Filed 1/12/16 P. v. Smith CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E061317

v.                                                                       (Super.Ct.No. SWF1303357)

CLIFTON LEROY SMITH,                                                     OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,

Judge. Affirmed as modified.

         Carl J. Fabian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, and Eric A. Swenson and Daniel J. Hilton, Deputy Attorneys General, for

Plaintiff and Respondent.




                                                             1
       Defendant Clifton Leroy Smith asked a stranger if he could have his bike. When

the victim refused, defendant poked the victim in the hand with a knife, saying, “[L]et

go.” The victim continued to refuse, and defendant “backed off.”

       Less than a week later, defendant confronted the same victim, pulled out a gun,

and demanded the victim’s wallet. Once again, the victim resisted, but defendant rifled

through his pockets and took his wallet and some loose cash.

       When defendant was arrested, he was found to be in possession of

methamphetamine and a glass pipe. Before trial, he pleaded guilty to possession of

methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of drug

paraphernalia (Health & Saf. Code, § 11364.1).

       After a jury trial, defendant was found guilty of attempted robbery (Pen. Code,

§§ 211, 664) and robbery (Pen. Code, § 211). In a bifurcated proceeding, after he waived

a jury trial, three “strike” priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), two prior

serious felony convictions (Pen. Code, § 667, subd. (a)), and seven prior prison term

enhancements (Pen. Code, § 667.5, subd. (b)) were found true. As a result, defendant

was sentenced to a total of 66 years to life in prison.

       Defendant now contends:

       1. The trial court erred by failing to instruct on lesser included offenses.

       2. For various reasons, five of the seven prior prison term enhancements must be

stricken.




                                               2
       3. The trial court failed to state whether the terms on counts 3 and 4 were

concurrent or consecutive, and hence they must be deemed to be concurrent.

       We agree that three of the prior prison term enhancements must be stricken. We

also agree that the terms on counts 3 and 4 should be concurrent, but we conclude that

that is how the trial court ran them. Otherwise, we find no reversible error.

                                              I

                               FACTUAL BACKGROUND

       A.     August 10, 2013: Attempted Robbery (Count 2).

       Victim Brian Miller lived and worked, as a maintenance man, at the Florida Inn in

Hemet.

       On or before August 10, 2013, around 5:00 p.m., Miller and his friend Patty were

across the street from the Florida Inn; Miller had his bike with him. Defendant walked up

and asked if he could have the bike. Miller said no.

       Defendant took out a knife and poked Miller’s hand with it, saying, “[L]et go.” He

did not poke hard enough to break the skin, but hard enough to “let [Miller] know that he

meant business . . . .” Defendant was “in [Miller’s] face”; they were about six inches

apart. Miller was afraid. Nevertheless, he said, “I’m not afraid of you.”

       Patty said, “Ah, leave him alone . . . .” At that point, defendant “backed off.”

However, he watched them as they walked back to the motel. Miller did not call the

police because he “figured the situation had been handled without any harm.”




                                             3
       Miller admitted that he had never told anyone that Patty was with him until two

days before trial, when he told a prosecution investigator. He explained that he had not

been asked. He did not remember Patty’s last name; he also did not know how to find

her, because she had moved.

       B.     August 17, 2013: Robbery (Count 1).

       On August 17, 2013, around 10:30 or 11:00 p.m., Miller finished doing some work

in one of the rooms of the Florida Inn. When he opened the door to leave, defendant

confronted him and shoved him back into the room.

       Defendant drew a gun and demanded Miller’s wallet. He started grabbing things

out of Miller’s pockets, including his wallet and some loose bills. Miller “resisted,”

causing change from his pockets to go “flying.” Defendant picked up the change. He

threatened to shoot Miller if Miller “didn’t turn it over . . . .” Miller lunged toward

defendant’s gun hand. Defendant started punching and kicking him. Finally, defendant

ran out the door. Miller used the manager’s phone to call 911.

       When the police interviewed Miller, he described the robber as black, about six

feet tall, and weighing about 180 pounds. He also said that the robber was missing front

teeth. Defendant matched this description. However, Miller added that the robber had “a

short fro” and no facial hair; he did not remember seeing any tattoos. When defendant

was arrested, he had cornrows, a mustache and beard, and visible tattoos.

       Miller described the gun as a black semiautomatic.




