People v. Megaw CA2/1 ( 2023 )

Filed 10/26/23 P. v. Megaw CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B324731
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA109392)
v.
WESLEY BRYAN MEGAW,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Juan Carlos Dominguez, Judge. Affirmed.
Robert A. Werth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven E. Mercer and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
This is an appeal from a new sentence imposed after
defendant Wesley Bryan Megaw’s prior sentence was recalled at
the recommendation of the Secretary of the Department of
Corrections and Rehabilitation (CDCR). Defendant’s conviction
was the product of a plea bargain in which he pleaded nolo
contendere to kidnapping, second degree robbery, identity theft,
and bringing contraband into jail. Megaw agreed to serve an
aggregate prison sentence of 32 years 4 months, which included
the upper term of eight years for the kidnapping, doubled to
16 years pursuant to the “Three Strikes” law. The trial court
accepted the plea agreement and imposed the agreed-upon term.1
Several years later, in 2022, the Secretary of CDCR
recommended recall of Megaw’s sentence. After recalling
Megaw’s sentence, the resentencing court struck five 1-year
enhancements and reimposed the remainder of the original
sentence, resulting in a new aggregate term of 27 years 4 months.
On appeal, Megaw argues that amendments to Penal Code2
section 1170, subdivision (b) precluded the resentencing court
from reimposing the upper term sentence for the kidnapping
conviction. He further contends the court erred in not exercising
its discretion under section 1385, subdivision (c) to dismiss a five-
year enhancement imposed under section 667, subdivision (a) and
a one-year enhancement imposed under section 12022,
subdivision (b)(1).
1 Because the trial judge who accepted Megaw’s plea deal
was not the same judicial officer who later resentenced Megaw,
we refer to the court that accepted the plea as the “trial court”
and the other court as the “resentencing court.”
2 Undesignated statutory citations are to the Penal Code.
2
We hold that the limitations on imposing upper term
sentences in the amendments to section 1170, subdivision (b)
do not apply because the trial court imposed the upper term
sentence for the kidnapping conviction pursuant to a plea
agreement. Also, Megaw fails to demonstrate the resentencing
court erred in not dismissing the enhancements when it found
such a dismissal would endanger public safety. We thus affirm.
PROCEDURAL BACKGROUND3
We summarize only those aspects of the procedural history
relevant to this appeal.
In October 2015, the People filed an information charging
Megaw with kidnapping to commit robbery, in violation of
section 209, subdivision (b)(1) (count 1); second degree robbery, in
violation of section 211 (count 2); identity theft, in violation of
section 530.5, subdivision (a) (count 3); possession of a forged
driver’s license, in violation of section 470, subdivision (b)
(count 4); and bringing contraband into jail, in violation of
section 4573, subdivision (a) (count 5). As to counts 1 and 2, the
People alleged that, for the purpose of section 667,
subdivision (a), Megaw suffered a prior conviction for a serious
felony, and that, for the purpose of section 12022,
3 We derive our Procedural Background in part from
admissions made by the parties in their appellate briefing. (See
Williams v. Superior Court (1964) 226 Cal.App.2d 666, 668, 674
[“ ‘An express concession or assertion in a brief is frequently
treated as an admission of a legal or factual point, controlling in
the disposition of the case.’ ”]; Artal v. Allen (2003)
111 Cal.App.4th 273, 275, fn. 2 [“ ‘[A] reviewing court may make
use of statements [in briefs and argument] . . . as admissions
against the party.’ ”].)
3
subdivision (b)(1), Megaw personally used a deadly and
dangerous weapon in the commission of those two offenses. The
People further alleged for the purpose of the Three Strikes law
that Megaw had a prior serious or violent felony conviction, and
that, for the purpose of section 667.5, subdivision (b), he had
served five prior prison terms. Shortly after the People filed the
information, Megaw pleaded not guilty to all counts and denied
all special allegations.
