People v. Hughes CA3 ( 2015 )

Filed 3/3/15 P. v. Hughes CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
THE PEOPLE, C071536
Plaintiff and Respondent, (Super. Ct. No. TF036608A)
v.
RONALD PIERRE HUGHES,
Defendant and Appellant.
Defendant Ronald Pierre Hughes was charged in a first amended information with
assault with intent to commit rape during the commission of a first degree burglary (Pen.
Code, § 220, subd. (b); count 1)1 and two counts of first degree burglary (§ 459; counts 2
& 3). Counts 1 and 2 are based on the same incident. At his arraignment, defendant
pleaded guilty to the first degree burglary charges (counts 2 & 3), and thereafter was tried
and convicted by a jury of the more serious charge of assault with intent to commit rape
during the commission of a first degree burglary (count 1). The trial court sentenced
defendant to an aggregate term of life plus four years in state prison, consisting of life
1 Further undesignated statutory references are to the Penal Code.
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with the possibility of parole on count 1, and a consecutive four years on count 3. The
trial court imposed and stayed defendant’s sentence on count 2 pursuant to section 654.
Defendant appeals. His primary contention is that his trial and conviction on
count 1 following the trial court’s acceptance of his plea of guilty to count 2, a lesser
included offense of count 1, violated the double jeopardy clauses of the federal and state
Constitutions. Alternatively, he claims that his conviction for count 2 must be dismissed
because it is a lesser included offense of count 1. Defendant also asserts claims of
instructional error and ineffective assistance of counsel.
We shall modify the judgment to dismiss defendant’s conviction on count 2, and
affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
At his arraignment on December 15, 2011, defendant indicated that he wanted to
enter guilty pleas to both counts of first degree burglary (counts 2 & 3). The prosecutor
cautioned that “[b]y . . . pleading guilty to Count 2, he’s essentially admitting to the
enhancement of the [section] 220, which is a lifetime -- it’s basically life -- life -- a life
sentence. So by doing that, I just want to make sure that [defendant] understands that,
that he’s already -- one of the enhancements for the life sentence is in play now, that if he
gets convicted on that [section] 220, it’s an automatic life sentence. I mean that is my
plan to convict him on that, but I just want to make sure that he understands that what
he’s doing right now is essentially getting to the first step of that enhancement. It’s very
unusual for people to do this this soon.” Defendant said he understood what the
prosecutor had said and confirmed that he had discussed the matter with his trial counsel.
After advising defendant of the consequences of his pleas, the trial court asked the
prosecutor to set forth a factual basis for counts 2 and 3. The prosecutor recited the
following factual basis for count 2: “On September 2nd, 2011, the defendant entered the
home of the victims, which is located in Tracy, California. . . . When he entered the
home, he had the intent to commit the [sections] 220 or 261(a)(2) [(forcible rape)]. [¶]
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Again, Judge, [defendant] shouldn’t be pleading to this right now. When he entered the
home, he attacked the victim in this matter, took off her underwear. She screamed. He
attacked her. He struck her. She left the apartment.” The trial court found there was a
factual basis for counts 2 and 3, accepted defendant’s guilty pleas as to those counts, and
set count 1 for trial.
Trial on count 1 commenced on February 14, 2012. The following evidence was
adduced during the prosecution’s case-in-chief: At approximately 5:00 a.m. on
September 2, 2011, Jane Doe was asleep with her nine-month-old baby when she heard a
sound coming from the bathroom of her one bedroom apartment. Believing her
boyfriend and father of her baby had returned from out of town, she went to the bathroom
and called out, “Can I help you?” She pulled on the door knob, but the person inside the
bathroom pulled the door shut. At that point, her baby began to cry, and she turned to
return to her bedroom. As she did so, the person inside the bathroom, later identified as
defendant, came up behind her and pushed her face down on her bed. He then straddled
her as she lay on her back and demanded money. Doe told him she did not have any
money and attempted to grab her cell phone. Defendant told her he had a gun and
threatened to kill her if she reached for anything else. Doe kicked, screamed, and bit
defendant, and defendant punched her in the head four times. Defendant continued to
demand money, and Doe explained she was unemployed and did not have any money.
