Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF212931, Gary L. Paden, Judge.
Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Alfredo Rodriguez (appellant) was charged with an 11-count amended information. He pled no contest to possession of a firearm by a felon in counts 7 and 8 (Pen. Code, § 12021, subd. (a)(1)), to resisting a police officer in count 9 (§ 148, subd. (a)(1)), to hit and run in count 10 (Veh. Code, § 20002, subd. (a)), and to disobeying a court order in count 11 (§ 166, subd. (a)(4)). Following trial on the remaining counts, a jury acquitted appellant of attempted murder in count 2 (§§ 664, 187, subd. (a)), and of shooting at an inhabited dwelling in count 5 (§ 246), but convicted him of discharging a firearm with gross negligence in count 1 (§ 246.3, subd. (a)), of assault with a firearm in counts 3 and 4 (§ 245, subd. (a)(2)), and of shooting from a motor vehicle in count 6 (§ 12034, subd. (c)). Personal use of a firearm allegations attached to counts 3 and 4 were found true (§ 12022.5). In a bifurcated proceeding, the trial court found true the allegations that appellant had a prior strike (§ 1170.12, subds. (a)-(d)), that the prior strike was a serious felony (§ 667, subd. (a)(1)), and that he had suffered a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced appellant to a total determinate term of 22 years 4 months in prison as follows: On count 3, the midterm of three years, doubled by the strike allegation, plus the midterm of four years for the personal use of a firearm allegation, five years for the prior serious felony allegation, and one year, stayed, for the prior prison term allegation; on count 4, one-third the midterm of one year, doubled, plus 16 months for the firearm allegation; on count 1, eight months, doubled; on count 6, the midterm of five years, doubled, plus five years for the prior serious felony and one year for the prior prison term, all stayed; on count 7, eight months, doubled; on count 8, eight months, doubled; and on counts 9 through 11, 150 days with credit for time served.
Appellant contends there was insufficient evidence produced at trial to sustain a true finding that he had suffered a conviction of a strike prior; that the trial court erred when it failed to give a unanimity instruction in count 1; that the trial court should have stayed sentence on either count 7 or 8 pursuant to section 654; and that the trial court erred when it sentenced him twice on counts 9 through 11. We agree only with appellant’s last contention and make a change to the abstract of judgment, but in all other respects, affirm.
FACTS
In November of 2008, Pedro Espinoza and his wife Veridiana Campos moved into a new house in Ivanhoe. Appellant, who had been previously married to Campos, lived nearby.
Early on November 1, Espinoza was driving in the neighborhood when he saw appellant standing in his yard. Appellant yelled something, and Espinoza called appellant a “piece of shit, ” got out of his car, and challenged appellant from the middle of the street. Appellant remained in his yard. The two yelled back and forth at each other until Espinoza got back into his car and drove away.
Once home, Espinoza told Campos, who was washing clothes in the garage, what had happened; the garage door was open. Appellant then drove up to the house and stopped in the middle of the street. Appellant opened his car door and, while still seated, said, “All right mother fucker.” Espinoza walked toward appellant, who pulled out a gun. After Espinoza taunted him, appellant pointed the gun and shot twice in Espinoza’s direction. Campos, who was right behind Espinoza, thought appellant fired into the air and then “pointed low” in Espinoza’s direction. Appellant then sped away. Both Espinoza and Campos heard more shots as appellant fled. Campos called the police.
Sheriff Deputy Jimmy Burciaga arrived at the scene and located two 9-millimeter shell casings four feet apart on the road. According to Burciaga, Espinoza told him appellant shot once in the air and a second time into the grassy area, although Burciaga was unable to find any slugs. But Espinoza denied having told Burciaga that appellant fired once in the air and once into the ground.
On November 8, a week after the shooting, Police Officer Andy Swarthout saw a vehicle fail to stop at a stop sign. Appellant, the driver of the vehicle, failed to stop when the officer activated his lights and siren. A pursuit ensued, and appellant eventually got out of the moving vehicle and fled, letting the vehicle strike a parked car.
Defense
Appellant testified on his own behalf that while he, Roxanne Zepeda, and their children were outside their home, Espinoza came to the house, insulted him, and challenged him to a fight. Appellant denied saying anything to Espinoza, but admitted he became so angry that he considered shooting him. He got into his car, which contained a nine-millimeter semiautomatic handgun, and went to Espinoza’s house. Once there, he shot once in the air and once into the ground, but he did not shoot directly at Espinoza and did not intend to kill him.