In November 2016, the People and Megaw agreed to a plea
by which the People would amend the information to include a
violation of section 207 (kidnapping) as count 6; Megaw agreed to
plead nolo contendere to counts 2, 3, 5, and 6; the People agreed
to dismiss counts 1 (kidnapping to commit robbery) and 4
(possession of a forged driver’s license); and Megaw would serve
an aggregate prison term of 32 years 4 months, which included
the upper term sentence of eight years on count 6, doubled to
16 years pursuant to the Three Strikes law. The trial court
accepted the parties’ plea agreement and imposed the agreed-
upon aggregate prison sentence of 32 years 4 months, which
consisted of: 16 years on count 6; a one-year enhancement
pursuant to section 12022, subdivision (b)(1); a five-year
enhancement pursuant to section 667, subdivision (a); five one-
year enhancements under section 667.5, subdivision (b); two
years on count 2; one year four months on count 3; and two years
on count 5.
In February 2022, the Secretary of CDCR sent a letter to
the resentencing court recommending that it: recall Megaw’s
sentence and resentence him pursuant to section 1170.03,
4
subdivision (a)(1),4 and strike the section 667, subdivision (a)
enhancement (CDCR letter). Attached to the letter was a
cumulative case summary and evaluation report, which included
a summary of the offenses for which Megaw was committed to
state prison, Megaw’s criminal and parole history, and a
description of his conduct in prison.
Megaw filed a “Supplemental Motion In Support Of
Resentencing,” in which he reported having a traumatic
childhood, certain mental health conditions, and a history of
substance abuse.
In October 2022, the resentencing court held a hearing at
which it recalled Megaw’s sentence; struck the five one-year
section 667.5, subdivision (b) enhancements because of a change
in the law preventing the court from imposing them;5 and
reimposed the remainder of Megaw’s prison sentence, resulting in
an aggregate term of 27 years 4 months. Megaw timely appealed.
4 “Effective June 30, 2022, ‘[t]he Legislature . . .
renumbered section 1170.03 to section 1172.1, but made no
substantive changes. [Citation.]’ [Citation.]” (People v. Braggs
(2022) 85 Cal.App.5th 809, 818.) We refer to section 1172.1 when
addressing the statute governing Megaw’s resentencing.
5 This ruling is not challenged on appeal.
5
DISCUSSION
A. Senate Bill No. 567 Does Not Apply to a Sentence
That Was the Product of a Plea Agreement and Thus
Provides No Basis for Invalidating Megaw’s Upper
Term Sentence on Count 66
1. Section 1170, subdivision (b) and Senate Bill
No. 567’s amendments thereto
When the trial court had initially sentenced Megaw in
November 2016, section 1170, subdivision (b) provided in
relevant part: “When a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the choice
of the appropriate term shall rest within the sound discretion of
the court. . . . The court shall select the term which, in the court’s
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term
selected . . . .” (Stats. 2015, ch. 378, § 1 [filed with the Sec’y of
State on Sept. 30, 2015]; Cal. Const., art. IV, § 8, subd. (c)(2)
[providing that this version of § 1170 became effective on Jan. 1,
2016].)
Years later, and pursuant to section 1172.1, the Secretary
of CDCR recommended recall of Megaw’s sentence.
Section 1172.1 provides in pertinent part: “The court, in recalling
and resentencing [a defendant upon the recommendation of the
Secretary of CDCR], shall apply the sentencing rules of the
Judicial Council and apply any changes in law that reduce
sentences or provide for judicial discretion so as to eliminate
6 Megaw acknowledges that count 6 was the only offense
for which an upper term sentence was imposed.
6
disparity of sentences and to promote uniformity of sentencing.”
(See § 1172.1, subds. (a)(1)–(a)(2).)
Prior to the October 2022 resentencing hearing, Senate Bill
No. 567 (2021–2022 Reg. Sess.) (Senate Bill No. 567) amended
section 1170 effective January 1, 2022. (Stats. 2021, ch. 731,
§ 1.3 [filed with the Sec’y of State on Oct. 8, 2021]; Cal. Const.,
art. IV, § 8, subd. (c)(2) [providing that this version of § 1170
became effective on Jan. 1, 2022].) As amended by Senate Bill
No. 567, section 1170, subdivision (b) now circumscribes a trial
court’s choice among three potential sentencing terms: “When a
judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in [subdivision (b)(2)].”
