Opinion
F072985
04-03-2018
THE PEOPLE, Plaintiff and Respondent, v. GERALD ANTHONY WHARRY, Defendant and Appellant.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 08CM3491)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
On June 16, 2009, a jury convicted appellant Gerald Anthony Wharry of possession of ecstasy (Health & Saf. Code, § 11377, subd. (a)/count 2). The jury, however, was unable to reach a verdict on a count of sale of cocaine base (§ 11352, subd. (a)/count 1) and the court declared a mistrial with respect to that count. In a separate proceeding, Wharry admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and two prior conviction enhancements (§ 11370.2).
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Wharry's prior conviction enhancements were based on his two 2003 convictions for sale or transportation of cocaine in violation of section 11352.
On October 15, 2010, a second jury convicted Wharry of sale of cocaine base. Despite his conviction on the two counts, the court allowed Wharry to remain out of custody on his own recognizance pending sentencing and he absconded. He was apprehended on August 28, 2015.
On November 23, 2015, the court reduced Wharry's possession conviction to a misdemeanor pursuant to Proposition 47 (Pen. Code, § 1170.18) and struck the punishment for one of his prior conviction enhancements. The court then sentenced Wharry to an aggregate term of four years four months, a sixteen-month term on his sale of cocaine conviction (one-third the middle term of four years) and a three-year prior conviction enhancement, which it ran consecutive to a six-year term Wharry was serving in an unrelated case.
On September 30, 2016, Wharry filed a brief contending: (1) he was denied the effective assistance of counsel by defense counsel's failure to object to the prosecutor's misconduct during closing arguments and (2) his abstract of judgment contains a clerical error.
On January 5, 2018, Wharry filed a supplemental brief contending that, based on a recent amendment to section 11370.2, this court should strike his prior conviction enhancement. We agree that Wharry's abstract of judgment contains a clerical error and conclude that the recent amendment to section 11370.2 requires that his prior conviction enhancements be stricken in their entirety and we will modify the judgment accordingly. In all other respects, we affirm.
FACTS
The facts relating to Wharry's conviction for possession of sale of ecstasy is omitted because Wharry does not raise any issues with respect to that conviction.
The prosecution's case established that on August 7, 2008, at approximately 2:30 p.m. Jeremiah Woods, Special Agent with the California Department of Justice, Bureau of Narcotics Enforcement, participated in an undercover narcotics purchase operation for the Kings County Narcotics Task Force at Coe Park in Hanford. During the operation, Woods rode a bicycle to the park, approached a group of men by some park benches and asked if he could get a "20," which was slang for $20 worth of drugs. A man approached him and told him to give him the $20; Woods refused and told him that he had been "ripped off" in the past. A man sitting on a bench less than 20 feet from Woods, whom Woods identified in court as Wharry, then said something like, "Come on, man, here, man," and threw a small rock of cocaine base wrapped in a plastic baggie toward Woods.
After Woods picked up the cocaine, Wharry told him just to drop the $20. Woods threw the money on the ground and rode to a prearranged location where he provided a description of Wharry to Kings County Sheriff's Deputy David Dodd. Dodd then drove with Woods by the park in an undercover car and Woods took a picture of Wharry and the men by the benches. A few minutes later, Deputy Dodd again drove Woods by the park and Woods recorded a short video of the men. Woods also pointed out Wharry to Dodd as the man who sold him the cocaine base so Dodd could have a uniformed officer contact Wharry.
Woods testified that Wharry was wearing jean shorts, low top Converse tennis shoes, and a blue tank top and that none of the other men were similarly dressed.
Later that day or the next morning, Deputy Dodd called Woods to tell him they had identified the man who sold Woods the cocaine base. Deputy Dodd gave him Wharry's name and driver's license number so Woods could retrieve a picture of Wharry from an online database that contained pictures of everyone who had a California driver's license or identification card. Woods retrieved a picture of Wharry, whom he identified to Dodd as the person who sold him the cocaine base.
Deputy Dodd also testified that the rock Wharry threw on the ground weighed approximately .2 grams with the baggie. A presumptive test indicated the rock was cocaine base. The officers did not try to obtain fingerprints from the baggie.
Sergeant Hilyard testified he was driving around in a patrol car about 200 yards away from the drug sale transaction when it occurred, but he was too far away to recognize the suspect who sold drugs to Woods. However, he received a description of how the suspect was dressed and he maintained visual contact with him from the time he received this information until around 10 minutes after the sale when Wharry walked across the park and was detained by Officer Allen. Hilyard responded to that location and he recognized Wharry from past contacts. Wharry also matched the description Hilyard had been provided of the man who sold the cocaine base to Agent Woods. After obtaining Wharry's California identification card number, the officers left. The number allowed the officers to obtain a DMV printout for Wharry.
