Filed 6/30/26 P. v. Blackwell CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
A171835
Plaintiff and Respondent,
v. (Alameda County
Super. Ct. No. 23-CR-008592)
TRACY ROBERT BLACKWELL,
Defendant and Appellant.
Tracy Robert Blackwell (appellant) appeals following his conviction
after a jury trial of assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1)),1 with a true finding that the offense was a hate crime (§ 422.75,
subd. (a)). We remand for resentencing and otherwise affirm.
BACKGROUND
Prosecution Evidence
Jane Doe was the primary witness for the prosecution. She testified
that on May 16, 2023 in the mid-afternoon, she was driving with her three
children, ages 14, 10, and 5. Doe was in the far-right lane waiting to merge
onto the freeway, when appellant suddenly cut in front of her. Doe honked
1 All undesignated statutory references are to the Penal Code.
1
briefly at appellant. In response, appellant slammed on his brakes, gave Doe
the middle finger, and yelled racial slurs and curses at her.
When the freeway on-ramp split into multiple lanes at the metering
lights, which were on, appellant was in the far-right lane and Doe went to the
far-left lane, with a middle lane between them. After merging onto the
freeway, Doe moved a couple of lanes to the left. Appellant pulled up along
her right side and continued yelling racial slurs and curses at her.
Appellant’s driver’s side window and the front passenger window in Doe’s car
were both partly or fully open. The cars were traveling at approximately 65
or 70 miles per hour. Appellant’s car suddenly swerved toward Doe’s car.
Doe braked and swerved to avoid a collision.
Doe’s teenage daughter was sitting in the front passenger seat and
recorded a 23-second video while the cars were driving next to each other on
the freeway, which was played for the jury.2 The video clearly shows
appellant yelling numerous racial slurs and curses while looking at Doe’s car.
As he shouts, “I’ll take that fucking phone,” appellant’s car suddenly swerves
toward Doe’s. Appellant then appears to overcorrect and drive onto the right
shoulder and then ahead of Doe’s car.
Doe testified that, after this near collision, she slowed down and
merged into the right lane so she could take the next exit. Appellant stopped
slightly past the exit, then reversed and followed Doe off the exit ramp. Doe
pulled into a gas station, got out of her car, and yelled for help. Appellant
pulled into the same gas station, got out of his car, and continued yelling
racial slurs and curses at Doe. Doe called 911 and appellant left.3
2 A transcript was provided but not admitted into evidence.
3 A recording of the 911 call and security camera footage from the gas
station were played for the jury.
2
A district attorney’s office employee testified as an expert in
audiovisual technology. At the request of the prosecution team, she
stabilized an excerpt from the cell phone video taken on the freeway by Doe’s
oldest daughter, slowed it to approximately six times slower than the
original, and created a 15-second video that showed the driver’s door area
next to a close up of appellant’s steering wheel. This video was played for the
jury, and clearly shows appellant’s hand turning the wheel sharply to the
left.
Defense Evidence
Appellant testified in his own defense. On the day in question, while
stopped at a traffic light, Doe’s car came up fast behind him and nearly rear-
ended him. After the light turned green, Doe began honking her horn
continuously. Doe moved one lane to the right and, when appellant put on
his turn signal to move into her lane, Doe called out to him, “ ‘What now,
white devil,’ ” and “ ‘honky.’ ” Doe would not let appellant merge into the
right lane, where he needed to be to get onto the freeway on-ramp. Appellant
grew frustrated and angry, slammed on his brakes, and moved into the right
lane behind Doe. After merging onto the freeway, appellant stayed in the
right lane. Doe approached on his left, driving fast, honking and yelling
names at appellant.
Appellant testified he felt “disgusted” watching himself use racial slurs
in the cell phone video. The only racial slurs he used that day were those
captured on the video; he did not use them before or after. He denied
intentionally swerving towards Doe’s vehicle. When their cars nearly hit
each other, appellant swerved away from Doe to the right side of the freeway
and came to a stop at the freeway exit. When Doe exited, he followed her off
the freeway to get her license plate number. At the gas station, appellant
3
wrote down Doe’s plate number and took photographs on his phone. He tried
to talk to Doe, but she told him to get away.