Defendant remarked, “You got something in here,” and when Doe assured him she did
not, defendant said, “Well, you’re gonna give me something.” He then motioned to unzip
his pants, and Doe kicked him in the genitals. Defendant removed Doe’s underwear,
pulled her toward him by her legs, and slid his hand up her thigh toward her vagina. He
did not touch her vagina because she fought him off. Defendant eventually stopped and
ran out of the apartment. At one point, Doe asked defendant if he was “going to rape me
in front of [my] baby?” Defendant said he did not want to hurt her baby. Defendant
never said he was going to rape her.
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When defendant left, Doe called 911, and police were dispatched to her apartment
at approximately 5:50 a.m. When they arrived, Doe was hysterical and shaking. Doe’s
bed was unmade, and there was a pair of white underwear on the floor next to the bed.
There were muddy footprints outside the bathroom window, inside the apartment leading
from the bathroom to the bedroom, and leading from Doe’s apartment to defendant’s
nearby apartment. Mud also was smeared on the bed sheets. Defendant’s fingerprints
were found on the exterior of the bathroom window and on the interior bathroom door
handle. Doe had scratch marks on the left side of her face and neck and injuries to her
upper and lower lips.
A few days prior to the attack, defendant asked Doe where her boyfriend was, and
she told him that he was in Chicago. Defendant asked her when her boyfriend would
return, and she said she did not know. Defendant told Doe that he had his eye on her for
quite some time.
At the close of the prosecution’s case-in-chief, the transcript of the prior
proceeding during which defendant entered his guilty pleas to counts 2 and 3 was
admitted into evidence, and a portion of that transcript, including the factual basis for
count 2, was read to the jury.
Defendant testified in his defense at trial and confirmed much of Doe’s testimony
concerning his entry into the apartment, the subsequent struggle, including punching Doe
in the head multiple times, and his demands for money. He denied that he intended to
sexually assault her and said that he only was looking for money or something of value.
He pushed Doe onto the bed because he thought she was “running for a weapon or a
phone.” He denied ever getting on top of Doe or being on the bed, and when asked about
the mud on the bed sheets, he said he used his feet to block her kicks while she was on
the bed. He admitted Doe’s “underwear got pulled down,” but denied that he did so
intentionally, stating that his “hand may have pulled her underwear while [he was] trying
to get away from her.” As for Doe’s claim that he slid his hand up her thigh toward her
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vagina, defendant said that his arm rubbed against her thigh as he was knocking her legs
away. Defendant knew that Doe had a baby and that her boyfriend was not around but
denied telling her he was interested in her a few days before the incident. Rather, he
asked her about her boyfriend and told her to have her boyfriend call him. Another man
“initiated something with her and . . . was talking to her while she was walking away.”
When asked why he did not leave after Doe told him she had no money, he said he tried
to leave but “she was stead[ily] kicking and punching and grabbing me.” Defendant was
in Doe’s apartment for 10 to 15 minutes.
DISCUSSION
I
Defendant’s Continued Prosecution for Assault with Intent to Commit Rape During the
Commission of a First Degree Burglary (Count 1) Following His Plea of Guilty to First
Degree Burglary as Charged in Count 2 Did Not Violate Double Jeopardy
Defendant claims that “the trial court’s acceptance of his plea of guilty to first
degree burglary of Jane Doe as charged in count 2 (a lesser included offense of count 1)
barred his subsequent trial and conviction of count 1 as a violation of double
jeopardy . . . .” As we shall explain, double jeopardy is not implicated here.
“The double jeopardy clause of the Fifth Amendment to the Unites States
Constitution guarantees that no person shall ‘be subject for the same offense to be twice
put in jeopardy of life or limb,’ and is made applicable to the states through the due
process clause of the Fourteenth Amendment. [Citation.] [¶] Protection against double
jeopardy is also embodied in article I, section 15 of the California Constitution, which
declares that ‘[p]ersons may not twice be put in jeopardy for the same offense.’ ”
(People v. Fields (1996) 13 Cal. 4th 289, 297-298.) While defendant is correct that first
degree burglary and assault with intent to commit rape during the commission of a first
degree robbery constitute the “same offense” for purposes of double jeopardy (see People
v. Bright (1996) 12 Cal. 4th 652, 660 [“greater and lesser included offenses constitute the
‘same offense’ for purposes of double jeopardy”], overruled on other grounds in People
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v. Seel (2004) 34 Cal. 4th 535, 550, fn. 6; People v. Dyser (2012) 202 Cal. App. 4th 1015,
1021 [first degree burglary is lesser included offense of assault with intent to commit rape
during the commission of a first degree burglary]), the state’s continued prosecution of
defendant following his guilty plea did not violate double jeopardy.