(Stats. 2021, ch. 731, § 1.3 [§ 1170, subd. (b)(1)].) As relevant
here, newly-added subdivision (b)(2) in turn provides: “The court
may impose a sentence exceeding the middle term only when
there are circumstances in aggravation of the crime that justify
the imposition of a term of imprisonment exceeding the middle
term, and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial.”7 (Stats. 2021, ch. 731, § 1.3 [§ 1170, subd. (b)(2)].)
7 The statute applies a different rule to prior convictions:
“Notwithstanding paragraphs (1) and (2) [of subdivision (b)], the
court may consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction
without submitting the prior convictions to a jury.” (Stats. 2021,
ch. 731, § 1.3 [§ 1170, subd. (b)(3)].)
7
Finally, newly-added subdivision (b)(5) of section 1170
requires the trial court to “set forth on the record the facts and
reasons for choosing the sentence imposed,” and “[t]he court
may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any
provision of law.” (See Stats. 2021, ch. 731, § 1.3 [§ 1170,
subd. (b)(5)].)
2. Senate Bill No. 567 does not apply to stipulated
sentences imposed pursuant to plea agreements
Courts of Appeal are split on whether Senate Bill No. 567’s
amendments to section 1170, subdivision (b) apply to stipulated
sentences imposed pursuant to plea agreements. Division Five of
the First District and the Fifth District have held these
amendments do not apply to a stipulated sentence imposed
pursuant to a plea agreement. (See People v. Mitchell (2022)
83 Cal.App.5th 1051, 1057–1059 (Mitchell), review granted
Dec. 14, 2022, S277314; People v. Sallee (2023) 88 Cal.App.5th
330, 333–334 (Sallee), review granted Apr. 26, 2023, S278690).
Division One of the First District and the Sixth District disagree.
(See People v. Todd (2023) 88 Cal.App.5th 373, 377–381, review
granted Apr. 26, 2023, S279154; People v. Fox (2023)
90 Cal.App.5th 826, 830.) This issue is pending before our high
court.
Until we receive guidance from our high court, we conclude
that Mitchell and Sallee are better reasoned. Megaw thus fails to
demonstrate the resentencing court erred in imposing the high
term as to Megaw’s kidnapping conviction.
Megaw argues Mitchell and Sallee are “inapposite” because
in those cases, “the original sentence was imposed before [Senate
Bill No.] 567 became effective, but the opinion[s in those cases
8
were] issued after [Senate Bill No.] 567 was effective.” Yet,
Mitchell cited “well-established principles of statutory
interpretation” to determine whether amended section 1170,
subdivision (b) applies to “sentences imposed pursuant to
stipulated plea agreements” (see Mitchell, supra, 83 Cal.App.5th
at pp. 1057–1059, review granted), an analysis that would have
been unnecessary if the date of the defendant’s sentencing
hearing (i.e., prior to Senate Bill No. 567’s effective date) were
determinative. Further, upon noting that the parties had not
disputed that “Senate Bill No. 567 is retroactive to cases not yet
final on appeal,” the Sallee court remarked, “Accordingly, the
issue before us is not whether Senate Bill No. 567 applies
retroactively, but rather whether it applies at all in the context of
a stipulated plea.” (See Sallee, supra, 88 Cal.App.5th at p. 335,
fn. 3, review granted.) We thus reject Megaw’s effort to
distinguish Mitchell and Sallee based on when the resentencing
hearing occurred.
B. Megaw Fails to Demonstrate the Resentencing Court
Erred In Declining To Dismiss the One-Year and
Five-Year Enhancements Pursuant to Section 1385,
Subd. (c)
1. The trial court’s authority to dismiss enhancements
under section 1385, subdivision (c) and our standard
of review
Section 1385, subdivision (c)(1) provides for dismissal of
enhancements in the interests of justice: “Notwithstanding any
other law, the court shall dismiss an enhancement if it is in the
furtherance of justice to do so, except if dismissal of that
9
enhancement is prohibited by any initiative statute.” (§ 1385,
subd. (c)(1).)