Subsequently, when appellant learned the incident had been on the
news, he turned himself in so he could tell police his side of the story. He told
an officer, “ ‘I lose my patience very, very fast, you know. I mean, I go from
zero to a hundred.’ ”
Verdict and Sentence
The jury found appellant guilty of assault with a deadly weapon (§ 245,
subd. (a)(1)), and found true a special allegation that the offense was a hate
crime (§ 422.75, subd. (a)). The jury acquitted appellant of two misdemeanor
charges: vandalism (§ 594, subd. (a)) and throwing a substance at a vehicle on
a highway (Veh. Code, § 23110, subd. (a)).4
The court sentenced appellant to six years in prison, consisting of the
upper term of four years for the assault count and a consecutive two-year
term for the hate crime allegation.
DISCUSSION
I. Intent
Appellant first argues there was insufficient evidence that he intended
to swerve his car towards Doe’s. (See People v. Wyatt (2010) 48 Cal.4th 776,
780 [“[T]he criminal intent required for assault is ‘the general intent to
wilfully commit an act the direct, natural and probable consequences of
which if successfully completed would be the injury to another’ ”].) We
disagree.
In considering a substantial evidence challenge, “ ‘ “we review the
entire record in the light most favorable to the judgment to determine
4 We have omitted evidence relating solely to these counts.
4
whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” [Citation.] We
determine “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” [Citation.] In so doing, a
reviewing court “presumes in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.” ’ ” (People v.
Williams (2015) 61 Cal.4th 1244, 1281.)
Appellant argues he acted recklessly but did not intentionally swerve
toward Doe’s car. Substantial evidence supports the jury’s contrary finding.
First, the cell phone video clearly shows appellant’s hand turning the
steering wheel sharply to the left. This alone gives rise to a reasonable
inference of intent, as opposed to a slight turn that may have been accidental.
Second, the video shows appellant yelling racial slurs and curses
continuously at Doe’s car, and yelling, “I’ll take that fucking phone” as his car
swerves towards hers. This gives rise to a reasonable inference that
appellant intentionally swerved toward Doe, either in anger or in an attempt
to scare Doe’s daughter from continuing to record him, or both.
Appellant relies on two cases involving high-speed police chases
resulting in collisions. (People v. Cotton (1980) 113 Cal.App.3d 294; People v.
Jones (1981) 123 Cal.App.3d 83.) They are unavailing. As an initial matter,
as subsequently explained in People v. Aznavoleh (2012) 210 Cal.App.4th
1181, 1190, both cases “reasoned among other things that intent to commit a
battery, i.e., attempted battery, is an element of assault with a deadly
weapon.” “Subsequent controlling authority fatally undermines both of these
opinions. [Citation.] As we have explained, a defendant need not intend to
5
commit a battery, or even be subjectively aware of the risk that a battery
might occur. [Citation.] He need only be aware of what he is doing. The
foreseeability of the consequences is judged by the objective ‘reasonable
person’ standard.” (Ibid.) In any event, the cases are distinguishable, as
they contained “no evidence to show or infer defendant drove his vehicle at
the other car involved in the collision.” (Jones, at p. 96; see also Cotton, at
p. 301.)
II. Slow Motion Video
Appellant argues the trial court’s admission of the slow motion video
over his Evidence Code section 352 objection was prejudicial error. We
disagree.
“ ‘ “Unless the dangers of undue prejudice, confusion, or time
consumption ‘ “substantially outweigh” ’ the probative value of relevant
evidence, a[n Evidence Code] section 352 objection should fail.” ’ ” (People v.
Scott (2011) 52 Cal.4th 452, 490–491.) “On appeal, we review the trial court’s
rulings on the admissibility of evidence for abuse of discretion.” (Id. at
p. 491.)
Appellant argues the prejudicial effect of the video outweighed its
probative value, relying on a social science research study finding “slow
motion [video] can systematically increase perceptions of premeditation.”