DISCUSSION
1. Did the record fail to establish that appellant was previously convicted of a serious or violent felony?
The amended information alleged with respect to counts 1 through 8 that appellant had been convicted in Tulare County on September 21, 2006, of violating “PC12021/186.22.” Appellant contends on appeal that the evidence produced at trial was not sufficient to sustain the trial court’s true finding as to that allegation. We disagree.
We note as a preliminary matter that respondent asserts appellant cannot raise this issue because he failed to comply with section 1237.5, which establishes the prerequisites to appeal from conviction on a plea of guilty or nolo contendere. As noted by appellant, however, he is not appealing the validity of the prior conviction; instead, he is arguing that the record failed to establish he was convicted of a serious or violent felony. Thus, as with any claim of insufficiency of evidence, we must look to “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence- that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the [allegation true] beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 12021, subdivision (a) describes generally the offense of a felon being in possession of a firearm and is not listed as either a serious or violent felony under either section 1192.7, subdivision (c) or section 667.5, subdivision (c). “[A] violation of section 12021, subdivision (a) is not a serious felony as defined in section 1192.7, subdivision (c).…” (People v. Prieto (2003) 30 Cal.4th 226, 276.) But a serious felony includes “any felony offense, which would also constitute a felony violation of Section 186.22.” (§ 1192.7, subd. (c)(28).) Section 186.22 refers to special sentencing provisions for gang related crimes. Thus, “it is proper to define any felony committed for the benefit of a criminal street gang as a serious felony under section 1192.7(c)(28).” (People v. Briceno (2004) 34 Cal.4th 451, 465.)
The record contains the following documents relating to appellant’s prior conviction: a certified copy of the felony complaint dated August 9, 2006, charging appellant with, inter alia, a violation of section 12021, subdivision (a)(1), and section 186.22, subdivision (b)(1)(A); the abstract of judgment showing that he was sentenced to the low term of 16 months on the section 12021, subdivision (a)(1) conviction; an October 24, 2006, minute order showing appellant was sentenced to the low term of 16 months on the section 12021, subdivision (a)(1) conviction; and a minute order dated September 21, 2006, stating that an oral waiver was taken and that appellant pled no contest to section 12021, subdivision (a)(1) with an indicated sentence of 16 months. There is also an amended minute order dated August 10, 2009, three years after the plea, which states that the September 21, 2006, minute order is amended to reflect that appellant admitted the section 186.22, subdivision (b)(1)(A) special allegation.
The amended minute order of August 10, 2009, incorrectly refers to the statute as “182.66, ” which is a nonexistent Penal Code section.
The reporter’s transcript for the September 21, 2006, plea hearing states that appellant specifically pled no contest to both the section 12021, subdivision (a)(1) felony and the attached section 186.22, subdivision (b)(1)(A) gang allegation. Before taking the plea, defense counsel specifically stated that he had advised appellant that the special allegation attached to the section 12021, subdivision (a)(1) count made it a “strike offense.” When asked by the trial court if he understood that, appellant stated, “Yes, sir.” The trial court then explained, “The strike offense means that if in the future you’re charged with any felony, your sentence on that case would be doubled because of your plea to a strike in this offense. Do you understand that?” to which appellant replied, “Yes, sir.” The probation report recommended that the one-year sentence for the gang allegation be stayed and that the agreed-upon sentence of 16 months be imposed.
When ruling on the prior strike allegation, the trial court in the current case stated, “I took the plea and sentenced him to 16 months in state prison. I reviewed the plea transcript. It was a strike. He was advised it was a strike.”
Appellant contends that “while the documents used to prove the prior showed that appellant may have been charged with a gang related offense and may have admitted that offense, they failed to show that he was convicted of it.” As argued by appellant,
“This record plainly shows that appellant admitted the gang allegation but that the court did not impose a sentence for it. And while the probation report suggests that the trial court should stay the sentence for the allegation, in fact the court actually dismissed that allegation. And because the court dismissed the allegation, the prior may not be deemed a serious felony.”
Appellant acknowledges that the trial court did not state on the record that the gang allegation was dismissed or stricken. He argues dismissal must be assumed because the abstract of judgment includes no reference to any such allegation. (See, e.g., People v. McQueen (2008) 160 Cal.App.4th 27, 37 [sentencing enhancement must be imposed or stricken].) In other words, appellant argues that he could not have been convicted of the enhancement allegation without being sentenced on it; sentence on it could not have been stayed; and, since he was not sentenced on it, it was stricken, which results in no conviction on that allegation. As argued by appellant, without being convicted of the gang allegation in that count, his prior section 12021 offense is not a serious felony and cannot be used to enhance his current sentence with an additional five-year term or by doubling his sentence as a second striker.
