Filed 5/28/15 P. v. Peoples CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040044
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS111396)
v.
TIMOTHY PEOPLES,
Defendant and Appellant.
STATEMENT OF THE CASE
In superior court case number SS090914A, a complaint charged defendant
Timothy Peoples with two counts of assault by a life prisoner by means of force likely to
produce great bodily injury (Pen. Code, § 4500),1 two counts of attempted murder of a
custodial officer (§§ 664, subd. (e)/187), and two counts of criminal threats (§ 422), with
an allegation of four prior strike convictions (§ 1170.12, subd. (c)(2)). In superior court
case number SS111396A, a complaint charged defendant with two counts of battery by
an inmate on a non-prisoner (§ 4501.5) and one count of battery upon a prison officer by
an inmate (§ 4501.1), with an allegation of four prior strike convictions (§ 1170.12,
subd. (c)(2)).
1
Subsequent unspecified statutory references are to the Penal Code.
On May 2, 2012, the trial court ordered the two cases to be consolidated. It
designated case number SS111396A as the lead case number.
A consolidated information, filed on August 6, 2012, charged defendant with two
counts of assault by a life prisoner by means of force likely to produce great bodily injury
(§ 4500; counts 1 and 2), two counts of attempted murder of a custodial officer (§§ 664,
subd. (e)/187, subd. (a); counts 3 and 4), two counts of criminal threats (§ 422; counts 5
and 6), two counts of battery by an inmate on a non-prisoner (§ 4501.5; counts 7 and 9),
and one count of battery upon a prison officer by an inmate (§ 4501.1; count 8). The
information alleged that defendant had four prior strike convictions (§ 1170.12,
subd. (c)(2)).
On February 14, 2013, a jury returned guilty verdicts on counts 1, 2, 5, 6, 8, and 9.
The jury returned verdicts of not guilty on counts 3, 4, and 7. On February 20, 2013, the
trial court found the strike allegations to be true. On August 8, 2013, the trial court
sentenced defendant to a prison term of 104 years to life.
Defendant now appeals from the judgment of conviction, arguing that the trial
court erred in denying a Marsden2 motion and a Faretta3 motion. He additionally asserts
that the abstract of judgment must be modified to accurately describe the convictions in
counts one and two. As set forth below, we will order the abstract of judgment modified
to accurately describe counts one and two, and we will affirm the judgment in all other
respects.
2
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3
Faretta v. California (1975) 422 U.S. 806 (Faretta)
2
DISCUSSION4
I. The Trial Court Did Not Err in Denying Defendant’s Marsden Motion
Defendant contends that the judgment of conviction must be reversed because the
trial court erred in denying his Marsden request for appointment of substitute counsel.
As explained below, we conclude that the trial court did not abuse its discretion in
denying defendant’s Marsden motion.5
A. Background
On August 10, 2011, the trial court appointed Kimberly Barnett to represent
defendant in case number SS111396A. On September 1, 2011, defendant made a
Marsden request for appointment of substitute counsel in case number SS111396A. The
trial court continued the matter to September 8, 2011 for a hearing on the Marsden
motion.
At the Marsden hearing on September 8, 2011, defendant explained that Barnett
was representing him in case number SS090914A, and that he and Barnett had “multiple
conflicts” in that case. Defendant expressed his dissatisfaction with Barnett’s
representation in case number SS090914A: “[I]n my other case, I have to try to salvage
the defense that she messed up in that case. She has not filed any motions that is actually
in my interest. She suppressed everything as far as evidence is concerned in the interest
of the prosecution, which I can actually prove. She has done everything to diminish my
whole defense.” The trial court asked defendant to describe the evidence that Barnett had
suppressed in case number SS090914A, and defendant stated that Barnett had suppressed
4
The facts of defendant’s crimes are irrelevant to the issues presented on appeal.
We therefore will not summarize those facts.
5
Defendant made several Marsden motions during the course of the proceedings.
His argument and the facts he cites in his argument are limited to the Marsden motion
that was made on September 1, 2011 and ruled upon on September 8, 2011. We
therefore will evaluate only that Marsden motion.
3
a baton that officers used to hit him. Defendant noted that he had filed “a writ of
mandate and prohibition in the 6th Appellate Court against [Barnett]” and a State Bar
complaint against Barnett. Defendant also asserted that Barnett was a liar with whom he
had no working relationship: “[T]here ain’t going to never be no working relationship
between me and her. I cannot stand the lady. The lady is no more than a habitual liar.
That’s all she ever would do is lie.”