(Caruso et al., Slow motion increases perceived intent (Aug. 1, 2016) 113 (33)
Proceedings of the Nat. Academy of Sciences 9250, 9253
study noted that it did not “determine whether slow motion replay makes
viewers more or less accurate in judging premeditation in these situations,”
and further found “that giving viewers the opportunity to view both speeds
[original and slow motion] reduces the intentionality bias, but does not
6
eliminate it.” (Id. at pp. 9253, 9252.) The study concluded that “perceived
time was . . . at the crux of participants’ inferences about this fact. For
example, [in one of the studies using a scenario of an attempted robbery,]
once the store clerk appeared, did the shooter have time for forethought or
did he fire reflexively? Although timing will be irrelevant or uncontroversial
in some behavioral sequences submitted for the court’s inspection, the
question of whether an actor had a ‘long enough’ window to assess and
prepare to inflict the harm is likely to be central in many disputes.” (Id. at
p. 9253.) The study did not conclude that slow motion video should never be
permitted, but instead advised that, “in determining whether, and under
what conditions, slow motion evidence should be admissible in court, its
potential benefits must be weighed against its potential costs.” (Ibid.)
The trial court could reasonably find the benefits outweighed any
potential prejudice. First, as appellant does not dispute, the slow motion
video is highly probative. The primary disputed issue regarding the assault
charge was whether appellant intended to swerve towards Doe’s car. While
the original video does appear to show appellant’s steering wheel turning to
the left, it happens very quickly and is difficult to see. The slow motion video
plainly shows appellant’s hand sharply turning the wheel. Second, the jury
was shown the original video before being shown the slow motion video,
mitigating some of the potential prejudicial impact according to the study
relied on by appellant. Third, unlike the study’s attempted robbery scenario,
this case did not present a situation in which appellant’s reaction time was
critical to his intent. As shown in the original video, appellant was driving
parallel to Doe and shouting racial slurs and curses for at least 15 seconds
before turning the wheel, and there is no suggestion that Doe or any of her
children did anything to prompt appellant’s swerving. Thus, the study’s
7
concern about a jury’s perception of the amount of time a defendant has to
react was not an issue here. Finally, as the prosecutor stated during
argument on the video’s admissibility, defense counsel could “argue [to the
jury] what she just stated to the Court” regarding the potential prejudice.5
The trial court did not abuse its discretion in admitting the slow motion
video.
Appellant also complains the trial court did not watch the slow motion
video before ruling on its admissibility. The trial court had seen the original
video and defense counsel did not ask the court to view the slow motion
version before issuing its ruling. People v. Holford (2012) 203 Cal.App.4th
155, relied on by appellant, is therefore inapposite as it involves a video not
seen by the court in any version and multiple requests by defense counsel
that the court watch the video to assess its probative value and prejudicial
effect. (Id. at pp. 162, 164–165.) In any event, the Holford court found the
trial court did not abuse its discretion in admitting the unseen video, noting
that courts “may rely on an offer of proof,” even while the better practice is to
review the video before ruling on its admissibility. (Id. at p. 174.)
5 Defense counsel did so in closing argument, arguing that the slow
motion video “has been slowed down, has been cleaned up in terms of it’s not
bouncing around, and zoomed in. This is not what [appellant] saw on the day
of the incident. This is not what Ms. Doe saw on the day of the incident.
This is not even the timing of how everything happened on the day of the
incident.” Counsel further argued to the jury, “slow motion videos should be
dealt with caution, because what happens when you watch a slow motion
video over and over and over again is we assume the intent of a person. For
example, maybe now we think it took [appellant] more seconds to think about
his act before it happened. So just be careful about that and make sure
you’re watching the video in real time.”
8
III. Accident Instruction
Defense counsel requested the court instruct the jury with CALCRIM
No. 3404. For assault with a deadly weapon, the CALCRIM No. 3404
instruction is as follows: “The defendant is not guilty of assault with a deadly
weapon if (he/she) acted without the intent required for that crime, but acted
instead accidentally. You may not find the defendant guilty of assault with a
deadly weapon unless you are convinced beyond a reasonable doubt that
(he/she) acted with the required intent.”6 The trial court refused the request.
Appellant argues this refusal was prejudicial error. We need not decide
whether the court erred or which standard of prejudice applies, because any
error was harmless under any standard.
