The People v. Scott CA2/1 ( 2013 )

Filed 9/25/13 P. v. Scott CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B238322
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA085350)
v.
BRAD SCOTT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Joan
Comparet-Cassani, Judge. Affirmed in part, reversed in part.
Dennis A. Fischer for Defendant and Appellant
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Brad Scott appeals from the judgment following a jury trial in which he was
convicted of felony boating under the influence of alcohol in violation of Harbors and
Navigation Code section 655, subdivision (f). The principal issues at trial were whether
Scott was piloting the boat when it crashed severely injuring his passenger and, if so,
whether he was piloting the boat under the influence of alcohol. On appeal, Scott
contends the trial court committed reversible errors in certain of its evidentiary rulings,
jury instructions and verdict forms. He also contends the court committed reversible
sentencing errors.
We conclude that even if the court committed the alleged guilt-phase errors, they
do not singly or in combination require reversal of Scott’s conviction. We agree with the
parties that the court erred in its belief that it lacked discretion to strike the great bodily
injury enhancements or their punishments. Therefore, we affirm the conviction, vacate
the sentence and remand the cause for resentencing.
FACTS AND PROCEEDINGS BELOW
At approximately 1:45 in the morning, a dinghy traveling between 10 and
20 knots1 in a 5 knot speed zone smashed into the side of a well-lit, 43-foot white sailboat
anchored in a crowded harbor at Catalina Island.
Two men were in the dinghy: Brad Scott, its owner, and Rel Vrooman, his friend.
Both men were unconscious when the sailboat’s owners came to their aid. Vrooman
suffered a head injury requiring surgery and lay in a medically-induced coma for a month
and a half. Vrooman also broke his collarbone, scapula, left arm and elbow and all of his
ribs. His spleen had to be removed and he lost most of his eyesight. Scott suffered only
minor injuries.
1
A knot equals 1.15077945 miles per hour. At the speed the dinghy was traveling,
knots and miles-per-hour are roughly the same.
2
A. The Prosecution’s Case.
The prosecution charged Scott with violating Harbors and Navigation Code
section 655, subdivision (f) 2 on the theory that Scott was piloting the boat at the time of
the accident, that he was intoxicated, that the boat was exceeding the harbor speed limit
and that his conduct was the proximate cause of Vrooman’s injuries. In support of this
theory, the prosecution introduced the following evidence.
1. Evidence that Scott was piloting the boat.
Marissa Brown, one of the owners of the sailboat, was the first person to reach
Vrooman and Scott. She tied their dinghy to her boat, climbed into the dinghy and shut
off the motor. She testified that she believed Scott was sitting on the floor of the dinghy
on the left side in front of the rear seat and that Vrooman was lying on his back on the
dinghy’s right pontoon. She conceded, however, that “I may have my directions screwed
up by now.”
Marissa’s husband, David Brown, contradicted Marissa’s testimony as to the
positions of Scott and Vrooman. He testified Scott was seated at the center console bent
at the waist and neck. Vrooman was “laid out” on the left pontoon of the dinghy.
Steve Sturdivant, a paramedic, supported David Brown’s testimony. Sturdivant
testified that when he arrived at the scene Vrooman was lying on the “left bow portion of
the boat.” Scott was slumped over on the floor of the dinghy. “He was definitely not in
the driver’s seat” when Sturdivant arrived at the scene. Sturdivant also testified the speed
limit in the harbor where the accident occurred was 5 knots.
A helicopter transported both men to Harbor UCLA Hospital.
2
Harbors and Navigation Code section 655, subdivision (f) states in relevant part
that it is unlawful to “operate any vessel . . . while under the influence of an alcoholic
beverage . . . and while so operating, do any act forbidden by law, or neglect any duty
imposed by law in the use of the vessel . . . which act or neglect proximately causes
bodily injury to [another].”
3
Vrooman’s son, Tyler, testified that he went to the hospital soon after his father
and Scott arrived there. He saw Scott on a gurney and asked him what happened. Scott
replied: “We were going too fast and I hit something.” Tyler then asked Scott: “So you
hit it, it did not hit you?” Scott replied, “Yes.” On cross-examination Tyler reiterated his
testimony that Scott said “I hit it,” not “we hit it.” He said that the latter statement
attributed to him in a sheriff’s report was misreported. Tyler also testified that Scott told
him that when his father wakes up Tyler should tell him that “he shouldn’t say who was
driving the boat . . . or to say that he doesn’t remember.”