The double jeopardy clause does not prohibit the state from prosecuting a
defendant for multiple offenses in a single prosecution. (Ohio v. Johnson (1984) 467
U.S. 493, 500 [81 L. Ed. 2d 425, 434].) It protects against a second prosecution for the
same offense after acquittal, a second prosecution for the same offense after conviction,
and multiple punishments in successive proceedings for the same offense. (Id. at pp.
497-498.)
The United States Supreme Court’s decision in Ohio v. Johnson is instructive.
There, the defendant was indicted for four offenses arising from the same incident and
pleaded guilty to two of the offenses--involuntary manslaughter and grand theft. (Ohio v.
Johnson, supra, 467 U.S. at p. 494.) Thereafter, the trial court granted the defendant’s
motion to dismiss the other two more serious charges--murder and aggravated robbery--
“on the ground that because of his guilty pleas, further prosecution on the more serious
offenses was barred by the double jeopardy prohibitions of the Fifth and Fourteenth
Amendments.” (Ibid.) The United States Supreme Court disagreed, concluding that
“prosecuting [the defendant] on the two more serious charges would not constitute the
type of ‘multiple prosecution’ prohibited by the Double Jeopardy Clause.” (Ibid.) The
court explained that “[n]o interest of [the defendant] protected by the Double Jeopardy
Clause is implicated by continuing prosecution on the remaining charges brought in the
indictment. Here [the defendant] offered only to resolve part of the charges against him,
while the State objected to disposing of any of the counts against [defendant] without a
trial. [The defendant] has not been exposed to conviction on the charges to which he
pleaded not guilty, nor has the State had the opportunity to marshal its evidence and
resources more than once or to hone its presentation of its case through a trial. The
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acceptance of a guilty plea to lesser included offenses while charges on the greater
offenses remain pending, moreover, has none of the implications of an ‘implied acquittal’
which results from a verdict convicting a defendant on lesser included offenses rendered
by a jury charged to consider both greater and lesser included offenses. [Citations.]
There simply has been none of the governmental overreaching that double jeopardy is
supposed to prevent. On the other hand, ending prosecution now would deny the State its
right to one full and fair opportunity to convict those who have violated its laws.
[Citation.]” (Id. at pp. 501-502.)
The court’s reasoning in Ohio v. Johnson is equally applicable here, where
defendant offered to plead guilty to counts 2 and 3 with the understanding that he would
thereafter be tried on count 1. Defendant had not been exposed to conviction on count 1
prior to his trial on the same. Nor has there been any of the governmental overreaching
that double jeopardy is supposed to prevent. Accordingly, we hold that defendant’s
continued prosecution on count 1 following his plea of guilty to count 2 did not violate
double jeopardy.
II
Defendant’s Conviction for First Degree Burglary as Charged in Count 2 Must Be
Dismissed Because First Degree Burglary Is a Lesser Included Offense of Assault with
Intent to Commit Rape During the Commission of a First Degree Burglary
Defendant contends, and the People agree, that defendant’s conviction for first
degree burglary as charged in count 2 must be dismissed because first degree burglary is
a lesser included offense of assault with intent to commit rape during the commission of a
first degree burglary. We agree and shall dismiss count 2.
“In California, a single act or course of conduct by a defendant can lead to
convictions ‘of any number of the offenses charged.’ [Citations.] But a judicially created
exception to this rule prohibits multiple convictions based on necessarily included
offenses. [Citations.]” (People v. Montoya (2004) 33 Cal. 4th 1031, 1034.)
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As previously discussed, first degree burglary is lesser included offense of assault
with intent to commit rape during the commission of a first degree burglary. (People v.
Dyser, supra, 202 Cal.App.4th at p. 1021.) Accordingly, we will dismiss count 2.