The trial court summarized defendant’s arguments: “So let me just summarize to
make sure I understand your complaints with regard to Ms. Barnett. You are not happy
that she was appointed to represent you in this case; that you do not like her, and you
indicated that she is a habitual liar, and you do not feel she should represent you in this
case because you don’t like her.” In response to the trial court’s summary, defendant
responded, “Yeah.” Defendant then added that, in case number SS090914A, Barnett
“lied right to the judge” about “researching some witnesses” and “a gang of stuff.”
Defendant also noted that Barnett had refused to “fil[e] things against judges and
attorneys.”
The trial court asked Barnett to respond to defendant’s complaints. Barnett
explained that defendant “wanted to file a 170.6 motion” against the trial judge in case
number SS090914A. Barnett “did not concur with” the motion, but she nonetheless
helped defendant to file the motion on his own. She described the writ petition and State
Bar complaint that defendant had filed: “His writ in the 6th District is basically a request
for his case to be dismissed. [¶] As far as his referring me to the state Bar for discipline
or misconduct, the state Bar sent him a letter in July 2011 stating that he had not cited
any reasons for discipline by the state Bar and that they had closed that file.”
Barnett responded to defendant’s allegation that she conspired with the
prosecution: “[Defendant] has accused me of conspiring with the prosecution . . . . My
feelings for the prosecution are probably similar to his feelings for me. So I do not
conspire with the prosecution. My goal is to defend him to the best of my ability. I do
4
not offer the prosecution evidence they shouldn’t have. And I certainly don’t play nice
with the prosecution.” She also responded to defendant’s allegation that she had
suppressed a baton, explaining that “nowhere in the discovery does it state that a baton
was utilized on [defendant].”
Barnett noted that, before she was appointed to represent defendant in case
number SS090914A, six other attorneys had represented him in that case. She explained
that the previous attorneys had “working relationship” problems with defendant. She
conceded that that she and defendant also had a “communication problem,” explaining
that defendant “doesn’t want to participate” and had refused to see her on an occasion
when she attempted to meet with him. She emphasized, however, that she could
competently represent defendant: “I come from a position where just because a client—
you have communication problems, and it’s difficult to work with a client, it doesn’t
necessarily cause a conflict. We work through that. My duty to him is to be sure that he
has all of his rights met; a proper representation put forth; that no stone is left unturned as
far as discovery and witnesses. Those are the things that I’m doing. And just because he
doesn’t want to participate doesn’t necessarily show me that that’s a conflict.” She noted
that she had hired an additional investigator to facilitate better communication with
defendant and to ensure a thorough investigation.
Barnett finally denied defendant’s accusation that she was a liar. She stated that
she had never lied in a court proceeding. She emphasized: “I take great pains to be sure
that I’m truthful and forth right [sic] with the Court, as I am with my clients.” She
explained that she had been “truthful and honest” in all of her dealings with defendant.
The trial court provided defendant an opportunity to respond to Barnett’s
comments. Defendant asserted that his State Bar complaint against Barnett was “still
opened.” He also asserted that his pending writ petition was “based on ineffective
assistance of counsel.” He complained that Barnett took no action after he informed her
that he had been hit with a baton in case number SS090914A. He then repeatedly stated
5
that Barnett was a liar, and he emphasized that he would rather represent himself than
have Barnett represent him.
When defendant finished speaking, the trial court made a finding that Barnett was
“not a liar.” As the trial court was making the finding, defendant interrupted. Defendant
stated: “I’ll tell you what, we ain’t got to go through this. Here is my Ferretta [sic]
motion. You can hear that and she can take her ass on about her business plain and
simple, because she is a damn liar.” After defendant’s outburst, the trial court made a
finding that Barnett was “credible,” “forthright,” and had “made honest representations”
in court. Defendant again interrupted, stating: “You’re full of shit. Just take my
Ferretta [sic] motion.” Following this second interruption, the trial court noted that
defendant had “done numerous things to get in the way” of Barnett’s representation, yet
Barnett was still willing to represent him and had gone “above and beyond” in securing
an additional investigator for defendant’s case. Defendant responded to the trial court’s
comments, stating: “She is a damn liar, like I said. And you’re a damn liar just as well
as she is.” Following defendant’s comment, the trial court stated that Barnett was
“willing and able” to “provide professional representation” with defendant’s “best
interest at heart,” and it denied defendant’s Marsden motion.
B. Legal Principles and the Standard of Review
“The seminal case regarding the appointment of substitute counsel is Marsden,
supra, 2 Cal.3d 118, which gave birth to the term of art, a ‘Marsden motion.’ ” (People
v. Smith (1993) 6 Cal.4th 684, 690 (Smith).) Marsden held that a criminal defendant has
a right to substitute counsel on a proper showing that the constitutional right to counsel
would otherwise be substantially impaired. (Marsden, supra, 2 Cal.3d at p. 123; see
People v. Nakahara (2003) 30 Cal.4th 705, 718.)