Vrooman’s daughter, Rachel, testified that she was visiting her father in the
hospital a few days after the accident when she was approached by a woman who said
that her name was Jill and that she was Scott’s girlfriend. Jill told Rachel that she was
sorry about what happened to Rachel’s father. Then Jill said: “It is important that when
your father wakes up he says that he doesn’t remember who was driving the boat to the
police.”
Rachel further testified that a few days after meeting Jill, she received a telephone
call from Scott. After expressing his sorrow about what happened to Rachel’s father,
Scott told her: “It is important that if the police call you or contact you to say that your
dad says that he doesn’t remember who was driving the boat.”
Vrooman’s friend, Yvette Harbor, told the jury that on one of her visits to
Vrooman in the hospital Vrooman told her that Scott had been to see him and told him
that if anyone asked about the accident to say he can’t remember. Harbor testified that
Vrooman told her that Vrooman “wasn’t driving the boat.”
When Vrooman took the stand he testified on direct examination that he believed
he told Harbor he was not driving the boat. He also testified that he had no present
memory of the accident.
The prosecution’s accident reconstruction expert, Dr. Marc Firestone, testified that
Vrooman could not have been piloting the dinghy at the time of the accident. He based
his opinion on the severity and location of Vrooman’s injuries—severe trauma to the left
4
side of his chest, his spleen and fractures primarily on the left side of his skull—which,
he believed, could only have occurred by Vrooman’s direct contact with a hard surface,
such as the side of the sailboat, at a high rate of speed. If Vrooman had been seated at the
dinghy’s control console when the dinghy hit the side of the sailboat, his body would
have struck the steering wheel and rebounded to the aft end of the boat. There was no
way Vrooman could have wound up near the bow of the boat where he was found.
Firestone further testified that assuming Vrooman had been standing at the boat’s
console, he still could not have suffered the injuries to the left side of his head and chest.
He would have flipped over the console and landed in the well of the boat between the
middle and front seats. In contrast, Firestone testified, the location of Scott’s body
immediately after the accident and his relatively minor injuries were consistent with his
being seated at the control console when the collision occurred.
2. Evidence that Scott was under the influence of alcohol when
the crash occurred.
Marissa Brown, one of the sailboat’s owners who rescued Scott and Vrooman,
testified that she could smell alcohol on their breath as soon as she got within a few feet
of them.
The hospital records showed that Scott’s whole blood/alcohol level at
approximately 5:00 a.m., a little over three hours after the collision, was between .15
and .23.
A trauma surgeon at the hospital testified that Scott’s blood/alcohol level was a
concern to the trauma team and they decided to keep Scott at the hospital under
observation until he “sober[ed] up.”
An expert on the effects of alcohol on human mental capacity, Dr. Henry
Greenberg, testified that piloting a boat is a “divided attention task.” Most people are
impaired in their ability to perform divided attention tasks when their blood/alcohol level
reaches .08 and all people are impaired “at least [as to] mental capability by the time they
reach a .10.” Greenberg stated that an individual of Scott’s weight who, at approximately
5
2:00 a.m., was piloting a boat at no less than twice the speed limit and crashed into a
43-foot white sailboat with its lights on and whose blood/alcohol level was between
.15 and .23 approximately three hours later would have been “impaired by alcohol”
at the time of the crash.
B. The Defense Case.
1. Evidence that Vrooman was piloting the boat.
Dr. Kenneth Solomon, an accident reconstruction expert, testified for the defense.
Based on the nature and location of Vrooman’s injuries and Marissa Brown’s testimony
that after the accident Vrooman came to rest on the right side of the boat Solomon
concluded that Vrooman was standing and piloting the boat when the accident occurred.
