P. v. Carr
Filed 7/2/12 P.
v. Carr CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
RODNEY CYRIL
CARR,
Defendant and Appellant.
B232288
(Los Angeles County
Super. Ct. No.
NA075363)
APPEAL from a judgment of the Superior Court of
County. James B.
Pierce, Judge. Affirmed with directions.
Landra E. Rosenthal, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Stephanie C. Brenan and Idan Ivri, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________________
Defendant Rodney
Cyril Carr appeals from the judgment entered following a jury trial in which he
was convicted of first degree murder and
mayhem, with a finding he personally used a deadly weapon. The jury also found that defendant was sane
at the time he committed the offenses.
Defendant contends insufficient evidence supports the jury’s sanity
verdict and the trial court erred by failing to instruct
and by admitting the testimony of a particular witness. He also notes an error on the abstract of
judgment. We direct the trial court to
correct two errors on the abstract of judgment, but otherwise affirm.
BACKGROUND
Defendant
was charged with first degree murder and aggravated mayhem, with an allegation
of personal use of a deadly weapon.
Defendant was found to be incompetent to stand trial in January of 2009
and was placed in Patton State Hospital. In December of 2009, the
state hospital certified defendant’s competence to stand trial, and proceedings
were resumed.
A. Guilt phase
In
August of 2007, defendant was 23 years old and lived in Harbor City with his
grandparents, Lonnie and Bobby Goodwin.
(Undesignated date references are to 2007.) Because defendant’s mother suffered from drug
addiction, the Goodwins intermittently raised defendant. Lonnie testified that Bobby and defendant had
a loving and affectionate relationship, although defendant displayed anger when
Bobby chastised him. But the
relationship had never been violent.
Defendant dropped out of high school and joined the Navy, but was
dishonorably discharged after a little more than two years. According to Marisela Nash, of the Naval
Criminal Investigative Service, defendant was discharged in 2004 for a pattern
of misconduct including unauthorized absences, wearing civilian clothes,
missing curfew, and “having a false past.â€
As part of his admission into the Navy, defendant underwent a medical
examination addressing both his physical and mental health, including whether
he suffered from any type of psychiatric condition. Defendant’s records reflected a negative
response with regard to psychiatric conditions.
Lonnie testified that defendant’s discharge disappointed Bobby, who had
served in the Army. Bobby was concerned
that defendant was making the wrong choices in life. In 2007, defendant studied electronics at a
technical school and worked nights.
On
August 2, Los Angeles County Sheriff’s deputies arrested defendant in Carson for being
under the influence of a controlled substance.
Defendant attracted their attention by staring into the windows of a
closed business. As the deputies
approached him, defendant ran, dropped to the ground, and repeatedly shouted,
“Don’t shoot me!†He was perspiring,
fidgety, had dilated pupils and an elevated pulse, and appeared to be nervous
and “paranoid.†Defendant admitted he
had used methamphetamine and marijuana about four hours earlier.
Lonnie
went on a cruise from August 10 to August 13.
When she returned home, Bobby told her that during her absence defendant
had gone out with friends to celebrate his birthday, and when he came home, he
“didn’t know his head from his tail†and had slept for three days. Lonnie testified that defendant was behaving
strangely when she returned on August 13, and she believed he was using
drugs. Defendant had always been
talkative, but when Lonnie asked him questions after her return home, defendant
merely nodded, then he said he could not talk to her. The next morning, defendant stared at Lonnie
and one of her travelling companions as they sat and talked in the Goodwin
home. Lonnie asked defendant if he
wanted something, and he replied, “I don’t talk. I only do what I’m told. The voices tell me when to talk and when not
to talk.†Lonnie’s sister hugged
defendant and tried to talk to him, but he pushed her away, saying, “I can’t
talk.†Lonnie also testified that
defendant covered his ears “because he didn’t want to hear anyone say anything
or talk.†Defendant also punched a door
in the house.
At
her sisters’ urging, Lonnie phoned the police.
Los Angeles Police Department (LAPD) Officer Jeanine Bedard responded to
the Goodwin home. She testified that
defendant was docile until she handcuffed him, then he became agitated and
“stated a lot of different things about the Bible and about the beast, things
that did not make sense.†Defendant did
not appear to be under the influence of alcohol or drugs. Bedard arranged for a mental evaluation team
to assess defendant and transported him to the police station.