                                              4
       C.     Defendant’s Arrest.

       About two and a half months later, on November 2, 2013, Miller saw defendant

near the Florida Inn. He called 911, and the police arrested defendant. In his pocket, they

found a replica toy handgun.

       The police held an in-field showup, in which Miller identified defendant.

       At trial, Miller testified that the color, the shape, and the barrel of the toy gun all

matched the gun he saw; however, he did not remember seeing a makeshift sight that was

taped to the top.

       When a prosecution investigator interviewed him before trial, Miller said he

thought that the gun used in the robbery was smaller than the toy gun.

                                               II

            FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSES

       Defendant contends that the trial court erred by failing to instruct on assault,

battery, and attempted theft as lesser included offenses to count 1 and on assault, battery,

and theft as lesser included offenses to count 2.

       A.     Additional Factual and Procedural Background.

       During an instructions conference, there was this dialogue:

       “THE COURT: Okay. We do need to address the issue of lessers for robbery.

There would be attempted robbery, but I don’t find any substantial facts to support

attempted robbery as to Count 1. It’s either completed robbery or incomplete robbery.

But there is an available lesser under 240. And the only way that one could get to that



                                               5
would be if you sever off the cause of action at an earlier stage and say there was

assaultive conduct without a taking before it. It’s kind of an artifice of law. It’s not

really recognized in the true substance of the case. But have you talked to your client

notwithstanding that?

       “[DEFENSE COUNSEL]: Yes, your Honor.

       “THE COURT: And what’s the desire by the defense?

       “[DEFENSE COUNSEL]: The desire is to waive the lessers. Waive instruction of

the lessers.

       “Is that right, Mr. Smith?

       “THE DEFENDANT: Yes.

       “[DEFENSE COUNSEL]: We’ve talked about that.

       “THE COURT: Okay. Mr. Smith, only you can waive a lesser offense. . . . [¶]

       “You could very well be entitled to that instruction based on the circumstance. For

tactical reasons your attorney has made the decision that he would rather force the jury to

either make the decision of guilty or not guilty on the major charge. That’s going to be

your decision, though.

       “Is that what you want me to do?

       “THE DEFENDANT: Yes.

       “THE COURT: And you understand when you waive that lesser, that’s done. You

can’t argue later on, well, we should have instructed on a lesser offense.

       “You understand that?



                                              6
       “THE DEFENDANT: Yes.”

       B.     Discussion.

              1.     Invited Error.

       Preliminarily, the People contend that the error, if any, was invited.

       “‘“[A] defendant may not invoke a trial court’s failure to instruct on a lesser

included offense as a basis on which to reverse a conviction when, for tactical reasons,

the defendant persuades a trial court not to instruct on a lesser included offense supported

by the evidence. [Citations.] In that situation, the doctrine of invited error bars the

defendant from challenging on appeal the trial court’s failure to give the instruction.”’

[Citation.]” (People v. Beames (2007) 40 Cal.4th 907, 927.)

       We recognize that “[t]he invited error doctrine applies [only] when the defense has

made a ‘“‘“conscious and deliberate tactical choice”’”’ in asking for the instruction in

question. [Citation.]” (People v. Merriman (2014) 60 Cal.4th 1, 104.) Here, however,

defense counsel made it clear that he had made a conscious and deliberate tactical choice

to forego any instructions on lesser included offenses. The fact that he did not state his

reasons on the record is of no consequence. “[T]he record must show only that counsel

made a conscious, deliberate tactical choice between having the instruction and not

having it.” (People v. Cooper (1991) 53 Cal.3d 771, 831.) “In cases involving an action

affirmatively taken by defense counsel, we have found a clearly implied tactical purpose

to be sufficient to invoke the invited error rule. [Citations.]” (People v. Coffman and

Marlow (2004) 34 Cal.4th 1, 49.)



                                              7
        Defendant relies on People v. Golde (2008) 163 Cal.App.4th 101 (Golde). There,

the defendant and his counsel expressly waived any instructions on lesser included

offenses. (Id. at pp. 114-115.) On appeal, the defendant argued that the trial court erred

by failing to instruct on one particular lesser included offense. (Id. at p. 113.) The People

argued that the error was invited. The court rejected this argument, reasoning that the

trial court has a duty to instruct on lesser included offenses even when the defendant

objects. (Id. at pp. 114-115.)