We disagree with appellant’s claim that, because it was not listed on the abstract of judgment, the section 186.22, subdivision (b)(1)(A) enhancement was stricken pursuant to section 1385 and therefore was not a conviction. (See, e.g., People v. Barro (2001) 93 Cal.App.4th 62, 67 [effect of dismissal under § 1385 is to wipe slate clean as if defendant never suffered prior conviction in initial instance].) “[T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the court’s oral pronouncement of judgment to the extent the two conflict.” (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) And nothing in the record suggests that the court struck the enhancement under section 1385. Rather, the better inference is that, since the court agreed to a stipulated sentence of 16 months, which is less than the minimum of two years required by the enhancement when imposed (§ 186.22, subd. (b)(1)(A)), it instead struck only the punishment for the enhancement, which is permitted (§ 186.22, subd. (g)). The same authority to strike the punishment exists under California Rules of Court, rule 4.428.
Section 1385, subdivision (a) provides: “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order and entered upon the minutes.…”
Subdivision (g) of section 186.22 provides: “Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section … in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.”
Rule 4.428 of California Rules of Court provides: “If the judge has statutory discretion to strike the additional term for an enhancement in the furtherance of justice under section 1385(c) or based on circumstances in mitigation, the court may consider and apply any of the circumstances in mitigation enumerated in these rules or, under rule 4.408, any other reasonable circumstances in mitigation or in the furtherance of justice. [¶] The judge should not strike the allegation of the enhancement.”
We also disagree with appellant’s argument that he was not convicted of the offense because he was not sentenced on it. As explained in People v. Laino (2004) 32 Cal.4th 878:
“The three strikes law clearly provides that a prior conviction occurs upon ‘the date of that prior conviction and is not affected by the sentence imposed.’ (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) The statutory language thus comports with the general California rule that ‘“A plea of guilty constitutes a conviction.” [Citation.]’ (People v. Banks (1959) 53 Cal.2d 370, 390-391.) ‘Indeed, it is settled that for purposes of a prior conviction statute, a conviction occurs at the time of entry of the guilty plea.’ ([People v.] Castello [(1998) ] 65 Cal.App.4th [1242], 1253.) As we stated in People v. Balderas (1985) 41 Cal.3d 144, 203, ‘For purposes of a “prior conviction” statute, defendant suffers such a conviction when he pleads guilty.’ We affirmed this view with specific reference to the three strikes law in People v. Rosbury (1997) 15 Cal.4th 206, 210, in which we cited with approval People v. Williams (1996) 49 Cal.App.4th 1632, 1636 for its holding ‘that under the three strikes law “when guilt is established, either by plea or verdict, the defendant stands convicted and thereafter has a prior conviction.”’ (Rosbury, at p. 210.)” (People v. Laino, supra, 32 Cal.4th at pp. 895-896.)
Thus, despite not being sentenced on the gang enhancement that rendered the underlying offense a strike, appellant was nevertheless convicted of that strike offense when he pled no contest to the charge. (People v. Laino, supra, at p. 896.)
There is sufficient evidence to find that appellant was convicted of a prior serious felony, and the trial court therefore did not err in sentencing appellant as a “second striker” or imposing the prior serious felony enhancement.
2. Did the trial court err in failing to give a unanimity instruction?
As noted, there was evidence that appellant discharged more than one shot during the incident. Appellant contends that the court erred in failing to give an instruction requiring the jury to unanimously agree on the factual basis for the count of negligently discharging a firearm. We disagree.
“Defendants in criminal cases have a constitutional right to a unanimous jury verdict. [Citation.] From this constitutional principle, courts have derived the requirement that if one criminal act is charged, but the evidence tends to show the commission of more than one such act, ‘either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.’ [Citations.]” (People v. Napoles (2002) 104 Cal.App.4th 108, 114.)
But, “[N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuous transaction or course of criminal conduct. ‘The “continuous conduct” rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.’ [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 275.) Moreover, the failure to give a unanimity instruction is harmless when disagreement by the jury concerning the factual basis for conviction is not reasonably probable. (People v. Jenkins (1994) 29 Cal.App.4th 287, 299; People v. Melendez (1990) 224 Cal.App.3d 1420, 1430, overruled on another point in People v. Majors (1998) 18 Cal.4th 385, 408; People v. Burns (1987) 196 Cal.App.3d 1440, 1458.)