III
Any Error in Failing to Instruct the Jury on First Degree Burglary as a Lesser Included
Offense of Assault with Intent to Commit Rape in the Commission of a First Degree
Burglary Was Harmless
Defendant next contends that the trial court erred in failing to sua sponte instruct
the jury on first degree burglary as a lesser included offense of assault with intent to
commit rape in the commission of a first degree burglary. As we shall explain, any error
was harmless.
“ ‘It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case. [Citations.]’ [Citation.] ‘That
obligation has been held to include giving instructions on lesser included offenses when
the evidence raises a question as to whether all of the elements of the charged offense
were present [citation], but not when there is no evidence that the offense was less than
that charged.’ [Citation.]” (People v. Smith (2013) 57 Cal. 4th 232, 239.) Assuming for
argument’s sake that the trial court erred in failing to instruct the jury on first degree
burglary as a lesser included offense of assault with intent to commit rape during the
commission of a first degree burglary, we conclude that any such error was harmless.
We review an erroneous failure to instruct on lesser included offenses for
prejudice according to the standard in People v. Watson (1956) 46 Cal. 2d 818, 836.
(People v. Beltran (2013) 56 Cal. 4th 935, 955.) “ ‘[U]nder Watson, a defendant must
show it is reasonably probable a more favorable result would have been obtained absent
the error.’ [Citation.]” (Ibid.) “[T]he Watson test for harmless error ‘focuses not on
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what a reasonable jury could do, but what such a jury is likely to have done in the
absence of the error under consideration. In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.’ [Citations.]” (Id. at p. 956, italics omitted.)
While the jury in this case was not instructed on the lesser included offense of first
degree burglary, it was instructed on the lesser offense of simple assault. Thus, contrary
to defendant’s assertion, the jury was not left with an all or nothing proposition. Had the
jury believed that defendant did not intend to rape Doe, it could have found him guilty of
the lesser offense of simple assault. It did not. Moreover, the evidence defendant
intended to rape Doe is strong. He knew Doe’s boyfriend was gone when he entered her
apartment; he entered the apartment early in the morning when Doe was likely to be
home; when Doe told defendant she did not have any money, he told her she was “gonna
give [him] something”; there was mud smeared on the bed sheets indicating defendant,
who had muddy shoes, had been on the bed; defendant pulled down Doe’s underwear;
Doe’s underwear was on the floor when the police arrived; defendant remained in the
apartment after Doe told him she did not have any money; and he did not take anything
when he left. Although defendant testified that he accidentally pulled Doe’s underwear
down and denied intending to rape her, such evidence was relatively weak when
compared to the evidence he did intend to rape Doe cited above.
Given the evidence and the jury’s failure to find defendant guilty of the lesser
offense of simple assault, we find that there is no reasonable probability defendant would
have received a more favorable result at trial had the jury been instructed on the lesser
included offense of first degree burglary.
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IV
Defendant Has Not Demonstrated That but for Counsel’s Alleged Errors, He Would
Have Obtained a More Favorable Result at Trial
Defendant argues that his attorney rendered ineffective assistance “by failing to
object to the factual-basis statement proffered by the prosecutor -- which admitted all the
elements of count 1 -- either at the time it was made or later when it was introduced [into]
evidence at the trial on count 1.” We need not determine whether counsel’s alleged
errors amounted to ineffective assistance because defendant has not demonstrated a
reasonable probability that but for counsel’s error, the result would have been more
favorable to him. (See Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L. Ed. 2d
674, 698 (Strickland).)
After advising defendant of the consequences of his guilty pleas, the trial court
asked the prosecutor for a “factual basis . . . as to Count 2 and Count 3.” The prosecutor
recited the following factual basis as to count 2: “On September 2nd, 2011, the
defendant entered the home of the victims, which is located in Tracy, California. . . .
When he entered the home, he had the intent to commit the 220 or 261(a)(2). [¶] . . .
When he entered the home, he attacked the victim in this matter, took off her underwear.