The jury was instructed that, to convict appellant of assault with a
deadly weapon, the People had to prove (among other elements): “1. The
defendant did an act with a deadly weapon other than a firearm that by its
nature would directly and probably result in the application of force to a
person” and “2. The defendant did that act willfully.” (Italics added.) The
jury was further instructed: “Someone commits an act willfully when he or
she does it willingly or on purpose.” (Second italics added.) These
instructions plainly informed the jury that, if appellant did not turn the
steering wheel “on purpose”—in other words, if he turned it by accident—he
was not guilty of assault with a deadly weapon.
Defense counsel’s closing argument emphasized appellant’s accident
defense: “Element No. 2 talks about the willfulness of the act. So [the
6 (See § 26 [“All persons are capable of committing crimes except those
belonging to the following classes,” including “[p]ersons who committed the
act or made the omission charged through misfortune or by accident, when it
appears that there was no evil design, intention, or culpable negligence”].)
9
prosecutor] stated that this was no accident. I submit to you that this was an
accident, that it was an unintentional movement by [appellant]. If you find
that [appellant] unintentionally moved his hand to the left, that’s not guilty.
If you find that he accidentally moved his hand to the left, that’s also not
guilty. He has to have willfully moved his hand to the left.” In rebuttal, the
prosecutor did not contradict this statement of the law, but instead contended
the movement was not accidental, arguing there was “evidence to support the
fact that he did move his hand intentionally.”
The jury was instructed they had to find appellant acted “on purpose”
and defense counsel argued appellant accidentally turned the steering wheel.
Thus, by finding appellant guilty, the jury necessarily rejected appellant’s
claim that he turned the steering wheel by accident. Any error in refusing to
instruct with CALCRIM No. 3404 was harmless under any standard. (See
People v. Jones (1991) 234 Cal.App.3d 1303, 1315–1316 [failure to instruct
jury on accident defense was harmless beyond a reasonable doubt because “it
is clear, beyond credible argument, that the jury necessarily rejected the
evidence adduced at trial that would have supported a finding to the effect
that defendant’s ‘accident and misfortune’ defense . . . was valid, thus
implicitly resolving the question of that defense adversely to defendant”],
disapproved on another ground in People v. Anderson (2011) 51 Cal.4th 989,
998, fn. 3; cf. People v. Gonzales (1999) 74 Cal.App.4th 382, 391 [failure to
instruct on accident defense was prejudicial in light of “the jury’s assertion
that it was confused regarding how an accident would affect whether
appellant’s conduct was willful, and the jury’s indication that it was
deadlocked regarding whether appellant acted willfully”], disapproved on
another ground in Anderson, at p. 998, fn. 3.)
10
IV. Sentencing Issues
A. Aggravating Factors
Appellant argues the trial court prejudicially relied on aggravating
factors not found true by a jury to sentence him to the high term on the
assault count. We agree, and will remand for resentencing.
A bifurcated court trial was held on aggravating factors alleged in the
information. The People presented certified documents of five prior felony
convictions: a 1984 conviction for receiving stolen property (§ 496); a 1995
conviction of being a felon in possession of a firearm (former § 12021, subd.
(a)); two 2002 convictions of lewd and lascivious acts upon a child under the
age of 14 (§ 288, subd. (a)); and one 2002 conviction for stalking (§ 646.9,
subd. (a)). The certified documents showed that appellant had served a
prison term for the 2002 convictions. The trial court found the People proved
two aggravating factors beyond a reasonable doubt: that appellant’s prior
convictions were numerous or of increasing seriousness, and that appellant
had served a prior prison term. (Cal. Rules of Court, rule 4.421(b)(2) &
(b)(3).)7 At sentencing, the trial court relied on these two factors in imposing
the upper term on the assault count.
Under the federal constitution, “a defendant is entitled to a jury trial
on all aggravating facts, other than the bare fact of a prior conviction and its
elements, that expose the defendant to imposition of a sentence more serious
than the statutorily provided midterm.” (People v. Wiley (2025) 17 Cal.5th
1069, 1086 (Wiley), fn. omitted.) “When the constitutional right to jury trial
is involved, we have required an express waiver . . . .” (People v. French
7 All subsequent rule references are to the California Rules of Court.
11
(2008) 43 Cal.4th 36, 47.) It is undisputed that appellant made no such
express waiver.