The
mental evaluation team, consisting of LAPD Officer Sean McPartland and
psychiatric social worker Dawn Urasaki, interviewed defendant at the police
station on August 14. Defendant did not
consent to the evaluation. He stated he
had no history of mental health problems and did not need
“shut up and be quiet†because he believed they were interfering in an argument
he was having with his grandfather. He
told the team he had “been having problems with his grandfather related to
several issues, which he did not want to discuss any details and was having an
argument with him.†He said the argument
was an ongoing one. Defendant admitted
occasionally experimenting with drugs in the past, and ongoing use of marijuana
and alcohol. He said he had last used
marijuana a week earlier and alcohol three days earlier. Defendant told the team he wanted to resolve
the disputes with his grandparents and move back in with them. He blamed the houseguests for the
disturbance.
Urasaki
testified that defendant’s demeanor, speech, activity, and appearance were all
normal during the evaluation. He was
irritated about being handcuffed, but otherwise calm. He appeared hesitant to provide information,
but his statements were responsive and logical.
Defendant did not report any hallucinations, did not appear to be
hallucinating, and made no references to the Devil or Antichrist. McPartland did not believe defendant was
under the influence of drugs. Bobby told
Urasaki that defendant had been “acting paranoid,†“asking other weird
questions,†and said something about cameras in the house. Urasaki and McPartland concluded that
defendant did not pose a danger to himself or others and should be released.
Defendant
returned to the Goodwin home later on August 14. Lonnie would not let him in the house. Defendant requested a Bible and asked Lonnie
whether he was the Antichrist. Lonnie
put a Bible outside for defendant to take, and he left the area.
About
4:00 a.m. on August 15, the Goodwins and their next-door neighbor phoned the
police to report defendant trespassing in the neighbors’ yard. LAPD Officer Gil Carranza testified that he
and his partner called for defendant to come out of the backyard, and he
complied. Defendant was agitated and did
not respond to the officers’ questions, but he eventually told Carranza that he
was just hanging out in his own backyard because his grandparents would not let
him inside the house. Defendant did not
appear to be under the influence of drugs or alcohol. The neighbors did not want defendant
arrested, and Lonnie asked the officers to get defendant some help. With defendant’s consent, the officers drove
him to a bus depot and released him.
On
the morning of August 16, defendant walked into the hair salon where Lonnie
worked and asked to rest. He was dirty
and scratched, and his hands were bleeding.
Lonnie called Bobby and requested that he take defendant back to the
house. When Bobby arrived, he awakened
defendant, who was sleeping on a sofa.
Defendant said nothing, and seemed tired and dazed. Lonnie saw Bobby hug defendant on the way to
the car. Bobby phoned Lonnie at work
between 4:00 and 6:00
p.m. that afternoon and asked when she was
coming home. He said, “It’s getting
pretty rough,†but did not elaborate.
Lonnie said she would be home soon.
When
Lonnie arrived at her home, something told her to enter through the garage, not
the front door. She opened the garage
door with a remote control and saw defendant standing over Bobby, who was lying
on the floor of the garage, covered in blood.
Lonnie did not see Bobby’s face or head.
She ran across the street to a neighbor’s house, screaming. From across the street, Lonnie saw the garage
door close again. The neighbors phoned
the police, who arrived about 15 minutes later.
Responding
LAPD officers opened the garage with Lonnie’s remote and found Bobby’s headless
body lying on the garage floor. They
retreated to the driveway and called for defendant to come out of the
house. Defendant complied and was easily
handcuffed. He had a bloody kitchen
knife in his front trouser pocket. He
was shirtless and covered with blood. He
had one cut on his palm and minor scrapes on his hands. An emergency medical technician testified
that defendant’s blood pressure, pulse, pupils, and behavior were within the
normal range, and he did not appear to be under the influence of drugs. The officer who transported defendant to the
police station testified that he was cooperative and his responses matched the
officer’s commands.
Police
found a pool of blood and a gold necklace on the garage floor. Bobby’s body lay at a different place in the
garage, closer to the door leading into the house. Inside the house, there were blood smears on
the walls, door, sink, and soap inside a bathroom near the door into the
garage. In the den several golf trophies
lay on the floor, broken and covered in blood, and a bloody knife lay on a
barstool. There was blood on the walls,
tables, and chairs. In the kitchen there
was blood on drawers and the trash can, which contained two bloody knives. Nyquil and similar over-the-counter cold
remedies sat on the kitchen counter.