        Golde, however, conflicts with California Supreme Court authority. “‘“‘ . . . The

obligation to instruct on lesser included offenses exists even when as a matter of trial

tactics a defendant not only fails to request the instruction but expressly objects to its

being given.”’ [Citation.] [¶] Nevertheless, the claim may be waived under the doctrine

of invited error if trial counsel both ‘“intentionally caused the trial court to err”’ and

clearly did so for tactical reasons.’ [Citation.]” (People v. Souza (2012) 54 Cal.4th 90,

114.)

        “The doctrine of invited error does not . . . vindicate the decision of a trial court to

grant a defendant’s request not to give an instruction that is otherwise proper: the error is

still error. [Citation.] The cases . . . do not hold that a trial court must honor such a

request; they hold only that when the trial court accedes to the defendant’s wishes, the

defendant may not argue on appeal that in doing so the court committed prejudicial error,

thus requiring a reversal of the conviction. These holdings are consistent with the rule . . .

that the trial court must instruct on a lesser included offense when the evidence would



                                                8
support a conviction for the offense, notwithstanding the defendant’s objection to the

instruction.” (People v. Barton (1995) 12 Cal.4th 186, 198, fn. omitted.)1

       Defendant also tries to reframe the nature of the error by arguing that the trial court

erred by allowing defense counsel to waive lesser included offense instructions.2

However, this claim, too, is barred by invited error.

       Finally, defendant’s fallback position is that, by inviting error, defense counsel

rendered constitutionally ineffective assistance.

       “To establish ineffective assistance of counsel, ‘“‘a defendant must first show

counsel’s performance was “deficient” because his “representation fell below an

objective standard of reasonableness . . . under prevailing professional norms.”’”’

[Citation.] ‘“[T]here is a ‘strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.’”’ [Citation.] ‘In the usual case, where

counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the

record, we will not find ineffective assistance of counsel on appeal unless there could be


       1      At oral argument, defendant’s counsel pointed out that Golde has been cited
by the California Supreme Court (People v. Livingston (2012) 53 Cal.4th 1145, 1151) as
well as by the Judicial Council’s Advisory Committee on Criminal Jury Instructions (e.g.,
CALCRIM No. 225 (2015) Authority, p. 55). Rather conspicuously, however, it has
never been cited with regard to any issue of invited error.
       2      Alternatively, defendant may be arguing that the trial court erred by
allowing defendant himself — as opposed to his counsel — to waive lesser included
offense instructions. His opening brief is not clear on this point. If this is his argument,
however, we fail to see how he was prejudiced, as his defense counsel not only
recommended but also joined in the waiver.



                                              9
no conceivable reason for counsel’s acts or omissions.’ [Citation.]” (People v. Nguyen

(2015) 61 Cal.4th 1015, 1051.)

       The classic reason — indeed, the only logical reason — for objecting to

instructions on a lesser included offense is that, if the jury is not convinced that the

prosecution has proven every element of the charged offense, the defendant will be

acquitted, not merely convicted of the lesser. It is safe to infer that this was defense

counsel’s reasoning here.

       In addition, defense counsel chose to present a single defense — mistaken identity.

This offered the prospect of a complete acquittal. He could reasonably be concerned that,

if he argued in the alternative that defendant was guilty, though guilty only of lesser

included offenses, that would detract from his central theme.

       Defendant argues that it was not reasonable to increase the risk of a three strikes

sentence when the lesser included offenses — assault, battery, and theft — were only

misdemeanors. Nevertheless, if defendant really, really did not want to be in custody at




                                              10
all and was willing to do anything he possibly could to try to avoid it,3 that could be a

rational gamble.4

       We therefore conclude that defendant’s contention is barred by the doctrine of

invited error. We further conclude that defendant has not shown that, by inviting the

asserted error, defense counsel rendered ineffective assistance.

              2.      The Merits.

       Separately and alternatively, we also reject defendant’s contention on the merits.

       “A trial court must instruct on all lesser included offenses supported by substantial

evidence. [Citations.] The duty applies whenever there is evidence in the record from

which a reasonable jury could conclude the defendant is guilty of the lesser, but not the

greater, offense. [Citations.]” (People v. Duff (2014) 58 Cal.4th 527, 561.)