Solomon testified that Vrooman’s chest injuries were consistent with his flipping over the
console and striking the top of the steering wheel. His head injuries were consistent with
his head hitting the hard top portion of the front seat. His body coming to rest on the
right side pontoon, as testified to by Marissa Brown, was consistent with him standing
behind the dinghy’s steering wheel (which is on the right side of the dinghy) and
“project[ing] forward.” Solomon acknowledged that if Vrooman had come to rest on the
dinghy’s left pontoon with his head toward the front, as described by the sailboat’s
owner, David Brown, and the paramedic, Sturdivant, he might change his mind as to
Vrooman’s location at the time of the accident.
Scott attempted to support Solomon’s testimony with the testimony of James
Jones who accompanied Scott and Vrooman on trips around Avalon in the dinghy the day
before the accident. Jones would have testified that Vrooman piloted the dinghy on some
of these trips and that he stood while doing so especially when the dinghy approached a
certain speed and its bow would rise. (Witnesses testified the dinghy was traveling
between 10 and 20 knots at the time of the accident.) Vrooman’s habit of standing to see
over the rising bow would support Solomon’s conclusion that at the time of the accident
Vrooman was piloting the dinghy in a standing position. The court sustained the
prosecution’s objections to Jones’s testimony as to the speed of the boat when the bow
6
would rise and his testimony that when the bow would rise it was Vrooman’s habit to
stand while piloting the boat.
At a sidebar conference the court also disallowed the testimony of Oliver Grani,
a retired deputy sheriff, who would have told the jury that he advised Scott “to tell
Mr. Vrooman’s family, and Mr. Vrooman when he wakes up, if he does not know the
answer to a question it is better for him simply to state I don’t remember.”
2. Exclusion of evidence regarding Scott’s intoxication.
Scott sought to introduce the expert opinion of Dr. Arthur Kowell, a neurologist,
who would have testified that the results of neurological tests performed on Scott at the
hospital and the observational notes in his chart by hospital staff were inconsistent with
Scott having a blood/alcohol level between .15 and .23 as reported in the hospital’s
records. In other words, based on the neurological examinations and observations,
Kowell was of the opinion that Scott was not intoxicated at the time he was admitted to
the hospital. Kowell conceded that he could not say whether or not Scott was intoxicated
at the time of the accident nor could he say whether Scott’s unconsciousness immediately
following the accident was the result of alcohol intoxication or a concussion, although he
believed the latter was more likely.
After a hearing under Evidence Code section 402, the court disallowed Kowell’s
testimony. The court ruled that Kowell’s testimony was irrelevant because he admitted
that he could not determine whether Scott was under the influence of alcohol at the time
of the accident.
C. The prosecution’s rebuttal.
Dr. Firestone disputed Dr. Solomon’s opinion that Vrooman was piloting the
dinghy at the time of the accident. Firestone testified that neither Vrooman’s injuries nor
the position of his body on the boat’s pontoon were consistent with Scott being the pilot.
D. Conviction and sentencing.
A jury convicted Scott of felony boating under the influence in violation of
Harbors and Navigation Code section 655, subdivision (f), and found true the
7
enhancement allegations of great bodily injury under Penal Code section 12022.7,
subdivisions (a) and (b). The court sentenced Scott to the midterm of two years on the
substantive offense plus five years under Penal Code section 12022.7, subdivision (b).
The court stayed the punishment under subdivision (a) of the statute.
Scott filed a timely appeal.
DISCUSSION
I. ANY EVIDENTIARY ERRORS THE COURT COMMITTED
WERE HARMLESS.
Scott contends that the court erred by excluding Dr. Kowell’s testimony regarding
Scott’s intoxication, by refusing to allow him to show the jury a computer simulation of
the accident prepared by his expert, Dr. Solomon, by allowing the prosecutor to make
continuous groundless objections disrupting Solomon’s testimony, by overruling his
objection to a hypothetical question posed to a prosecution expert and by excluding the
testimony of Jones, the friend of Scott and Vrooman, who rode in the dinghy with them
the day prior to the accident. He also argues that the court erred in barring the testimony
of retired deputy sheriff Grani who would have testified that he gave Scott certain
advice to pass on to Vrooman regarding what Vrooman should say about the accident.
(See pages 6-7, ante.)
With the exception of Grani’s testimony, which bears on our harmless error
analysis, we will proceed directly to the issue of prejudicial error without addressing the
merits of the court’s evidentiary rulings. As will be seen, any errors in those rulings,
individually or collectively, were harmless because “it is not reasonably probable” that
Scott would have obtained a more favorable result had they not occurred. (See People v.