Next to the front door the officers found a set of car and house keys
and Bobby’s severed head wrapped up in a sheet.
A total of seven bloody knives were found throughout the first floor of
the house.
Detective
Isidro Rodriguez testified that police searched the entire house, but found no
drugs or drug paraphernalia.
Detectives
conducted a video-recorded interview with defendant at the station and the
recording was played at his trial.
Defendant admitted killing Bobby and drew a detailed, two-page diagram
of the house that included numbers and descriptions of what acts he had
performed at particular places in the house.
Defendant told detectives that he and Bobby were arguing. He initially said the argument was about
toothpaste, but later said he was angry because Bobby had prevented him from
killing himself with cold remedies. The
argument led to a fistfight, then defendant grabbed one of Bobby’s golf
trophies and began hitting Bobby with it.
Bobby tried to fight back, so defendant “bashed his face†with the
trophy. He explained to the detectives,
“I’m not going to stop hitting you with the trophy if you’re still
fighting.†Bobby then ran to the
kitchen, and defendant believed he was going for a knife. Defendant reached the kitchen first, and
prevented Bobby from getting a knife.
Defendant remarked to the detectives, “Lucky I got him first.†Defendant and Bobby wrestled over a knife,
but defendant stabbed Bobby multiple times.
Defendant
told detectives that Bobby escaped into the garage and locked the door behind
him. Defendant went out the front door
and entered the garage from the driveway.
He continued to stab Bobby, even after he knew Bobby was dead. He realized what he had done and thought he
should try to dispose of the body somehow.
It occurred to him to cut it up.
Defendant explained to the detectives that he lost his mind, was out of
it, and was not thinking clearly. He
decided to cut off Bobby’s head; he wanted it as a souvenir. It was difficult work, and he had to keep
returning to the kitchen to get new knives.
He put his foot on Bobby’s face and started “hacking.†Once defendant got the head off, he decided
to take the rest of the body inside to a bathtub to chop it up. Defendant wrapped Bobby’s head in a blanket
and put it in the downstairs closet, then began to drag Bobby’s body toward the
door leading into the house from the garage.
Defendant
told detectives that after Lonnie arrived and opened the garage door, he closed
the door and “went back to work.†He
explained, “Somewhat dark with a dead body here and I don’t need the whole
neighborhood.†Defendant knew the police
were going to come. He moved the head
from the closet to the front door so he would not forget it when he left. He also took the car keys from Bobby’s pocket
because he considered hiding the body in Bobby’s car.
Detective
Rodriguez testified that defendant was “focused†as he made his confession and
did not appear to be acting oddly.
Defendant never told the police that he heard voices or thought someone
was the Devil or Antichrist. Defendant
admitted that in the past he may have “subconsciously†thought about killing
Bobby because they were “always getting into it,†and he was angry at Bobby,
but he did not plan the killing.
Defendant said he was remorseful, but believed Bobby was going for the
knives, and it was “either me or him.â€
Bobby
had 15 stab wounds, all but one of which were on his torso. One of those wounds perforated his heart and
would have been rapidly fatal. Others
punctured his lungs and would have severely impaired his ability to
breathe. One of Bobby’s eyes was
completely ruptured and the other was severely damages and protruding from its
socket. These eye injuries were
sustained while Bobby was alive and were consistent with blows from a
trophy. He would not have been able to
see. Bobby died before he was
decapitated.
The
Goodwins’ neighbor, Marilyn McDonald, testified that during the week before
Bobby’s murder, she saw defendant walking in the neighborhood talking to himself
and gesturing. He came to McDonald’s
door and asked for a cigarette. McDonald
refused, and defendant slammed the door and walked away, waving his arms.
Defendant’s
former girlfriend, Melissa Sharp, testified for the defense that she had spoken
to defendant on the phone during the summer of 2007, and he did not exhibit any
erratic behavior. He seemed upbeat about
his education and graduation. She
visited defendant in jail in October of 2007 and his behavior had changed. He told Sharp he would be out of jail in a
few weeks and would talk to her then. He
hit his head with the visitation phone, said his head hurt, hung up, and walked
away. Sharp also testified that she previously
observed defendant to have a cordial, but not overly affectionate relationship
with Bobby.