       “We . . . appl[y] two tests in determining whether an uncharged offense is

necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory




       3      Defendant asserts that a conviction on the lesser included offenses “would
have resulted in credit . . . for time served . . . .” That was not at all clear. Defendant had
pleaded guilty to possession of methamphetamine, which at the time was a wobbler.
(Health & Saf. Code, former § 11377, subds. (a)-(b), Stats. 2011, ch. 15, § 171; see also
Health & Saf. Code, § 11055, subd. (d)(2).) Given defendant’s extensive criminal record,
defense counsel could reasonably conclude that, if defendant’s only other convictions
were misdemeanors, the trial court was unlikely to reduce this count to a misdemeanor.
       4      At sentencing, it was revealed that defendant had a life-threatening illness
such that, even if he were sentenced to a determinate term of years, he “likely [would] die
in prison.” That could certainly be an incentive to risk an extremely lengthy term (that he
would die before serving) in the hope of avoiding custody entirely.



                                              11
pleading’ test. [Citation.] The elements test is satisfied if the statutory elements of the

greater offense include all of the statutory elements of the lesser offense, such that all

legal elements of the lesser offense are also elements of the greater. [Citation.] . . .

Under the accusatory pleading test, a lesser offense is included within the greater charged

offense if the facts actually alleged in the accusatory pleading include all of the elements

of the lesser offense. [Citations.]” (People v. Bailey (2012) 54 Cal.4th 740, 748.)

       “On appeal, we independently review whether a trial court erroneously failed to

instruct on a lesser included offense. [Citation.]” (People v. Trujeque (2015) 61 Cal.4th

227, 271.)

                      i.     Count 1: Robbery.

       Defendant contends that the trial court was required to instruct on assault, battery,

and theft as lesser offenses to the robbery charged in count 1.

       Theft is a lesser included offense of robbery. (People v. Castaneda (2011) 51

Cal.4th 1292, 1331.) Assault and battery are not lesser included offense of robbery under

the elements test. (People v. Parson (2008) 44 Cal.4th 332, 349 [assault].) Defendant

argues, however, that because the information alleged that the robbery was committed by

“force and fear” (italics added), assault and battery were lesser included offense of

robbery under the accusatory pleading test.

       We may assume, without deciding, that defendant is correct on this point. (But see

People v. Wright (1996) 52 Cal.App.4th 203, 210-211.) Even if so, the trial court was not

required to instruct on either assault or battery unless there was substantial evidence that



                                              12
defendant committed an assault or a battery but not a robbery. Likewise, it was not

required to instruct on theft unless there was substantial evidence that defendant

committed a theft but not a robbery.

       Defendant’s act of shoving Miller constituted both an assault and a battery.

Defendant’s act of pulling a gun on Miller and threatening to shoot him could also

constitute an assault.5 (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) Finally,

defendant’s act of taking Miller’s wallet and cash constituted theft. There was no

substantial evidence, however, that the assault was not part of the theft, or vice versa.

       Defendant argues that the jury could have found that he assaulted Miller to

retaliate against him or to prevent him from testifying and only thereafter formed the

intent to steal. We cannot agree. To infer an intent to retaliate from the mere fact that

defendant had committed a previous crime against Miller would be purely speculative.

(See People v. Castaneda, supra, 51 Cal.4th at p. 1332 [“the fact that defendant had other

motives for killing the victim does not constitute evidence that he formed the intent to

steal only after he ceased applying force against her.”].) The shove merely prevented

Miller from leaving the room and forced him back inside. As soon as defendant and

Miller could not be seen from outside, defendant immediately drew his gun and




       5      This would not constitute an assault if defendant was using a toy gun.
(People v. Wolcott (1983) 34 Cal.3d 92, 100.) However, in light of Miller’s inability to
positively identify the toy gun as the gun used in the robbery, the jury could reasonably
find that defendant was using a real gun.



                                             13
demanded Miller’s wallet. There is no evidence that defendant’s intent changed at any

point.