Watson (1956) 46 Cal. 2d 818, 836; cf. People v. Corona (1989) 211 Cal. App. 3d 529, 535
[the applicable harmless error standard “makes it entirely unnecessary” to decide the
merits of the defendant’s argument].)
8
A. Evidence As To Who Was Piloting The Dinghy When It
Crashed.
A principal issue at trial was whether Scott or Vrooman was piloting the dinghy at
the time of the accident. The jury heard two conflicting expert opinions on that question.
The defense expert testified that Vrooman was standing at the wheel of the dinghy when
it crashed. (See page 6, ante.)
The defense theory that Vrooman was piloting the dinghy when it smashed into
the sailboat hinged on Marissa Brown’s uncertain recollection that Vrooman ended up on
the dinghy’s right pontoon after the crash. Marissa conceded, however that “I may have
my directions screwed up by now.” Solomon, the defense accident reconstruction expert,
acknowledged that if Vrooman ended up on the dinghy’s left pontoon (the side opposite
the wheel) as testified by David Brown and Steve Sturdivant, the paramedic, it “might”
change his opinion that Vrooman was piloting the boat. Solomon also agreed that
evidence Scott wound up on the right side of the boat would be consistent with Scott
piloting the boat, not Vrooman. Thus, the evidence supporting Solomon’s opinion was
weak.
The theory that Vrooman was piloting the boat was further weakened by Scott’s
admission to Vrooman’s son Tyler that he was responsible for the accident. Tyler
testified that when he saw Scott at the hospital a few hours after the accident and
asked him what happened, Scott replied: “We were going too fast and I hit something.”
Tyler then asked Scott: “So you hit it, it did not hit you?” Scott replied: “Yes.”
Vrooman told his friend, Yvette Harbor that “he wasn’t driving the boat.” At trial
he acknowledged making that statement.
Furthermore, the jury could reasonably have found that Scott’s attempts to avoid
responsibility for the accident and to influence Vrooman’s statements about what
happened were the most telling evidence that Scott was the one piloting the boat.
Scott falsely told a deputy sheriff who came to the hospital to investigate the
accident that two friends were in the boat with him and one of these unidentified friends
was piloting. Scott also told the deputy that the sailboat was anchored in the harbor with
9
its lights off and “they didn’t see it before colliding with it.” The undisputed evidence at
trial contradicted both these statements.
Vrooman’s son and daughter and his friend Yvette Harbor testified that they were
told by Scott and his girlfriend that when Vrooman regained consciousness he should say
that he doesn’t remember who was piloting the boat.3
In an effort to counter the impression that Scott was attempting to tamper with or
suppress the evidence as to who was piloting the boat, Scott offered the testimony of
Oliver Grani, a retired deputy sheriff, who would testify that he advised Scott “to tell
Mr. Vrooman’s family, and Mr. Vrooman when he wakes up, if he does not know the
answer to a question it is better for him simply to state I don’t remember.” The court
correctly excluded Grani’s testimony because it was irrelevant. In speaking to
Vrooman’s family and friend, Scott and his girlfriend did not repeat Grani’s advice
that if Vrooman does not know the answer to a question he should say he doesn’t know
or doesn’t remember. Rather, Vrooman’s son and daughter and friend testified that Scott
and his girlfriend told them to tell Vrooman when he wakes up from his coma to say that
he doesn’t remember who was piloting the boat. The implication being that Vrooman
should say he doesn’t remember who was at the controls of the dinghy even if he does.
Given Scott’s initial lies about how the accident occurred, his subsequent
admission that he was piloting the boat when it crashed, his later attempts to influence
Vrooman’s testimony and the evidence undercutting his expert’s opinion that Vrooman
was responsible for the accident, “it is not reasonably probable” that the jury would have
reached a more favorable verdict even if the excluded evidence had been admitted.
3
The court instructed the jury that if it found Scott or his friend Jill made these
statements, it may be considered as a circumstance tending to show consciousness of
guilt.
10
B. Evidence As To Whether Scott Was Under The Influence
Of Alcohol At The Time Of The Accident.