“When a defendant seeks new counsel on the basis that his appointed counsel is
providing inadequate representation—i.e., makes what is commonly called a Marsden
motion [citation]—the trial court must permit the defendant to explain the basis of his
6
contention and to relate specific instances of inadequate performance. A defendant is
entitled to relief if the record clearly shows that the appointed counsel is not providing
adequate representation or that defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to result.” (People v. Smith
(2003) 30 Cal.4th 581, 604.)
A defendant’s “mere failure to get along with or have confidence in counsel” does
not constitute an adequate basis for granting a Marsden motion. (People v. Bills (1995)
38 Cal.App.4th 953, 961.) “A defendant may not effectively veto an appointment of
counsel by claiming a lack of trust in, or inability to get along with, the appointed
attorney.” (People v. Smith, supra, 30 Cal.4th at p. 606.) A defendant “may not force the
substitution of counsel by his own conduct that manufactures a conflict.” (Smith, supra,
6 Cal.4th at p. 696.)
“A defendant does not have the right to present a defense of his own choosing, but
merely the right to an adequate and competent defense. [Citation.] Tactical
disagreements between the defendant and his attorney do not by themselves constitute an
‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional
counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental
decisions for the defendant.’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 728-
729 (Welch).) Thus, complaints that “mostly show disagreement as to tactics” are
“insufficient to compel discharge of appointed counsel.” (People v. Cole (2004) 33
Cal.4th 1158, 1192 (Cole).)
“Substitution of counsel lies within the court’s discretion.” (People v. Smith,
supra, 30 Cal.4th at p. 604.) “We review a trial court’s decision declining to discharge
appointed counsel under the deferential abuse of discretion standard.” (Cole, supra, 33
Cal.4th at p. 1190.) To the extent that there is a “credibility question between defendant
and counsel” at a Marsden hearing, the trial court is “ ‘entitled to accept counsel’s
explanation.’ ” (Smith, supra, 6 Cal.4th at p. 696.)
7
C. The Trial Court Did Not Abuse its Discretion
At the Marsden hearing, defendant made the following allegations in support of
his request for substitute counsel: Barnett was a “habitual liar” who lied to the judge in
case number SS090914A, Barnett “suppressed” evidence “in the interest of the
prosecution” in case number SS090914A, Barnett failed to file motions against “judges
and attorneys” in case number SS090914A, defendant “cannot stand” Barnett, and there
would never be a “working relationship” between defendant and Barnett. In response to
defendant’s allegations, Barnett asserted the following: she had never lied to defendant
and had never lied in a court proceeding, she had not conspired with the prosecution in
any way, she helped defendant to file a motion on his own when she did not concur with
the motion, her communication problem with defendant was caused by defendant’s
failure to participate, and she had hired an additional investigator to facilitate better
communication with defendant. Throughout the Marsden hearing, Barnett emphasized
that she was willing and able to present a vigorous defense notwithstanding defendant’s
failure to participate.
Defendant’s allegations at the Marsden hearing failed to establish that he was
entitled to appointment of substitute counsel. A claim of “inability to get along with”
counsel is insufficient to compel appointment of substitute counsel. (People v. Smith,
supra, 30 Cal.4th at p. 606.) Thus, defendant’s claims that he could not stand Barnett and
could not have a working relationship with Barnett were insufficient grounds for
substitution of counsel. Nor did defendant’s claim that Barnett was a liar compel
appointment of substitute counsel—the trial court specifically found that Barnett was
“credible,” “not a liar,” and had “made honest representations” in court. (See Smith,
supra, 6 Cal.4th at p. 696 [when there is a credibility question between defendant and
counsel, the trial court is entitled to accept counsel’s explanation].) Defendant’s claims
regarding Barnett’s representation in case number SS090914A were also insufficient to
require appointment of substitute counsel. Barnett’s failure to heed defendant’s request
8
to file motions “against judges and attorneys” in case number SS090914A was a tactical
decision and did not necessitate appointment of substitute counsel. (See Cole, supra, 33
Cal.4th at p. 1192 [tactical disagreements are insufficient to compel discharge of
appointed counsel].) Barnett stated that she had not conspired with the prosecution in
case number SS090914A, a statement which the trial court found to be credible. Despite
all of defendant’s complaints, Barnett emphasized that she could vigorously defend
defendant and would work to secure better communication with defendant. Given the
foregoing record, we cannot conclude that defendant was entitled to substitute counsel.
Indeed, “[n]othing in the record here shows that [Barnett] was incompetent or would not
provide adequate representation if [she] received defendant’s cooperation.” (People v.