Gene Pinon, Special Agent with the California Department of Justice, testified that on December 3, 2008, he assisted in arresting Wharry and serving a search warrant at his residence. After Wharry answered the door, Pinon advised Wharry that he had a search warrant for the house and an arrest warrant for him. Wharry stated, "You've got the wrong man" and "It's been a while since I've been to Kings County." He then stated, "It was Frank Connolly who snitched on me, wasn't it?" Later, as he was being placed in an undercover car, Wharry stated, "It was about Coe Park, wasn't it." He also told the officer he had been to Coe Park and that was how the charges came up.
DISCUSSION
The Alleged Prosecutorial Misconduct
Introduction
Wharry contends the prosecutor suggested he was trying to deceive the jury by telling them defense counsel would try to misdirect them, dismissing defense counsel's arguments as something defense attorneys always did, accusing defense counsel of attempting to sway the jury through sympathy, and pitting defense counsel's credibility against that of law enforcement witnesses. Wharry further contends the prosecutor argued facts outside the record. Thus, according to Wharry, by disparaging defense counsel and relying on facts outside the record the prosecutor engaged in prejudicial misconduct.
Wharry acknowledges he forfeited the issue of prosecutorial misconduct during closing arguments by defense counsel's failure to object. (See, e.g., People v. Huggins (2006) 38 Cal.4th 175, 252.) However, he contends that by failing to object, defense counsel denied him the effective assistance of counsel. In order to analyze Wharry's ineffective assistance of counsel claim, we first consider whether the prosecutor engaged in misconduct.
" 'It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets warranted by the evidence." ' " (People v. Wharton (1991) 53 Cal.3d 522, 567-568.) "Although defendant singles out words and phrases, or at most a few sentences, to demonstrate misconduct, we must view the statements in the context of the argument as a whole." (People v. Dennis (1998) 17 Cal.4th 468, 522.) " 'Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Ochoa (1998) 19 Cal.4th 353, 427.) The Statements that Defense Counsel Would Try to Misdirect Them
During cross-examination of Agent Woods, defense counsel established that Woods did not recall what the first man he spoke with at the park was wearing or anything else that stood out about the man. Agent Woods, however, explained that he did not try to remember these details about the man because he did not buy drugs from him.
In his initial closing argument, the prosecutor argued,
"The defense will try to misdirect you, to make you think about every single possible thing. You know, the officer, he walked up there and this guy came out asked you for money. [¶] What did he look like? [¶] ... [¶] Couldn't point him out. Don't remember him, and Officer Woods told you 'I don't remember him. I mean, I remember talking to him, but I couldn't give you a description of that person specifically because I wasn't concerned about that person. My job is I assess whether or not that person is a danger to me. Is he a danger to me? No. Is this person going to give me drugs. No. Move on.' " (Italics added.)
The prosecutor then analogized Agent Woods's conduct with that of the soldiers who searched for Saddam Hussein. He argued that during the search, soldiers would assess people they encountered for the danger they posed, just as Agent Woods did with the man who did not sell him drugs, and that with the passage of time, the soldiers would not remember what the people they encountered looked like because they did not focus on them.
During his rebuttal argument, the prosecutor argued:
"Recall what I told you when I gave you the initial closing ... the defense is going to do everything to misdirect you away from what actually happened; make you think about all the stuff that doesn't matter and for some reason because of the other stuff her client is not guilty." (Italics added.)
It is prosecutorial misconduct for the prosecutor to disparage defense counsel in front of the jury. (People v. Young (2005) 34 Cal.4th 1149, 1193 [accusing defense counsel of lying to the jury]; People v. Cummings (1993) 4 Cal.4th 1233, 1302 [accusing defense counsel of engaging in deception to the jury].) However, "[the California Supreme Court has] found no impropriety in [more egregious] prosecutorial remarks. (E.g., [People v.] Stitely [(2005)] 35 Cal.4th 514, 559-560 [argument that jurors should avoid ' "fall[ing] for" ' defense counsel's ' "ridiculous" ' and ' "outrageous" ' attempt to allow defendant to ' "walk" free' by claiming he was guilty only of second degree murder]; People v. Gionis (1995) 9 Cal.4th 1196, 1215-1216 [argument that defense counsel was talking out of both sides of his mouth and that this was ' "great lawyering" ']; People v. Breaux (1991) 1 Cal.4th 281, 306-307 [argument that law students are taught to create confusion when neither the law nor the facts are on their side, because confusion benefits the defense]; People v. Bell (1989) 49 Cal.3d 502, 538 [argument that defense counsel's job is to ' "confuse[ ]" ' and ' "throw sand in your eyes," ' and that counsel ' "does a good job of it" '].)" (People v. Zambrano (2007) 41 Cal.4th 1082, 1155.)