Dr. Kowell, a neurologist, would have testified for the defense that the
neurological tests and observations of Scott performed at the hospital approximately three
hours after the accident were inconsistent with a person under the influence of alcohol.
The court disallowed this testimony because Dr. Kowell admitted that he could not say
Scott was not under the influence of alcohol at the time of the accident.
Even if the court’s ruling was erroneous it was harmless because there was
overwhelming evidence that Scott was under the influence of alcohol at the time of the
accident.
The court instructed the jury that “[a] person is under the influence of any
alcoholic beverage when as a result of drinking an alcoholic beverage his physical or
mental abilities are impaired so that he no longer has the ability to drive a vessel with the
caution characteristic of a sober person of ordinary prudence, under the same or similar
circumstances.” Dr. Greenberg testified that the mental impairments caused by alcohol
include judgment, reasoning, depth perception, visual acuity and decision making.
The evidence showed that Scott was traveling between two and four times the harbor
speed limit and crashed into the side of a 43-foot white sailboat with its lights on.
Scott’s behavior fit Dr. Greenberg’s examples of mental impairments caused by alcohol.
The court instructed the jury that it could infer from a level of .08 or more that
Scott was under the influence of alcohol at the time of the offense. The evidence
showed that even three hours after the accident Scott’s blood/alcohol level was between
.15 and .23.
Finally, although Dr. Kowell believed the assessments and observations of Scott at
the hospital were inconsistent with a blood/alcohol level between .15 and .23, neither
Dr. Kowell nor any other witness challenged the reliability of the hospital’s blood tests.
11
II. THE COURT ERRED IN FAILING TO INSTRUCT THE JURY
AS TO THE ACT FORBIDDEN BY LAW THAT SCOTT
WAS ALLEGED TO HAVE COMMITTED BUT THE
ERROR WAS HARMLESS.
The court instructed the jury in relevant part that in order to prove a violation of
Harbors and Navigation Code section 655, subdivision (f) “the following elements must
be proved: [¶] 1. A person drove a boat while under the influence of any alcoholic
beverage. [¶] 2. That person concurrently did an act which violated the law or failed to
perform a duty required by law . . . .”
The parties agree that by failing to instruct the jury on the particular “act which
violated the law” that Scott allegedly committed the court failed to instruct on an
essential element of the offense. (Cf. People v. Ellis (1999) 69 Cal. App. 4th 1334, 1339;
People v. Minor (1994) 28 Cal. App. 4th 431, 438-439.)
The error was harmless, however, because Sturdivant, the paramedic, and Marissa
Brown, one of the sailboat’s owners, testified without contradiction that the speed limit in
the harbor where the accident occurred was 5 knots and it was undisputed that the boat
was traveling at least twice that speed when it crashed. Indeed, Scott’s defense was built
on the premise that the dinghy was traveling 10 knots or more which caused the bow to
rise and Vrooman to stand up to drive. “[I]nstructional error is harmless ‘where a
reviewing court concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence.’” (People v. Mil (2012)
53 Cal. 4th 400, 417.) Thus, even under the strict standard of Chapman v. California
(1967) 386 U.S. 18, 24m the court’s instructional error was harmless because “it appears
‘beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.’” (People v. Harris (1994) 9 Cal. 4th 407, 424.)
12
III. SUBSTANTIAL EVIDENCE SHOWED THAT VROOMAN
WAS NOT AN ACCOMPLICE IN SCOTT’S DRIVING
UNDER THE INFLUENCE.
The jury found true the enhancement allegations under Penal Code
section 12022.7, subdivisions (a) and (b) that Scott personally inflicted “great bodily
injury on [a] person other than an accomplice . . . .” On appeal, Scott argues the
prosecution failed to prove beyond a reasonable doubt that Vrooman was not an
accomplice in Scott’s piloting the dinghy under the influence of alcohol. We disagree.
Initially we note that no California case has decided the issue whether the term
person “other than an accomplice” is an element of the enhancement, an affirmative
defense to the enhancement or whether the prosecution bears the burden of proving the
person was not an accomplice only where the defense gives notice that accomplice status
is an evidentiary issue. (See People v. Henley (1999) 72 Cal. App. 4th 555, 563-564
[discussing but not deciding the issue].) In any case, there is circumstantial evidence
sufficient to support the jury’s finding that Vrooman was not an accomplice.