The
jury convicted defendant of first degree
murder and simple mayhem, as a lesser included offense of aggravated
mayhem. It also found that defendant
personally used a deadly weapon in the commission of both offenses. (Pen. Code, § 12022, subd. (b)(1);
undesignated statutory references are to the Penal Code.)
B. Sanity phase and sentencing
Luis
Sesco, who was 17 at the time of the crimes, had met defendant in the
neighborhood sometime in 2007, and they socialized. Sesco noticed a change in defendant’s
behavior during the summer of 2007.
Defendant grabbed a phone away from Sesco’s friend, then got into a
fight with that friend after a trip to the beach. On another occasion, defendant and Sesco were
outside another friend’s house and defendant was rapping. Defendant then saw his reflection in a window
and began yelling at it. Sesco also saw
defendant holding his arms up in the air while he was “pacing†in the
cul-de-sac where he lived. Sometimes
defendant had a Bible in his hands when he did this. On defendant’s birthday (August 1), he
appeared to be under the influence of drugs.
He was fidgety and “talking some nonsense†about “record deals.†He told Sesco he wanted to “rob†a house.
About
three weeks before Bobby’s murder, neighbor Thomas Coleman saw defendant
walking up and down the sidewalk shouting profanity, racial slurs, and
something about gangs and drug dealers when no one else was around him. Then, a few days before the murder, defendant
told Coleman that he had gotten into Pepperdine and was going to study
engineering.
Defense
psychiatrist Rebecca Crandall opined that defendant suffered from a
components, and that he was legally insane when he committed the crimes
because, although he understood the nature of his actions and probably knew
that it was legally wrong to kill Bobby, he believed Bobby was Satan and “did
not think that it was wrong to kill Satan.â€
Crandall explained that one basis for her opinion was defendant’s
history of mental illness. Defendant’s
mother told Crandall that defendant was hospitalized and treated for bipolar
disorder in 1999. Crandall also reviewed
records from Valley Mental Health in Utah indicating that in 2002 defendant was
diagnosed with generalized anxiety disorder and depression. After his roommate died of meningitis,
defendant repeatedly expressed anxiety about catching the disease. Crandall’s opinion was also based upon
witnesses’ observations of defendant’s odd behavior in the period leading up to
the murder, the circumstances of the crimes, defendant’s post-incarceration
statements to Crandall and other doctors that he believed Bobby was either possessed
or Satan, a statement by neighbor Marilyn McDonald that she thought someone had
told her that defendant had referred to Bobby as Satan, defendant’s medical
records from jail reflecting psychotic symptoms, and the report of Dr. Simpson,
who examined defendant in jail and diagnosed him as suffering from “psychotic
mental disorder, most likely schizophrenia.â€
Crandall testified that defendant told Simpson that he did not tell the
police about hearing voices or his belief that Bobby was Satan because the
voices told him not to “snitch.â€
Crandall
admitted that psychosis can be caused by drug use and it is very difficult to
distinguish between a naturally occurring mental illness and a drug-induced
disorder without objective indications of drug use. All of defendant’s odd behavior before the
murder could have been caused by drug use.
She further admitted that defendant may have killed Bobby simply from
anger at being evicted from the Goodwin home.
Prosecution
psychiatrist Ronald Markman agreed that defendant was in a psychotic state when
he killed Bobby. He opined that this
psychotic state could have resulted from a psychotic breakdown, being under the
influence of drugs at the time of the murder, or prior drug use that caused a
settled psychosis even after the drugs had left defendant’s system. Markman believed defendant was most likely
under the influence of drugs at the time of the murder, but if not, that prior
drug use caused a settled psychosis.
Accordingly, Markman opined defendant was not legally insane at the time
of the offenses. Markman based his
opinion on defendant’s use of alcohol since the age of 10 and marijuana since
the age of 11, defendant’s report that he had used those drugs ever since,
defendant’s use of methamphetamine two weeks before the murder, defendant’s
report that he had not used drugs for four days before the murder (revealing
that he had used them as late as August 12), and the paranoid and delusional
nature of defendant’s odd behavior in the weeks before the murder, which was
fully consistent with use of stimulant-type drugs. Markman disagreed with defendant’s jail
diagnosis of schizophrenia.
The
jury found defendant legally sane. The
court sentenced defendant to prison for 26 years to life.
DISCUSSION
Defendant
contends that insufficient evidence supported the jury’s sanity verdict.