She screamed. He attacked her. He struck her. She left the apartment.” Defendant’s
trial counsel did not object to the factual basis, and the trial court found there was a
factual basis for defendant’s pleas to counts 2 and 3. Thereafter, defendant pleaded guilty
to counts 2 and 3. The transcript containing the factual basis for defendant’s guilty plea
to count 2 was admitted into evidence at his trial on count 1 and was referenced by the
prosecutor during his opening statement, cross-examination of defendant, and closing
argument.
Defendant first contends that his trial counsel’s conduct was so egregious as to
constitute a complete abandonment under the United States Supreme Court’s decision in
United States v. Cronic (1984) 466 U.S. 648 [80 L. Ed. 2d 657] (Cronic).) “Under Cronic,
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if defense counsel ‘entirely fails to subject the prosecution’s case to meaningful
adversarial testing, then there has been a denial of Sixth Amendment rights that makes
the adversary process itself presumptively unreliable,’ and the conviction must be
reversed without further prejudice analysis. (Id. at p. 659.) ‘A complete denial of
counsel at a critical stage of the proceedings’ is sufficient to trigger the Cronic
presumption of prejudice. (People v. Benavides (2005) 35 Cal. 4th 69, 86.) ‘But when
the defendant is represented by counsel, the [Cronic] presumption of prejudice will only
stand when counsel entirely failed to subject the prosecution’s case to meaningful
adversarial testing. (Bell v. Cone (2002) 535 U.S. 685, 695; Cronic, at p. 659.)’
(Benavides, at p. 86.) Otherwise, ‘specific errors and omissions’ by trial counsel must
generally be litigated as ineffective assistance of counsel claims under Strickland.
(Cronic, at p. 657, fn. 20.)” (People v. Banks (2014) 59 Cal. 4th 1113, 1169-1170
(Banks).)
In Banks, the defendant’s trial counsel told the jury during her opening statement
that the evidence would show that her client admitted to being present at the scene of the
murder he was charged with committing but denied shooting the murder victim or raping
a second victim. (Banks, supra, 59 Cal.4th at pp. 1168-1169.) After being advised that
the prosecutor did not intend to introduce the defendant’s confession, defense counsel did
not persist, and during closing argument reminded the jury that some of the evidence the
parties discussed during their opening statements was not presented and that “ ‘[w]hat we
said in opening statements and what we say now is not evidence in the case. What came
from the stand is the evidence in the case.’ ” (Id. at p. 1170.) “Furthermore, counsel did
not concede any critical element of the . . . murder, the robbery special circumstance, the
attempted murder, or the rape charges.” (Ibid.) Our Supreme Court held that the
“defendant’s ineffective assistance of counsel claim must be analyzed under Strickland
because his ‘argument is not that his counsel failed to oppose the prosecution throughout
the . . . proceeding as a whole, but that his counsel failed to do so at specific points.’
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(Bell v. Cone, supra, 535 U.S. at p. 697; see In re Avena (1996) 12 Cal. 4th 694, 727-
728.)” (Ibid.) The same is true here.
In the present case, defendant’s trial counsel failed to object when (1) the
prosecutor included factual allegations not contained in the information and unnecessary
to defendant’s plea in his recitation of the factual basis for count 2. He also failed to
object when the prosecutor introduced the transcript containing the factual basis for count
2 at the trial on count 1 and attempted to use defendant’s failure to object to the same to
argue that defendant admitted removing Doe’s underwear and intending to rape her.
Contrary to defendant’s assertion, however, defense counsel’s failure to object to the
factual statement did not amount to an admission of the truth of the factual allegations
recited by the prosecutor as a matter of law. (See People v. French (2008) 43 Cal. 4th 36,
50-51.)2 While the prosecutor argued that such was the case, defense counsel never
conceded those “facts” at defendant’s trial on count 1.3 To the contrary, defense counsel
argued defendant was not guilty of count 1 because he did not intend to rape Doe.
During his opening statement, he told the jury that “[t]his case is about what
[defendant’s] intent was” and asserted that the evidence would not show that defendant
intended to rape Doe. During his direct examination of defendant, he elicited testimony
that defendant did not intend to remove Doe’s underwear or sexually assault her in any
2 For this reason we reject defendant’s claim that “[t]he admissions made . . . in
connection with [defendant’s] plea of guilty to count 2, . . . were obtained in violation of
his constitutional rights to trial by jury, to confrontation, and against self-incrimination.”