         Defendant relies on People v. Ledesma (2006) 39 Cal.4th 641. There, the Supreme

Court held that the trial court erred by failing to instruct on theft as a lesser included

offense of robbery. (Id. at p. 715.) It explained that there was substantial evidence that

the defendant killed the victim to prevent him from testifying and formed the intent to

steal only after the victim was dead. (Ibid.) The court noted that “[t]he prosecution’s

witnesses testified that defendant had stated before the killing that he wanted to kill the

victim out of revenge and to prevent his testimony . . . .” (Ibid.) The court also cited

(ibid.) the defendant’s own statements that “he had killed a person who had identified him

in a robbery” and that “if he eliminated the witness, there would be no one to testify

against him.” (Id. at p. 657.) There was no similar evidence of intent to retaliate here.

         Finally, in his reply brief, defendant argues that the trial court found that assault

was a viable lesser included offense. That is not how we interpret its remarks. While it

did say that assault was “an available lesser,” it added that “the only way that one could

get to that would be if you . . . say there was assaultive conduct without a taking before

it.” In other words, it concluded, just as we do, that the assault and the taking were

inseparable. It allowed defense counsel to waive any lesser included offense instructions,

not because it believed they were required, but because it wanted to foreclose any

possible dispute. We note, however, that even if the trial court had found sufficient




                                                14
evidence of a lesser included offense, that finding would be irrelevant now, because we

review the issue independently.

       We therefore conclude that the trial court did not err by failing to instruct on any

lesser included offenses with respect to count 1.

                     ii.     Count 2: Attempted Robbery.

       Defendant also contends that the trial court was required to instruct on assault,

battery, and attempted theft as lesser offenses to the attempted robbery charged in

count 2.

       Just as theft is a lesser included offense of robbery, attempted theft is a lesser

included offense of attempted robbery. (People v. Reeves (2001) 91 Cal.App.4th 14, 53.)

       Completed assault and completed battery are not lesser included offenses of

attempted robbery. (People v. Medina (2007) 41 Cal.4th 685, 694-695.) Nor is there any

wording in the information that would make them lesser included offenses in this case

under the accusatory pleading test. However, just as we assumed, in part II.B.1, ante, that

assault and battery are lesser included offenses of robbery, we may assume that attempted

assault and attempted battery are lesser included offenses of attempted robbery. The jury

could convict defendant of attempted assault and attempted battery even though the

evidence showed a completed assault and battery. (Pen. Code, § 663; People v. Mejia

(2012) 211 Cal.App.4th 586, 605.)




                                              15
       Once again, however, the trial court was not required to instruct on any of these

crimes unless there was substantial evidence of an attempted assault, battery, or theft that

was not part of an attempted robbery. There was no such evidence here.

       Defendant argues that there was evidence that he did not intend to commit a theft

by means of force or fear, and thus he did not have the specific intent to commit a

robbery. He points to “the extremely brief duration of the encounter” and to the fact that

he stopped as soon as Patty told him to. Nevertheless, the evidence showed that he poked

Miller’s hand at the same time as he said, “[L]et go.” Thus, he used force while

demanding the property. He had no other apparent reason to poke Miller’s hand. The

fact that he desisted quickly and readily cannot obscure the fact that the evidence showed

an attempted robbery at that point.

       Defendant also argues that there was evidence that he merely wanted to “borrow”

or to “use” Miller’s bike — i.e., that he lacked the intent to permanently deprive. (Italics

omitted.) When he first walked up to Miller, he asked if he could “have” Miller’s bike.

Miller testified that he refused to let defendant “use” the bike. But then defendant started

poking Miller in the hand with a knife. They were strangers to each other. Defendant

had no apparent way of returning the bike to Miller unless they worked out some

consensual arrangement. By poking Miller in the hand with his knife, defendant put paid

to any such possibility.

       Finally, defendant argues that the vagueness of Miller’s testimony about Patty and

the prosecution’s inability to produce her gave the jury reason to doubt Miller’s testimony



                                             16
about the bicycle incident. The jury could have concluded that Miller was lying or

exaggerating. However, it did not have any basis to conclude that he was lying about the

use of force but not about the attempted taking, or vice versa. Thus, Patty’s absence was

not a basis for lesser included offense instructions.

       We therefore conclude that the trial court also did not err by failing to instruct on

any lesser included offenses with respect to count 2.

                                              III

                       PRIOR PRISON TERM ENHANCEMENTS

       Defendant contends that five of the seven prior prison term enhancements must be

stricken.

       A.     Additional Factual and Procedural Background.

       Attached as Attachment A is a chart summarizing the evidence that was admitted

at the trial on the priors and summarizing the trial court’s use of the priors in sentencing.