“When a defendant is deprived of a jury trial on aggravating facts used
to justify imposition of an upper term sentence, the reviewing court must
apply the Chapman standard of review. ([Citation]; Chapman v. California
(1967) 386 U.S. 18 [citation].) Under that standard, ‘a sentence imposed
under . . . section 1170(b) must be reversed and remanded unless the
reviewing court concludes beyond a reasonable doubt that a jury, applying
that same standard, would have found true all of the aggravating facts upon
which the court relied to conclude the upper term was justified, or that those
facts were otherwise proved true in compliance with the current statute.’ ”
(Wiley, supra, 17 Cal.5th at p. 1087.)
Appellant concedes that, in light of the certified records submitted by
the prosecution, it is beyond a reasonable doubt that the jury would have
found he had served a prior prison term. The parties dispute whether a jury
would also find his prior crimes were numerous or of increasing seriousness.
With respect to numerosity, appellant was convicted of five offenses
over a period of 18 years, with an additional 22 years elapsing between the
most recent prior offense and the instant offense. Appellant was 63 years old
at the time of trial. We cannot conclude beyond a reasonable doubt that a
jury would have found appellant’s prior crimes numerous. (See People v.
Wright (2025) 113 Cal.App.5th 832, 848 [“Three robberies in the course of 49
years of life may strike some jurors as an obviously ‘numerous’ number of
convictions, but we are unsure 12 people unanimously would agree with this
evaluation beyond a reasonable doubt”].) That as few as three crimes have
been found numerous, as the People argue, does not impact our analysis.
“[W]hile the evidence may have been sufficient to support a finding [that the
12
aggravating factor was true], that is not the proper inquiry when assessing
prejudice under Chapman. [Citation.] Instead, we must ask ‘whether any
rational fact finder could have come to the opposite conclusion.’ ” (Wiley,
supra, 17 Cal.5th at p. 1090.)
As for increasing seriousness, “[u]nder current case law, the
determination that a defendant’s prior convictions are of increasing
seriousness may be made by ‘reference to the range of punishment provided
by statute for each offense.’ [Citation.] Or it may be determined by ‘a
comparison of the offenses’ respective elements.’ ” (Wiley, supra, 17 Cal.5th
at p. 1082.) As appellant argues, the punishment is the same—the triad 16
months, two years, and three years—for the felonies receiving stolen property
(§§ 496, 1170, subd. (h)(1)), being a felon in possession of a firearm (§§ 18,
subd. (a), 29800, subd. (a)(1)),8 and stalking (§§ 18, subd. (a), 646.9, subd. (a)).
While lewd and lascivious acts upon a child has a higher triad—three, six,
and eight years—it is not dramatically higher. (§ 288, subd. (a).) While a
jury certainly could find increasing seriousness, we are not persuaded beyond
a reasonable doubt that they would have, particularly in light of our Supreme
Court’s recent caution regarding increasing seriousness that “the
determination is a comparative and qualitative one. These realities make it
‘ “ ‘difficult for a reviewing court to conclude with confidence that, had the
issue been submitted to the jury, the jury would have assessed the facts in
the same manner as did the trial court.’ ” ’ ” (Wiley, supra, 17 Cal.5th at
p. 1090.)
8 “Former section 12021 was the predecessor statute to section 29800.
Senate Bill [No.] 1080 [(2009–2010 Reg. Sess.)] continued former section
12021, subdivision (a) without substantive change by adding section 29800,
subdivision (a). (Stats. 2010, ch. 711, §§ 4, 6, 9.)” (People v. Gomez (2025) 110
Cal.App.5th 419, 428.)
13
As we are unable to conclude beyond a reasonable doubt that appellant
did not suffer prejudice, we will remand for resentencing.
B. Hate Crime Enhancement
Appellant argues the trial court abused its discretion in not granting
his request to strike the hate crime enhancement. We affirm.
In appellant’s sentencing brief, he requested the court dismiss the hate
crime enhancement in light of the mitigating circumstance that assault with
a deadly weapon is not a violent felony under section 667.5, subdivision (c).
At the sentencing hearing, the trial court did not expressly address this
request and did not dismiss the enhancement.9
A court “shall dismiss an enhancement if it is in the furtherance of
justice to do so.” (§ 1385, subd. (c)(1).) “In exercising its discretion under this
subdivision, the court shall consider and afford great weight to evidence
offered by the defendant to prove that . . . [certain] mitigating circumstances
. . . are present,” including that “[t]he current offense is not a violent felony as
defined in subdivision (c) of Section 667.5.” (Id., subd. (c)(2), (c)(2)(F).) “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.” (Id., subd. (c)(2).)