The prosecutor's statements not to let defense counsel "misdirect" them were much less egregious than the comments cited above that were found not to constitute prosecutorial misconduct. Further, as noted above, during his cross-examination of Agent Woods, defense counsel established that Woods could not provide a description of the man who first offered to sell him drugs to suggest, among other things, that his memory was flawed. However, the inability to provide a description of that man was of marginal relevance in undermining Woods's credibility because as explained by Woods, he did not have a reason to remember how the man looked. The prosecutor's quoted comments were clearly based on the defense's cross-examination and were a fair characterization of one of the arguments the prosecutor apparently anticipated the defense would make. The comments were also clearly aimed at the merits of that argument. They did not constitute misconduct. Dismissing Defense Arguments as Something Defense Counsel "Always Did"
During his rebuttal argument, the prosecutor argued:
"What does the defense try to make you think about? Every single defense attorney talks about the same thing and that obviously they're more skilled than the officers and they criticize the officer's work. 'The officers didn't do a better job and because they didn't do a better job you should acquit my client.' Although they have little experiences, they always think that they know what should have happened. [¶] These officers, you have officers with as many as 20 years involved in cases making decisions based on what they've been involved with before, but it's something the defense always wants you to think about." (Italics added.)
Later, in addressing the poor quality of Agent Woods's photograph of Wharry and the men by the bench that was introduced into evidence, the prosecutor argued that "[defense counsel] [a]lways talk about how bad the photographs are" before explaining why Agent Woods did not obtain a better quality photograph. In addressing the defense argument that "testing" the "drugs" for fingerprints would have provided "corroboration" as to who handled the drugs, the prosecutor argued, "They also talk about prints." He then argued that no one testified that prints could be retrieved from a "little ... plastic baggie" or that anybody tried. After noting there was no evidence to contradict Agent Woods's testimony that Wharry sold him drugs, the prosecutor argued that the defense will always argue that a key prosecution witness lied.
The prosecutor attributed the poor quality of the photograph to the men being in the shade and the photograph being surreptitiously taken through the window of a moving car. --------
Wharry contends the prosecutor engaged in misconduct by dismissing the defense arguments as arguments that defense attorneys always made because by doing so, the prosecutor referred to matters outside the record and it was irrelevant whether defense attorneys always made the same arguments.
In People v. Hill (1998) 17 Cal.4th 800, the Supreme Court found that the prosecutor engaged in prosecutorial misconduct when she stated during closing argument that the jury would hear defense arguments that prosecutors always hear, which implied that "the defense arguments were stock arguments and should be disregarded." (Id. at p. 838.) Nevertheless, although there were several instances where the prosecutor asserted facts before the jury that were not in the record or mischaracterized facts that did appear in the record, the court noted that the comments were brief and mild and thus could not have been prejudicial alone. (Ibid.)
Here, although the prosecutor made four statements that implied that "the defense arguments were stock arguments," the statements were also mild and brief and, thus, could not have been prejudicial alone. The Alleged Attempt by Defense Counsel to Sway the Jury by Improperly Appealing to their Sympathy
During his rebuttal argument, the prosecutor argued:
"They always try to argue sympathy, you know, 'My poor client, but for the grace of God, you know, your son, your mother, your brother or whoever can be put into jail.' What is that about? What has that got to do with this case? There are individuals that have had family members incarcerated for a number of reasons.
"Your job, first off, is not to consider punishment, because that would be up to the judge if he's convicted. That's not your job. Your job is to look and see whether or not all the elements of the crime were proven, not to feel sorry for him because he may, in fact, be guilty of this crime if you make that decision, but they want you to feel sorry. This could be your
brother. This could be your brother they're prosecuting right now, and you don't want to convict him. Once again, what has that got to do with the buy that happened on the 7th of August? Something to try to distract you away from the actual event."
Wharry contends that through the argument quoted above the prosecutor unjustifiably accused defense counsel of making an improper argument by "attempting to sway the jury through impermissible arguments about sympathy." Thus, according to Wharry, the argument amounted to prosecutorial misconduct because it mischaracterized the defense's argument and was an unfounded attack on defense counsel's credibility. Not so.