Section 1385, subdivision (c)(2) provides guidance to the
trial court in considering whether to dismiss an enhancement:
“In exercising its discretion under . . . subdivision [(c)], the court
shall consider and afford great weight to evidence offered by the
defendant to prove that any of the mitigating circumstances in
subparagraphs (A) to (I) [of subdivision (c)(2)] are present. Proof
of the presence of one or more of these circumstances weighs
greatly in favor of dismissing the enhancement, unless the court
finds that dismissal of the enhancement would endanger public
safety.” (See § 1385, subd. (c)(2).) The statute also provides
“ ‘[e]ndanger public safety’ means there is a likelihood that the
dismissal of the enhancement would result in physical injury or
other serious danger to others.” (Ibid.)
The mitigating circumstances listed in section 1385,
subdivision (c)(2) include: “Multiple enhancements are alleged in
a single case”; “[t]he application of an enhancement could result
in a sentence of over 20 years”; “[t]he current offense is connected
to prior victimization or childhood trauma”; and “[t]he
enhancement is based on a prior conviction that is over five years
old.” (§ 1385, subds. (c)(2)(B), (c)(2)(C), (c)(2)(E), & (c)(2)(H).)
Under section 1385, subdivision (c), “if the court finds that
dismissal of an enhancement ‘would endanger public safety,’ then
the court need not consider the . . . mitigating circumstances
[listed in subdivision (c)(2)].” (See People v. Mendoza (2023)
88 Cal.App.5th 287, 296 (Mendoza).)
Section 1385, subdivision (c)(3) sets forth when a trial court
may exercise its discretion to dismiss an enhancement: “While
the court may exercise its discretion at sentencing, this
10
subdivision does not prevent a court from exercising its discretion
before, during, or after trial or entry of plea.” (§ 1385,
subd. (c)(3).) The Legislature has declared that subdivision (c)
applies to “all sentencings occurring after January 1, 2022.” (See
id., subd. (c)(7).)
We review for abuse of discretion a trial court’s refusal to
dismiss an enhancement because dismissal would endanger
public safety. (See Mendoza, supra, 88 Cal.App.5th at p. 298.)
Under that standard of review, “ ‘An exercise of discretion is
subject to reversal on appeal where no reasonable basis for the
action is shown. [Citation.]’ [Citation.]” (People v. Perez (2015)
233 Cal.App.4th 736, 742.) Furthermore, “a trial court’s factual
findings are reviewed for substantial evidence, and its
conclusions of law are reviewed de novo.” (In re White (2020)
9 Cal.5th 455, 470.) Substantial evidence exists if, reviewing the
“ ‘record in the light most favorable to the judgment[,]’ ” we
conclude “ ‘ “ ‘the circumstances reasonably justify the trier of
fact’s findings . . . .’ ” ’ ” (See People v. Alvarez (2014)
229 Cal.App.4th 761, 774 (Alvarez).)
Additionally, we are bound by the following “fundamental
principles of appellate review: (1) a judgment is presumed
correct; (2) all intendments and presumptions are indulged in
favor of correctness; and (3) the appellant bears the burden of
providing an adequate record affirmatively proving error.”
(People v. Arter (2017) 19 Cal.App.5th Supp. 1, 6.) “[A] natural
and logical corollary to” these principles is “[t]he doctrine of
implied findings[, which] requires the appellate court to infer the
trial court made all factual findings necessary to support the
judgment.” (Ibid.)