In
order to resolve this issue, we view the record in the light most favorable to
the judgment to determine whether substantial
evidence supports the jury’s sanity determination. (People
v. Chavez (2008) 160 Cal.App.4th 882, 891; People v. Skinner (1986) 185 Cal.App.3d 1050, 1059.) Because defendant bore the burden of proving
by a preponderance of the evidence that he was insane, before we can overturn
the jury’s finding to the contrary, “we must find as a matter of law that the
[jury] could not reasonably reject the evidence of insanity.†(Skinner,
at p. 1059.)
Proving his
insanity required defendant to show that at the time he
committed the offense he was incapable of knowing or understanding the nature
and quality of his act or distinguishing right from wrong. (§ 25, subd. (b);
Insanity cannot be based upon the “addiction to, or abuse of,
intoxicating substances.â€
(§ 25.5.) “This statute
makes no exception for brain damage or mental disorders caused solely by one’s
voluntary substance abuse but which persists after the immediate effects of the
intoxicant have dissipated. Rather, it
erects an absolute bar prohibiting use of one’s voluntary ingestion of
intoxicants as the sole basis for an insanity defense, regardless whether the
substances caused organic damage or a settled mental defect or disorder which persists
after the immediate effects of the intoxicant have worn off.†(People
v. Robinson (1999) 72 Cal.App.4th 421, 427.)
Substantial
evidence supports the jury’s sanity finding.
The jury could have discounted defendant’s post-incarceration statements
about Bobby being Satan as a conscious effort to appear insane. The jury also had the benefit of viewing the
recording of defendant’s confession, during which he never mentioned hearing
voices or a belief that Bobby was Satan.
Ample evidence also supported a potential conclusion by the jury that
Bobby’s motive for the murder was anger, not a delusional belief. Defendant’s confession revealed that the
events leading to the murder began with an argument, and defendant told the
detectives that he and Bobby were “always getting into it†and he may previously have “subconsciouslyâ€
thought of killing Bobby. Defendant had
also told Urasaki on August 14 that he had been having problems with his
grandfather related to several issues and was having an ongoing argument with
him. The jury could reasonably infer
that defendant’s problems with Bobby were exacerbated by defendant’s expulsion
from the Goodwin home on August 14.
Accordingly,
although the evidence would have supported an insanity verdict, it was not uncontradicted
and entirely to the effect that defendant was insane, and we cannot overturn
the jury’s finding to the contrary.
In
the guilt phase, the trial court instructed the jury on first and second degree
murder, voluntary manslaughter on the basis of both heat of passion and
unreasonable self-defense, and self-defense.
Defendant
contends that the trial court was required to instruct sua sponte on
involuntary manslaughter. He argues such
an instruction was required because the jury could have found he killed Bobby
while committing a battery, assault with a deadly weapon, or other “inherently
dangerous felony,†or that he acted in self-defense or unreasonable
self-defense.
A trial court must instruct
sua sponte on a lesser included offense if there is substantial evidence that,
if accepted by the trier of fact, would absolve the defendant of guilt of the
greater offense but not of the lesser. (
686, 745.) Substantial evidence in this
context is “evidence from which a jury composed of reasonable persons could
conclude that the facts underlying the particular instruction exist.†(Ibid.)
Defendant’s argument is completely
contrary to the law and the record. Defendant
confessed to repeatedly striking Bobby’s face with golf trophies, then
repeatedly stabbing him with kitchen knives.
Defendant’s confession supported instructions upon self-defense, which
justifies a homicide and leads to an acquittal (§ 197), and unreasonable
self-defense and heat of passion, which lead to a verdict of voluntary
manslaughter (§ 192, subd. (a);
88–89; People v. Lasko (2000) 23
Cal.4th 101, 109–110).
“[A]n unlawful killing during the commission of an inherently dangerous
felony, even if unintentional, is at least voluntary manslaughter.†(People
v. Garcia (2008) 162 Cal.App.4th 18, 31.)
Nothing in the record supported a theory of
involuntary manslaughter, which is an inherently unintentional killing. (§ 192, subd. (b); People v.
643.) Non-vehicular involuntary
manslaughter is a killing “in the commission of an unlawful act, not amounting
to felony; or in the commission of a lawful act which might produce death, in
an unlawful manner, or without due caution and circumspection†(§ 192, subd.