Appellant was charged with discharging a firearm with gross negligence in count 1. In order to convict appellant, the jury had to find that appellant intentionally shot a firearm; he did so with gross negligence; and the shooting could have resulted in the injury or death of a person. (CALCRIM No. 970.) In this case the evidence showed that appellant fired at least two shots during a continuous transaction in front of Espinoza’s house. There was conflicting evidence whether appellant fired any additional shots after he left the area, but the prosecutor did not rely on any of these possible additional shots in argument to the jury. Instead, the prosecutor argued, “We do have evidence of two casings located at the scene so we know at least at a minimum … two shots were fired.”
Appellant did not proffer a separate defense to the two shots he made in front of the house, stating he shot “foolish[ly]” once into the air and once into the ground, although he claimed he did not discharge the weapon after he left. In essence, the defense conceded that appellant fired two shots but denied he formed the intent to kill when he fired. Under the circumstances, there was no reasonable basis for the jury to distinguish one discharge of the firearm in front of the house from the other. Instead, if the jury found that he committed either act of shooting, it must have found that he committed both of them, and either would satisfy the elements of the offense. Consequently, we conclude that no unanimity instruction was required and, if one was required, then the failure to give it was harmless. (See People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Matute (2002) 103 Cal.App.4th 1437, 1449-1450.)
We note that appellant, in passing, argues that “if guilt on count 1 was based on the same shot that was fired toward [Espinoza], then the sentence in count 1 would have to be ordered stayed [pursuant to section 654, ]” because appellant was also sentenced on an offense of assault with a firearm on Espinoza in count 4. We do not address issues presented by appellant without argument to adequate authority (People v. Hardy (1992) 2 Cal.4th 86, 150), but in any event, we disagree.
Section 654 prohibits multiple sentences where a single act violates more than one statute, or where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct with a single intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19-20.) In count 1, appellant violated section 246.3 by negligently discharging a firearm twice-most likely, as surmised by the verdict, once in the air and once toward the ground. In count 4, appellant violated section 245, subdivision (a)(2), assault with a firearm, by pointing the gun at Espinoza. Appellant’s intent and objective in pointing the gun at Espinoza was to threaten him. This threat was different from appellant’s intent and objective to frighten Espinoza in some general sense by shooting into the air and into the ground. Appellant was therefore properly sentenced on both counts.
3. Did the trial court err when it imposed sentence on both counts 7 and 8?
The amended information charged appellant with two counts of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1). Count 7 alleged one such offense occurred on or about November 1, 2008, and count 8 alleged a second separate such offense occurred on or about November 8, 2008. Prior to trial, appellant pled no contest to both counts. The trial court sentenced appellant to consecutive terms of one-third the midterm, or eight months doubled to 16 months pursuant to the strike allegation, on each count. Appellant contends the sentences imposed on counts 7 and 8 violate the prohibition against multiple punishments set forth in section 654. Citing People v. Spirlin (2000) 81 Cal.App.4th 119 (Spirlin), he argues there was no evidence that the two offenses did not involve the same weapon and was therefore a single act with a single objective. We disagree.
In pertinent part, section 654 provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.…”
“Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the ‘intent and objective’ of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not for more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
The purpose of section 654 is to ensure that the punishment will be commensurate with the defendant’s criminal liability. (Cleveland, at pp. 271-272.) We review the trial court’s determination that section 654 does not bar multiple punishments for substantial evidence. In so doing, we view the record in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Cleveland, at p. 271.)
In Spirlin, the defendant robbed the same gas station on two separate occasions, about one month apart. In each robbery, the defendant pointed a gun at one of the two co-owners of the station. (Spirlin, supra, 81 Cal.App.4th at p. 123.) Several days after the second robbery, the defendant was arrested and discovered to be in possession of a gun. Based on these facts, the defendant was convicted of three counts of being a felon in possession of a handgun in violation of section 12021, subdivision (a)(1) and a separate, consecutive sentence was imposed on each count. (Spirlin, supra, at pp. 128-129.)
The appellate court stayed sentence on two of the three convictions pursuant to section 654, holding that the defendant could not be punished for being in possession of the same handgun on three different occasions. (Spirlin, supra, 81 Cal.App.4th at pp. 129-130.) The court in Spirlin observed that the key question was whether the “defendant’s objective and intent in possessing the handgun on all three occasions were the same, thus making the crime one indivisible transaction subject only to one punishment under section 654.” (Id. at p. 130.) It reasoned that the evidence established that the defendant had continuous constructive possession of the gun from prior to the charged robberies until it was found by police in a closet in the defendant’s house. It was undisputed that the gun found was the same gun as that used in the two robberies. The court concluded that continued possession was a single act with a single objective as to which multiple punishment was precluded by section 654. (Spirlin, at pp. 130-131.)
