bank robbery, Williams texted Keene "we ride" the next day, and his cell phone records placed him about 200 yards from the bank approximately an hour before the robbery occurred. A Crosman pellet gun, consistent with the one used to rob the Umpqua Bank, was found in the Winnebago associated with Williams. On the day of the Subway robbery, Williams and Keene were identified in the Big 5 surveillance video purchasing a black Colt Defender, which was consistent with the BB gun used to rob the Subway less than three hours later. Cell phone records showed Williams very close to the Subway about an hour before it was robbed, and a Colt Defender was found in the safe located inside Williams's vehicle, in which Williams was sitting with a police scanner. (There is no dispute in this appeal that the Colt Defender would have been admissible even if Officer Omey's inquiry of Williams violated Miranda; see United States v. Patane (2004) 542 U.S. 630, 634.) The Tri-Counties Bank robbery also involved a Colt Defender, and cell phone records showed Williams about 300 yards away from that bank near the time it was robbed. As to the robberies in which the perpetrators were unmasked, witnesses gave a description of one of the robbers that matched Williams's race, gender, height and eye color. As to the third robbery - of the Tri-Counties Bank by masked perpetrators - surveillance video captured Williams and Keene unmasked at the Tri-Counties' Bank ATM one hour before the robbery, and spotted Williams's Pontiac shortly after the robbery. Williams's car and the Winnebago contained distinctive clothing that matched the distinctive clothing of one of the robbers as shown in the surveillance videos. And after the third and final robbery, Williams texted Keene that he was not doing any more "licks" (robberies).
Williams nonetheless speculates that a juror might have been leaning toward acquittal because of the "lack of a solid eyewitness identification" or some other " 'smoking gun,' " and his statement following Omey's question showed consciousness of guilt that could have swayed the jury to convict. We see no reasonable possibility that a juror, unpersuaded by the avalanche of evidence against Williams as we just recited, would have proceeded to convict him merely because he said he lost the keys and the safe contained checks and check books.
III. DISPOSITION
We remand to the trial court for the sole purpose of deciding whether to exercise its discretion to strike appellant's serious felony prior convictions (Pen Code § 667(a)) pursuant to Penal Code section 1385 and, if so, to resentence appellant. The judgment is affirmed in all other respects.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.