11
2. Megaw fails to show the resentencing court abused its
discretion in not dismissing the enhancements
because dismissal would endanger public safety
Megaw argues the resentencing court erred in failing to
exercise its discretion under section 1385, subdivision (c) to
dismiss the five-year enhancement imposed pursuant to
section 667, subdivision (a) and one-year enhancement imposed
pursuant to section 12022, subdivision (b)(1). Megaw claims the
court “failed to take into consideration” the following mitigating
factors in section 1385, subdivision (c)(2): “(1) multiple
enhancements were alleged”; “(2) the application of the
enhancement[s] . . . . result[ed] in a sentence of over 20 years”;
“(3) the current offense is connected to prior victimization or
childhood trauma”; and (4) one of “the enhancement[s] is based
on a prior conviction that is over five years old.” (Citing § 1385,
subds. (c)(2)(B), (c)(2)(C), (c)(2)(E), & (c)(2)(H).) Megaw also
appears to challenge whether substantial evidence supported the
resentencing court’s finding that dismissal of the enhancements
would endanger public safety.8
At the October 2022 hearing, the resentencing court agreed
with the People that there existed “an unreasonable risk” Megaw
would commit an offense—a super strike—referenced in
subdivision (c) of section 1170.18 because he perpetrated a
kidnapping to commit robbery in violation of section 209,
8 As we explain later in this part, the resentencing court
found that shortening Megaw’s sentence would endanger public
safety because there was an unreasonable risk he would commit
an offense identified in section 1170.18, subdivision (c).
12
subdivision (b)(1).9 In particular, the court remarked that the
kidnapping victim “was moved about”; regardless of whether
Megaw’s accomplice was in fact “the leader,”10 Megaw
“participated” and “aided and abetted” in the offense and “was
present during the entire time”; and the victim “was tied and . . .
terrorized . . . .” The court also stated that its finding of an
unreasonable risk that Megaw would commit such an offense was
“buttressed by the fact that, for a period of time . . . until [Megaw]
picked up this last case, he didn’t stay out of state prison for very
long.” According to the court, Megaw “continued to go back to
state prison on serious offenses[, a]nd that history is certainly a
great predictor of future conduct.”
By agreeing with the People that there was an
unreasonable risk that Megaw would commit an offense
identified in section 1170.18, subdivision (c), the resentencing
court tacitly found there was a likelihood that shortening
Megaw’s sentence would result in physical injury or other serious
danger to others, specifically, that dismissal of the enhancements
9 (See § 1170.18, subd. (c) [defining “ ‘unreasonable risk of
danger to public safety’ ” as “an unreasonable risk that the
petitioner will commit a new violent felony within the meaning of
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
of Section 667”]; § 667, subd. (e)(2)(C)(iv)(VIII) [“Any serious or
violent felony offense punishable in California by life
imprisonment or death.”]; § 209, subd. (b)(1) [“A person who
kidnaps or carries away an individual to commit robbery . . . shall
be punished by imprisonment in the state prison for life with the
possibility of parole.”].) We reiterate that as part of the plea
bargain, the People dismissed the count alleging kidnapping to
commit robbery. (Procedural Background, ante.)
10 Megaw’s accomplice is not a party to this appeal.
13
would “endanger public safety” for the purpose of section 1385,
subdivision (c), thereby obviating the need to assess the
mitigating factors listed in that provision. (See § 1385,
subd. (c)(2); see also Mendoza, supra, 88 Cal.App.5th at pp. 297–
298 [holding that “consideration of the mitigating factors in
section 1385(c)(2) is not required if the court finds that dismissal
of the enhancement would endanger public safety,” and observing
that “determination of whether dismissal would endanger public
safety . . . under section 1385(c)(2) is similar (though not
identical) to the determination of whether ‘resentencing the
petitioner would pose an unreasonable risk of danger to public
safety’ ” for the purpose of § 1170.18].)
We conclude that Megaw fails to rebut the presumption of
correctness accorded to this ruling.
Regarding the circumstances of the kidnapping, Megaw
argues, “The only information in the record is found in the CDCR
letter which mirrors the information in the probation report
which apparently was taken from police reports.” Megaw
does not assert that the court’s observations concerning this
offense are not substantiated by these documents. Indeed,
Megaw acknowledges the probation report indicates that in
March 2015: (1) Megaw and an accomplice, each armed with an
air soft pistol, ordered a clerk at a motel to give them all the
money from a cash register; (2) after obtaining approximately
$270 from the cash register, Megaw and the accomplice “escorted
the victim to [an] office”; (3) the accomplice “bound the victim’s
hands and feet with duct tape”; and (4) “[t]he two men then
ransacked the office.”