Spirlin is inapposite. Here, the evidence at trial established that on November 1, 2008, appellant was in possession of a firearm when he approached Espinoza at his home and fired two shots toward or near him. Espinoza described the gun as being chrome, similar to the gun the officer who later responded to the scene was carrying. Campos described the gun as “a long gray gun.” The firearm was a semiautomatic, and two 9-millimeter casings were recovered at the scene. But appellant drove away and no gun was recovered at the time. Appellant was arrested a week later on November 8, 2008. Evidence from the preliminary hearing showed that a semiautomatic weapon was found near where appellant was apprehended. Appellant told the officers that he was carrying a gun. The weapon was a semiautomatic.380 Jennings Bryco pistol. At the preliminary hearing, Deputy Jimmy Burciaga, who had responded to the scene on November 1, testified that he “[did] not believe” that the gun recovered on November 8 was the same caliber as the casings recovered on November 1. After testifying that the casings found on November 1 were nine-millimeter casings, he was again asked, “And you said that, that was not the same caliber as the gun that was recovered on [appellant] about a week later?” Officer Burciaga replied, “That’s what I was advised by Detective Yandell.”
According to a discussion between defense counsel and the court, Detective Yandell appears to have been a gang task force officer who “conducted a search warrant and interviewed … Espinoza and did a photo lineup, ” but he did not testify at trial.
The trial court has broad latitude in the factual application of section 654. We presume the sentencing order correct and affirm if it is supported by any substantial evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.) Here, from the testimony at the preliminary hearing and at trial, it is reasonable to infer that appellant possessed two different guns, one of which he used on November 1 and the other of which he possessed on November 8. Unlike the possession of a single gun over a period of time, the possession of two different guns on two different days is not conduct incident to one objective or intent. Rather, it requires two separate intents and objectives: namely, possession of each gun. Accordingly, possession of two different guns on two different days supports multiple punishments. (Cf. People v. Monarrez (1998) 66 Cal.App.4th 710, 713 [possession of different drugs may be separately punished]; People v. Menius (1994) 25 Cal.App.4th 1290, 1296 [same].)
Even defense counsel admitted at sentencing that there could be “no argument” that the sentences on counts 7 and 8 run consecutively.
4. Did the trial court err by sentencing appellant twice for the same offenses?
Appellant contends, and respondent concedes, that the trial court erred in sentencing appellant twice for the convictions in counts 9, 10, and 11. We agree.
On August 11, 2009, just prior to trial, appellant entered no contest pleas to the charges in count 7 through 11 and waived time for sentencing on the misdemeanor counts, 9, 10, and 11. The court sentenced appellant to 150 days in jail for each count, to run concurrent, with credit for time served.
At sentencing on November 3, 2009, after the jury returned verdicts on the remaining charges, the court imposed sentence on those convictions. When it did so, it again sentenced appellant on the misdemeanor convictions in counts 9, 10, and 11. This time the court imposed 180 days in jail on each count, to run concurrent, with credit for time served. The minute order for that date includes no reference to counts 9, 10, and 11.
Appellant now contends, and respondent concedes, that the sentencing on counts 9, 10, and 11 on November 3, 2009, was error and must be stricken from the record. While we will not strike reference to those counts in the reporter’s transcript, we will order that the minute order for November 3, 2009, be amended to include a notation that, as stated in the minute order of August 11, 2009, the court imposed a sentence of 150 days in jail each on counts 9, 10, and 11, to run concurrent, with credit for time served.
One additional note not mentioned by the parties. Appellant pled no contest to counts 7 and 8, but the amended abstract of judgment filed June 4, 2010, indicates he was convicted by jury of these two counts. We thus order that the abstract of judgment be corrected to reflect that conviction on counts 7 and 8 was by plea.
DISPOSITION
The case is remanded to the trial court with directions: (1) to amend the minute order of November 3, 2009, to include a notation that appellant was sentenced on counts 9, 10, and 11 on August 11, 2009, to 150 days’ jail time on each count, to run concurrent, with credit for time served; and (2) to correct the reference on the abstract of judgment to conviction of counts 7 and 8 by plea and to send a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: GOMES, Acting P.J., FRANSON, J.