As an initial matter, appellant complains that the court did not
expressly rule or state its reasons on the record. “Section 1385, subdivision
(a), requires a trial court to state its ‘reasons for the dismissal . . . orally on
the record,’ but there is no similar statutory requirement when a court denies
a request to dismiss an enhancement.” (People v. Bravo (2025) 107
9 We need not and do not decide whether appellant forfeited his
challenge by failing to raise it at the sentencing hearing, as the People
contend.
14
Cal.App.5th 1144, 1157 (Bravo); see also ibid. [“[N]o particular language was
required for the trial court to decline to dismiss one of the four enhancements
for great bodily injury”].)
Appellant next argues the trial court erroneously found no mitigating
circumstances, pointing to a statement by the court that “[t]here are no
factors in mitigation whatsoever.” Although not entirely clear, based on the
surrounding discussion, this statement appears to have been referring to
mitigating factors under rule 4.423 rather than section 1385. “ ‘[A] ruling by
a trial court is presumed correct, and ambiguities are resolved in favor of
affirmance.’ [Citations.] Only ‘[w]hen the record clearly demonstrates what
the trial court did’ will the reviewing court ‘not presume it did something
different.’ ” (In re Eli B. (2022) 73 Cal.App.5th 1061, 1069.) Appellant has
not established the court erroneously found no mitigating circumstances
present for purposes of section 1385.
Appellant alternatively argues the court abused its discretion in
declining to strike the enhancement in light of the mitigating circumstance.
We need not decide whether the court could properly find that dismissing the
enhancement would endanger public safety, as the parties dispute. Even
“absent a finding that dismissal would endanger public safety, a court retains
the discretion to impose” an enhancement if it “finds substantial, credible
evidence of countervailing factors that ‘may nonetheless neutralize even the
great weight of the mitigating circumstance, such that dismissal of the
enhancement is not in furtherance of justice.’ ” (People v. Walker (2024) 16
Cal.5th 1024, 1029; see also Bravo, supra, 107 Cal.App.5th at p. 1157
[“Section 1385(c) does not mean that, whenever a listed mitigating
circumstance is present, the trial court must dismiss all enhancements unless
it finds dismissal would endanger public safety”].)
15
Such countervailing factors were present here. Appellant’s conduct
captured in the 23-second video is an astonishing display of racial hatred at
60 miles per hour. Doe testified that this conduct continued both before and
after the recording, testimony the trial court credited. The trial court spoke
at length at the sentencing hearing about the impact of appellant’s conduct
on Doe and her children, including the following admonishment to appellant:
“Three kids. That didn’t honk the horn, didn’t do anything to you, but you lit
into their mother, their mother like she was a piece of trash. Like she was
less than human. Now, she has got to deal with that for the rest of her life.
Those kids have to deal with that for the rest of their lives. When they see
other people that are not African American, they have to deal with that.
That could affect their ability to welcome other people, other cultures into
their lives, because of what you have done. There are consequences for this
behavior. You deserve all of that sentence, because you should have known
better. . . . They didn’t deserve to be treated that way. And people who act
like you, and who have done that, they need to learn and they need to be
taught and this is how you deter future conduct.” The trial court did not
abuse its discretion.
C. Presentence Credits
Appellant argues that he is entitled to 166 days of presentence conduct
credit in addition to the 167 days of actual credit awarded by the trial court.
The People concede the error and we accept the concession. (§ 4019,
subd. (f).) Because we are remanding for resentencing on the aggravated
factors, appellant’s request that we direct the court to amend the presentence
credits on the abstract of judgment and sentencing minutes is moot.
16
DISPOSITION
The judgment is remanded for resentencing, including an award of an
additional 166 days of presentence conduct credit, and is otherwise affirmed.
Following resentencing, the trial court shall forward a certified copy of the
abstract of judgment to the Department of Corrections and Rehabilitation.
SIMONS, J.
We concur.
JACKSON, P. J.
CHOU, J.
(A171835)
17