"[A]n appeal for sympathy for the victim [or defendant] is out of place during an objective determination of guilt." (People v. Stansbury (1993) 4 Cal.4th 1017, 1057.)
During closing argument defense counsel argued that when the officer approached Wharry "there was no [marked] 20 [dollar bill]" and subsequently there was no attempt to retrieve fingerprints from the plastic baggie the cocaine base was in. She further argued that if Wharry had the bill or his fingerprints were found on the plastic baggie this would have corroborated Woods's testimony. Defense counsel then argued:
"Again, we have the [online] photograph [of Wharry] and the investigation goes off and running. Safeguards were there to be utilized and none of them point to [Wharry]. But for the grace of God there go I, or my kid, or someone's kid, brother, sister." (Italics added.)
By asserting that the "safeguards" would have shown that he was innocent and that the failure to use them could result in the unwarranted prosecution of other innocent people including the jurors or their family members, defense counsel was clearly appealing to the jurors' sympathies. Accordingly, we conclude that the prosecutor's argument quoted above did not mischaracterize the defense's argument and was not an attack on defense counsel's credibility. Pitting Defense Counsel's Credibility Against the Officers' Credibility
During closing argument, defense counsel criticized the sting operation and Agent Woods extensively. For example, she criticized Woods because he should have had training "in identifying people," but he could not remember the number of men at the park, any distinguishing marks on them, or the appearance of the man who first spoke to him. She also criticized the officers for not attempting to determine whether Wharry had the marked $20 bill in his possession, for using marked money if the officers did not intend to make an immediate arrest, and for not "testing" the plastic baggie the cocaine base was in for fingerprints.
As noted earlier, during his rebuttal argument, the prosecutor argued that defense attorneys with little experience always try to criticize officers who have as much as 20 years of experience (ante, at p. 8). Wharry contends that by doing so, the prosecutor pitted the credibility of defense counsel against that of the prosecution's law enforcement witnesses and he made "defense counsel's experience, and that of her profession, an issue for the jury." Wharry further posits that this resulted in the prosecution exhorting the jury to disregard defense counsel's arguments because she, like other members of her profession, lack the same experience as law enforcement witnesses. Thus, according to Wharry, just as it is improper for prosecutors to bolster their case by "invoking their ... reputation, or depth of experience," (People v. Seumanu (2015) 61 Cal.4th 1293, 1329), conversely it was improper to denigrate defense counsel's reputation or lack of experience.
Defense counsel did not present any evidence to support her extensive criticism of the sting operation that resulted in Wharry's arrest. Instead, she based her criticism in large part on her logic and perception of what officers could have done or did not do to corroborate Agent Woods's testimony that Wharry sold him drugs. By doing so, defense counsel put her own credibility at issue, at least with respect to her knowledge of police tactics. Further, the prosecutor's criticism of defense counsel was clearly directed at defense counsel's knowledge of police tactics and not at her experience as an attorney. Thus, we reject Wharry's contention that the comments quoted above amounted to prosecutorial misconduct because they denigrated her reputation or lack of experience as an attorney. Arguing Facts Outside the Evidence
During his rebuttal argument the prosecutor argued:
"They tell you why didn't Officer Allen get up and testify? Because Officer Hilyard said the exact same thing he would have said. We don't have to call every witness, and the Court told you that defense doesn't have to call every witness."
Later the prosecutor argued:
"They also talk about prints. CSI is a wonderful, wonderful show, but it's not reality. They want to show you that a little baggie, plastic baggie, crumbled up is something that they can get prints off. Nobody testified to that. It's something that nobody was even asked as to whether they tried to get prints off of something like that.
"Once again, common sense. This is a small item ... that would be difficult to get prints off of, but once again, they want you to think about that rather than what actually happened." (Italics added.)
Wharry contends that by telling the jury that Officer Allen would have corroborated Sergeant Hilyard's testimony and that the plastic baggie the cocaine base was in was a small item and difficult to get prints from, the prosecutor engaged in misconduct by referring to evidence outside the record.
A prosecutor's reference, during closing arguments, to facts not in evidence "is 'clearly ... misconduct' [citation], because such statements 'tend[ ] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.]' [Citations.] 'Statements of supposed facts not in evidence ... are a highly prejudicial form of misconduct, and a frequent basis for reversal.' " (Hill, supra, 17 Cal.4th at p. 828.)
By arguing that Sergeant Hilyard testified to "the exact same thing" Officer Allen would have testified to, the prosecutor clearly argued facts not in evidence because Officer Allen did not testify. However, the evidence showed that Officer Allen was involved only in detaining Wharry after the sale and in obtaining his California driver's license number from him. Since the defense did not dispute that this occurred, the facts not in evidence that Hilyard testified to were cumulative to his own testimony and uncontroverted. Thus, the prejudicial impact of the prosecutor's reference to what Officer Allen would testify to was minimal.