As one court has explained, “[o]rdinarily, accomplice liability under a
coperpetrator theory or an aider and abettor theory is not associated with the crimes of
gross vehicular manslaughter and felony drunk driving because of the individual nature
of the act and mental state involved.” (People v. Verlinde (2002) 100 Cal. App. 4th 1146,
1160.) Thus, in the absence of evidence of “shared driving by two intoxicated
individuals,” the individual nature of the act of driving under the influence normally
precludes a finding that a passenger was an accomplice to the crime. (Ibid.) As
discussed above, there was substantial evidence to prove that Scott was piloting the
dinghy when it crashed. (See pages 3-5, ante.) The photograph of the dinghy shows that
it had only one set of controls, so unless Vrooman was sitting on Scott’s lap or one was
steering while the other one worked the throttle, Vrooman and Scott could not have been
simultaneously sharing the piloting of the boat.
Scott maintains that the evidence does not rule out the possibility Vrooman aided
and abetted Scott’s drunk boating because he might have “egged him on to go faster.”
13
The prosecution’s failure to rule out every conceivable scenario involving Scott and
Vrooman does not mean it failed to prove beyond a reasonable doubt that Vrooman was
not an accomplice. As the court instructed the jury, reasonable doubt is not “a mere
possible doubt; because everything relating to human affairs is open to some possible or
imaginary doubt.” There was no evidence of any other instance of Vrooman encouraging
Scott to drink alcohol before or during his piloting the dinghy nor of Vrooman urging
Scott to drive the dinghy at a high speed. Thus, there was no evidence from which the
jury could infer that Vrooman aided and abetted Scott’s drunk driving.
IV. THE EVIDENCE DID NOT REQUIRE A REFERENCE TO AN
ACCOMPLICE IN THE INSTRUCTIONS AND VERDICT FORMS.
Scott contends that the court erred in failing to instruct the jury that an
enhancement under Penal Code section 12022.7, subdivision (a) required it to find that
Vrooman was not an accomplice,4 in failing to define the term “accomplice” in the
instruction pertaining to subdivision (b) of the statute and in failing to include a finding in
the verdict forms that Vrooman was not an accomplice.
We reject these contentions because they each depend on the existence of
substantial evidence that Vrooman was an accomplice to Scott’s boating under the
influence. (People v. Barton (1995) 12 Cal. 4th 186, 201 [an instruction is only required
when there is “substantial evidence” to support it].) As discussed above, there was
substantial evidence that Vrooman was not an accomplice and there was zero evidence
that he was.
4
Scott concedes that the court included the not-an-accomplice element in its
instruction on section 12022.7, subdivision (b). Therefore the error as to section 12022.7,
subdivision (a) was harmless because the factual question posed by the omitted
instruction was necessarily resolved adversely to the defendant under the properly given
instruction as to subdivision (b). (People v. Blakeley (2000) 23 Cal. 4th 82, 89.)
14
V. THE SENTENCE MUST BE VACATED SO THAT THE TRIAL
COURT CAN EXERCISE ITS DISCRETION WHETHER TO
STRIKE THE ENHANCEMENTS OR THEIR PUNISHMENTS.
The parties agree that the court erred in believing that it had no discretion to
strike the great bodily injury enhancements under Penal Code section 12022.7 or to strike
punishments they carry and that the entire sentence must be vacated and the cause
remanded for resentencing. (Pen. Code, § 1385, subds. (a) & (c)(1); and see People v.
Jones (2007) 157 Cal. App. 4th 1373, 1378-1379; 1384.) This disposition makes it
unnecessary for us to address Scott’s remaining contentions regarding sentencing errors.
If it should become necessary, those issues may be raised at the new sentencing hearing.
DISPOSITION
The sentence is vacated and the cause is remanded for resentencing to allow
the court to consider whether the enhancements under Penal Code section 12022.7,
subdivisions (a) and (b) or the punishments they carry should be stricken. If the court
strikes the enhancements or their punishments, it shall forward an amended abstract of
judgment to the California Department of Corrections and Rehabilitation. In all other
respects the judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, Acting P. J.
We concur:
CHANEY, J
JOHNSON, J.
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