As just discussed, the failure to object to the factual basis did not amount to an admission.
(People v. French, supra, 43 Cal.4th at pp. 50-51.)
3 The prosecutor’s argument was essentially that defendant’s failure to object amounted
to an admission under Evidence Code section 1221, the adoptive admission exception to
the hearsay rule. Evidence Code section 1221 provides: “Evidence of a statement
offered against a party is not made inadmissible by the hearsay rule if the statement is one
of which the party, with knowledge of the content thereof, has by words or other conduct
manifested his adoption or his belief in its truth.”
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way, chose Doe’s apartment because the window was open, and entered the apartment
intending to steal money or other valuables. During his closing argument, defense
counsel argued defendant did not intend to rape Doe, emphasizing defendant’s repeated
demands for money and his explanation that his hand got caught on Doe’s underwear
during the struggle. He also suggested that defendant’s hands were at his waist because
he was attempting to protect his genitals from Doe’s kicks and not because he was
attempting to unzip his pants.
Because this is not a case where defense counsel entirely failed to subject the
prosecution’s case to meaningful adversarial testing, defendant’s ineffective assistance of
counsel claim must be analyzed under Strickland. (Banks, supra, 59 Cal.4th at p. 1170.)4
In order to demonstrate prejudice under Strickland, defendant must show that there
is a reasonable probability that, but for defense counsel’s unprofessional errors, the result
of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694.)
Where no prejudice showing has been made, we need not determine whether counsel’s
performance was deficient. (Id. at p. 697.)
At trial, defendant admitted many of the factual allegations contained in the
prosecutor’s factual basis, including entering the apartment, pushing Doe onto the bed,
striking Doe, and pulling down Doe’s underwear. Moreover, there was strong evidence
defendant intended to do more than just steal money or valuables--he knew Doe’s
boyfriend was gone when he entered her apartment, he had previously stated he had his
eye on her, he entered the apartment at a time Doe would likely be home, he failed to
4 As defendant points out, the “Cronic exception” was applied where defense counsel
conceded during argument that there was no reasonable doubt as to the only factual issues
in dispute, and therefore conveyed to the jury that counsel believed his client to be guilty.
(United States v. Swanson (9th Cir. 1991) 943 F.2d 1070.) As detailed above, nothing
comparable occurred here.
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leave after Doe told him she had no money, he did not take anything when he left, there
was mud smeared on the bed sheets indicating defendant had been on the bed, and Doe’s
underwear was on the floor next to the bed when the police arrived. On this record, we
find there is no reasonable probability that defendant would have obtained a more
favorable result at trial had the jury not learned about the factual basis given by the
prosecutor for count 2 and defendant’s failure to object thereto.
We reach the same conclusion with respect to defendant’s assertion that his trial
counsel was ineffective in failing to object when the prosecutor repeatedly asked
defendant whether he believed Doe was a “liar” or was “lying” when she testified at trial.
These isolated omissions do not fall within the Cronic exception; thus, they are subject to
the Strickland analysis, and for the reasons set forth above, we conclude there is no
reasonable probability that but for counsel’s failure to object to the prosecutor’s
challenged questioning of defendant, the result would have been more favorable to him.
Accordingly, defendant’s ineffective assistance of counsel claims fail.
V
Cumulative Error
Finally, defendant contends the cumulative effect of the alleged errors was
prejudicial. The premise behind the cumulative error doctrine is that while a number of
errors may be harmless taken individually, their cumulative effect requires reversal.
(People v. Bunyard (1988) 45 Cal. 3d 1189.) Any of the potential errors identified above
“were harmless, whether considered individually or collectively. Defendant was entitled
to a fair trial but not a perfect one. [Citations.]” (People v. Cunningham (2001) 25
Cal. 4th 926, 1009.)
DISPOSITION
The judgment is modified to dismiss defendant’s conviction on count 2 (first
degree burglary). As modified, the judgment is affirmed. The trial court is directed to
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prepare an amended abstract of judgment and forward a copy of the amended abstract to
the Department of Corrections and Rehabilitation.
BLEASE , J.
We concur:
RAYE , P. J.
MURRAY , J.
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