       B.     Prior Prison Term Enhancements and Prior Serious Felony Enhancements

              Based on the Same Conviction.

       Under People v. Jones (1993) 5 Cal.4th 1142, a single prior conviction can be the

basis of a prior serious felony conviction enhancement or a prior prison term

enhancement, but not both.

       The People concede that the trial court erred by imposing both prior serious felony

conviction enhancements and prior prison term enhancements based on prior 2 and prior




                                              17
3. Accordingly, we will strike these prior prison term enhancements. (People v. Jones,

supra, 5 Cal.4th at p. 1157.)

       C.     Stay of a Prior Prison Term Enhancement.

       The trial court stayed the prior prison term enhancement based on prior 4.

However, prior 4 could not be used as the basis for a prior prison term enhancement,

because prior 3 and prior 4 did not give rise to separate prison terms. (People v. Riel

(2000) 22 Cal.4th 1153, 1203.) Thus, as the People concede, the enhancement should be

stricken, not stayed.

       D.     The Effect of Proposition 47.

       Defendant contends that, under Proposition 47, prior 1 (possession of cocaine) and

prior 5 (receiving stolen property) are no longer felonies and therefore can no longer be

the basis of prior prison term enhancements.

       Defendant filed his notice of appeal on June 10, 2014. Proposition 47 went into

effect on November 5, 2014. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1328.)

Defendant has not filed a petition for resentencing under Proposition 47 (see Pen. Code,

§ 1170.18), nor has he raised his present contention in the trial court in any other way.

       In sum, “[n]o ruling was made below. Accordingly, no review can be conducted

here. ‘[T]he absence of an adverse ruling precludes any appellate challenge.’ [Citation.]”

(People v. Rowland (1992) 4 Cal.4th 238, 259.)




                                              18
                                            IV

        CONSECUTIVE OR CONCURRENT TERMS ON COUNTS 3 AND 4

       Defendant contends that the trial court failed to state whether the terms on count 3

(possession of methamphetamine) and count 4 (possession of paraphernalia) were

concurrent or consecutive, and hence they must be deemed concurrent.

       The trial court did order count 4 “served concurrently with [c]ount 3.” It did not

expressly state whether counts 3 and 4 were to be served concurrently or consecutively

with respect to counts 1 and 2. However, it stated that that the total determinate term was

16 years, which necessarily meant that it intended both counts to be concurrent. The

People concede that counts 3 and 4 were run concurrently. There is no need to modify the

judgment in this respect.

                                             V

                                      DISPOSITION

       The judgment is modified as follows. The true findings on the second, third, and

fourth prior prison term enhancements are stricken. The one-year terms imposed on the

second and third prior prison term enhancements and the stayed one-year term imposed

on the fourth prior prison term enhancement are also stricken. This means that the

aggregate sentence is reduced to 64 years to life. The judgment as thus modified is

affirmed.

       The clerk of the superior court is directed to prepare an amended sentencing

minute order and an amended abstract of judgment reflecting these modifications and to



                                            19
forward a certified copy of the amended abstract to the Department of Corrections and

Rehabilitation. (Pen. Code, §§ 1213, subd. (a), 1216.)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                             RAMIREZ
                                                                                    P. J.


We concur:

KING
                          J.

MILLER
                          J.




                                           20
                                                                                              Prior    Prior
                                                                                              prison   serious
Prior   Case No.      Convicted       Sentenced       Crime                       Term        term     felony Strike
1       A471709       Jul. 1, 1988    Apr. 16, 1990   Possession of cocaine       16 mos.     X
2       YA003201      Apr. 27, 1990   May 8, 1990     Robbery                     2 yrs.      X        X      X
3       YA009721      Feb. 24, 1992   Mar. 30, 1992   Robbery                     7 yrs.      X        X      X
4             "               "              "        Residential burglary               "    Stayed          X
5       YA026672      Apr. 2, 1996    Apr. 16, 1996   Receiving stolen property   8 yrs.      X
6       TA068052-01   Apr. 7, 2003    Apr. 7, 2003    Unlawful taking or          4 yrs., 8   X
                                                      driving                     mos.
7       TA097409-01 May 20, 2008      May 20, 2008    Possession of cocaine       4 yrs.      X
                                                      base for sale




                                                ATTACHMENT A

                                                         21