(b)), or in the commission of a “noninherently dangerous felony . . .
committed without due caution and circumspection†(People v. Burroughs
(1984) 35 Cal.3d 824, 835, disapproved on other grounds in Blakeley, at p. 89). “[W]ithout due caution and circumspection†is
equivalent to criminal negligence. (
998, 1007.) Striking
Bobby with golf trophies and repeatedly stabbing him with knives were not
unintentional acts, lawful acts, unlawful acts not amounting to a felony, or
noninherently dangerous felonies. The
trial court was not required to instruct upon involuntary manslaughter
because neither the law nor the record supported such an instruction.
Defendant
contends that the trial court erred by admitting the testimony of Marisela
Nash, of the Naval Criminal Investigative Service, because it was irrelevant
and more prejudicial than probative, in that it suggested defendant was a
person of bad character who committed crimes and “could not conform his
behavior to expectations of society.â€
Evidence is relevant if it has any
tendency in reason to prove or disprove any disputed fact of consequence to the
determination of an action. (Evid. Code,
§ 210.) Evidence Code section 352
provides that the court may, in its discretion, exclude relevant evidence if
its probative value is substantially outweighed by the probability that its
admission will either be unduly time consuming or create a substantial danger
of undue prejudice, confusion of the issues, or mislead the jury. We review any ruling on the admissibility of
evidence for abuse of discretion. (
Cal.4th 1067, 1113.)
After
the court instructed the jury in the guilt phase,
in an unreported discussion in chambers, she had objected to Nash’s testimony
as irrelevant. The prosecutor then noted
that in the same discussion, she had offered to have Nash testify only that
defendant was discharged from the Navy for reasons other than a psychiatric
condition, but defense counsel preferred additional testimony to prevent the
jury from speculating. The court noted
that defense counsel “elected, and I think wisely to, that we go—allow the
People to go ahead and go into the specific conduct to demonstrate
. . . it wasn’t for any violent or other bad conduct that may be
worse in the mind of the jurors than going AWOL or disobeying orders and so
forth.†Defense counsel agreed that
these statements reflected the prior unreported discussion. It thus appears that defendant preserved a
relevance objection to Nash’s testimony but forfeited his Evidence Code section
352 objection by failing to raise it in the trial court. (People v.
Partida (2005) 37 Cal.4th 428, 434.)
Nash’s
testimony was arguably relevant to show that defendant’s discharge from the
Navy was not based on a psychiatric condition.
It was also arguably relevant, in conjunction with Lonnie’s testimony
that Bobby was disappointed by defendant’s discharge from the Navy and
concerned that defendant was making the wrong choices in life, to demonstrate a
source of tension between Bobby and defendant, which ultimately lent some
support to an inference that the murder stemmed from a strained relationship
between defendant and Bobby, not defendant’s delusional thoughts.
Even
if the court erred in admitting Nash’s testimony, such error was not
prejudicial. Nash’s testimony was
extremely brief and showed only that defendant committed minor rules violations
and misrepresented some aspect of his history.
In contrast with the nature of the offenses, defendant’s post-offense
conduct in cutting off Bobby’s head, and defendant’s detailed confession, there
is no reasonable probability defendant would have obtained a more favorable
result if the court had excluded Nash’s testimony. (Evid. Code, § 353, subd. (b);
826, 878; People v. Watson (1956) 46
Cal.2d 818, 836.)
Defendant
contends, and the Attorney General aptly concedes, that the abstract of
judgment erroneously reflects that defendant was convicted in count 3 of
aggravated mayhem, in violation of section 205, whereas he was actually
convicted of simple mayhem in count 2, in violation of section 203.
Our
review further reveals that the abstract of judgment erroneously reflects that
defendant’s sentence for count 1 was enhanced by one year pursuant to section
664, subdivision (a), whereas the correct authority for the enhancement was
section 12022, subdivision (b)(1).
We
direct the trial court to correct both of these errors.
DISPOSITION
The judgment is
affirmed. If it has not already done so,
the trial court is directed to issue an amended abstract of judgment correcting
the following errors: (1) count 3 should
be numbered count 2 and was a conviction for mayhem (Penal Code section 203),
not aggravated mayhem; and (2) the enhancement for count 1 was imposed pursuant
to Penal Code section 12022, subdivision (b)(1), not Penal Code section 664,
subdivision (a).
NOT TO BE
PUBLISHED.
MALLANO,
P. J.
We concur:
ROTHSCHILD, J.
CHANEY, J.