The prosecutor's argument about fingerprints, however, did not refer to facts not in evidence. Wharry sold Agent Woods only .2 grams of cocaine base wrapped in a plastic baggie. In arguing that it would be difficult to obtain fingerprints from a small, crumpled baggie, the prosecutor did not present this as an established fact. Instead, he essentially argued that if the jurors used their common sense they would conclude that it would be difficult to get fingerprints from the baggie because it was too small and crumpled. Thus, the prosecutor's statement about fingerprints was not misconduct. Wharry was not Denied the Effective Assistance of Counsel
" ' "[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness ... under prevailing professional norms.' [Citation.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" [Citation.]' " (People v. Weaver (2001) 26 Cal.4th 876, 925.) "[W]hen considering a claim of ineffective assistance of counsel, 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
The prosecution evidence established that during an ongoing sting operation on August 7, 2008, Agent Woods, while in full view of other officers participating in the sting, purchased a small amount of cocaine base from a man at Coe Park in Hanford. Woods provided a description of the man to the other officers involved in the sting, which allowed Sergeant Hilyard to keep the man in his sight until Officer Allen was able to detain him. Hilyard then went to the location where the man was detained and from prior contacts with him, he recognized the man as Wharry. The officers obtained Wharry's driver's license number, which they used to confirm the identification with information and a picture that they obtained from an online database. Agent Woods was provided information that allowed him to obtain a picture of Wharry from the database and he confirmed that Wharry was the man in the park who sold him the cocaine base.
Four months later, when officers served an arrest warrant and a search warrant on Wharry at his residence, he made some incriminating statements that corroborated Agent Woods's testimony that Wharry sold him drugs. When officers first arrived at the house, Wharry complained that a Frank Connolly had "snitched" on him. Although Wharry initially stated he had not been to Kings County in some time, he subsequently told an officer that his arrest and the search of his residence had to do with him having been at Coe Park. The jury could reasonably find these statements reflected a consciousness of guilt because they indicated Wharry initially suspected the warrants were based on his sale of cocaine base to Agent Woods and by the time he was taken into custody he had determined that to be the case. Thus, the prosecution presented an exceptionally strong case that Wharry was guilty of sale of cocaine base.
The defense did not refute the prosecution's case with any evidence. Further, the prejudicial effect of any misconduct was diminished by the court's instruction to the jury that nothing the attorneys said was evidence. (People v. Hughey (1987) 194 Cal.App.3d 1383, 1396.) In view of the foregoing and the minimal prejudicial impact of the prosecutorial misconduct that did occur, it is not reasonably probable Wharry would have received a more favorable outcome in the absence of the misconduct. Thus, we conclude that Wharry was not denied the effective assistance of counsel. The Abstract of Judgment
Wharry contends his abstract of judgment erroneously states in section 16 that his presentence custody credit was calculated pursuant to Penal Code section 2933.1 rather than Penal Code section 4019. Respondent concedes and further posits that the minute order of Wharry's November 23, 2015, sentencing hearing should be corrected too. We agree with respondent and we will direct the trial court to issue an amended minute order and an amended abstract of judgment that corrects this error. The Section 11370.2 Enhancement
Senate Bill No. 180 (2017-2018 Reg. Sess.), which became effective on January 1, 2018, amends section 11370.2 to limit the scope of the enhancement to apply only to prior convictions for violations of section 11380 (Stats. 2017, ch. 677, § 1). As amended, the enhancement no longer applies to Wharry's prior convictions for violations of sections 11352.
Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute's operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Because there is no indication that the recent amendments to section 11370.2 were intended to operate prospectively only, the two prior conviction enhancements pursuant to section 11370.2 Wharry admitted, including the one for which the court imposed a three-year enhancement term, must be stricken.
DISPOSITION
The judgment is modified to strike the two prior conviction enhancements pursuant to section 11370.2 Wharry admitted, including the one for which the court imposed a three-year enhancement term. The trial court is directed to issue an amended abstract of judgment that does not include these enhancements and that in section 16 indicates that Wharry's presentence custody credit was calculated pursuant to section 4019, and to forward a certified copy to the appropriate authorities. The trial court is also directed to issue an amended minute order for Wharry's November 23, 2015, sentencing hearing that indicates that his presentence custody credit was calculated pursuant to Penal Code section 4019. As modified, the judgment is affirmed.