Megaw complains, “These facts were not found true beyond
a reasonable doubt after a trial or admitted by Megaw,” meaning
14
that newly-amended section 1170, subdivision (b)(2) barred the
court from relying upon them at sentencing. As explained earlier
in our Discussion, we have concluded that section 1170,
subdivision (b) does not apply to stipulated sentences imposed
pursuant to plea bargains. (See Discussion, part A.2, ante.) In
addition, at Megaw’s initial sentencing hearing, his counsel
“stipulate[d] to a factual basis based on the information and
attached reports and transcripts.” Megaw does not address this
stipulation, let alone argue that it has no import as to the
resentencing court’s reliance on facts set forth in the police
reports and probation report. We thus reject Megaw’s assertion
that the court erred in relying on these documents. (See People v.
Evans (2011) 200 Cal.App.4th 735, 756, fn. 12 [declining to
address an argument that a party failed to support adequately].)
Megaw further complains that the resentencing court
erroneously “refus[ed] to hear from the victim of the crime who
was present at the hearing and willing to testify.” We review this
claim of error for abuse of discretion. (See People v. Thomas
(2021) 63 Cal.App.5th 612, 626 [indicating that the “decision to
admit or exclude evidence” is typically committed to the trial
court’s discretion].) Megaw correctly observes that his counsel
had represented at the resentencing hearing that if called to the
stand, the victim would testify: “Megaw’s accomplice, . . . was the
leader of what was supposed to be a robbery,” the accomplice
“ordered Megaw around during the crime”; Megaw “appeared to
be under the influence of alcohol or drugs”; and he “was panicked
and wanted to leave once the robbery was complete.” Megaw
argues, “The court’s refusal to hear this evidence . . . directly
contradicts the assertion that there was an unreasonable risk
that Megaw would commit a crime which carried a life sentence.”
15
He claims his counsel’s representations regarding the victim’s
testimony “[i]nstead . . . suggest[ ] Megaw was surprised by [his
accomplice’s] escalation of a robbery into a kidnapping.”
The resentencing court, however, found an unreasonable
risk that Megaw would commit an offense referenced in
section 1170.18 because, regardless of whether “he was the leader
or he was a follower[,] . . . he was there[, h]e participated[, and
h]e aided and abetted.” The court’s statements indicate that even
if the victim had provided testimony consistent with the
representations of Megaw’s counsel, the court would still have
concluded that Megaw had perpetrated a violation of section 209,
subdivision (b)(1). Under these circumstances, we conclude the
resentencing court did not abuse its discretion in declining to
allow the victim to testify at the hearing. (See People v. Ledbetter
(2014) 222 Cal.App.4th 896, 904 [“ ‘The law neither does nor
requires idle acts.’ ”].)
Lastly, Megaw argues that the resentencing court erred in
characterizing his performance on parole as “terrible.” At his
initial sentencing hearing, Megaw admitted he suffered several
prior convictions for which he served terms in prison, including a
1998 conviction for robbery in violation of section 211; a 2008
conviction for burglary in violation of section 459; and a 2012
conviction for another burglary in violation of section 459. He
pleaded nolo contendere to five offenses in the instant action,
including a kidnapping and a second degree robbery. Thus,
regardless of whether Megaw’s performance on parole could be
fairly characterized as terrible, the record substantiates the
resentencing court’s finding that Megaw had “continued to go
back to state prison on serious offenses,” which finding supports
the court’s conclusion there was an unreasonable risk that
16
Megaw would commit a serious offense in the future. (See
Alvarez, supra, 229 Cal.App.4th at p. 774 [holding that an
appellate court should review the “ ‘record in the light most
favorable to the judgment’ ” in assessing the trial court’s factual
findings].)
In sum, Megaw fails to show that the resentencing court
erred in finding that reducing Megaw’s prison term would
endanger public safety. For the same reason, Megaw does not
establish the resentencing court abused its discretion in declining
to dismiss the one-year enhancement imposed under
section 12022, subdivision (b)(1) and the five-year enhancement
imposed under section 667, subdivision (a).
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
17