Michaels (2002) 28 Cal.4th 486, 523.) We therefore conclude that the trial court did not
abuse its discretion in denying defendant’s Marsden motion.
Defendant contends that his State Bar complaint against Barnett and his writ
petition that asserted ineffective assistance by Barnett created a conflict of interest
between him and Barnett that necessitated appointment of substitute counsel. We are not
persuaded. Defendant’s comments at the Marsden hearing suggested that the State Bar
complaint and writ petition contained complaints similar to the allegations defendant
made in connection with the Marsden motion. As we explained above, those allegations
were insufficient to compel appointment of substitute counsel. Moreover, a defendant
cannot manufacture a conflict of interest by simply filing a lawsuit or State Bar complaint
against his attorney. (See People v. Hardy (1992) 2 Cal.4th 86, 138.) We thus conclude
that the existence of the State Bar complaint and writ petition did not necessitate
appointment of substitute counsel.
Defendant also contends that the trial court erred because it did not provide him an
opportunity to fully explain his complaints against Barnett. He emphasizes that, at points
during the Marsden hearing, the trial court asked him to limit his discussion to case
number SS111396A and to refrain from discussing case number SS090914A. This
9
argument is unconvincing. The trial court’s requests for defendant to refrain from
discussing case number SS090914A were largely made in response to defendant’s
complaints about the trial judge’s actions in case number SS090914A. The trial judge’s
actions in case number SS090914A were irrelevant to defendant’s Marsden motion in
case number SS111396A. Moreover, the record shows that the trial court provided
defendant an ample opportunity to voice his concerns regarding Barnett, including his
objections to Barnett’s representation in case number SS090914A. The trial court
permitted defendant to describe an alleged conspiracy between Barnett and the
prosecution in case number SS090914A, Barnett’s alleged suppression of evidence in
case number SS090914A, Barnett’s alleged lies to the trial judge in case number
SS090914A, and Barnett’s refusal to file certain motions in case number SS090914A.
Indeed, after the trial court summarized defendant’s complaints regarding Barnett, the
trial court permitted defendant to reiterate some of his concerns regarding Barnett’s
representation in case number SS090914A. Thus, on the record before us, we cannot
conclude that the trial court failed to permit defendant to fully describe his complaints
against Barnett.
In summary, for the foregoing reasons, we conclude that the trial court did not
abuse its discretion in denying defendant’s Marsden motion. We therefore will not
reverse the judgment due to the trial court’s refusal to appoint substitute counsel.
II. The Trial Court Did Not Err in Denying Defendant’s Faretta Motion
Defendant contends that the judgment of conviction must be reversed because the
trial court erred in denying his Faretta motion for self-representation. As explained
below, we conclude that the trial court did not abuse its discretion in denying defendant’s
Faretta motion.
A. Background
Immediately after the trial court denied the Marsden motion at the
September 8, 2011 hearing, defendant stated that he wanted to make a Faretta motion for
10
self-representation. The trial court set the matter for a Faretta hearing on
September 20, 2011. After the trial court set the date for the Faretta hearing, defendant
stated to the trial court: “I’ll be filing with the Commission of Judicial Performance
against you as soon as I get back. You’re full of shit. Fucken [sic] lying ass mother
fucker is what you is, bitch.”
At the Faretta hearing on September 20, 2011, the trial court inquired into
defendant’s knowledge of the charges against him, his understanding of the rights he
would waive if he represented himself, and his experience and familiarity with trial
procedures. As the trial court conducted this inquiry, defendant repeatedly interrupted.
After defendant had interrupted several times, the trial court advised defendant: “[Y]ou
keep interrupting the Court. So these are the kinds of procedures and processes that can’t
be allowed if you are representing yourself.” The trial court then began to discuss court
documents that defendant had submitted, and it expressed concern about defendant’s
“familiarity with the law.” Defendant continued to interrupt. The trial court warned:
“You continue to interrupt the Court. That is exactly what cannot be allowed in this type
of proceeding or in any type of proceeding if you’re going to be representing yourself.”
The trial court proceeded with the hearing, and defendant again interrupted. The trial
court warned defendant that he was continuing to interrupt, and defendant responded,
“Shit.”
The trial court then noted that it had reviewed transcripts of prior court
proceedings in which defendant had been disruptive. Defendant again interrupted and
expressed frustration with Barnett. Defendant said to Barnett, “I’m going to beat the
living fuck out of you before you even consider representing me. You might as well stop
your taunting shit.” The trial court warned defendant that “making threats in the
courtroom is completely inappropriate,” and defendant accused the trial court of “damn
judicial corruption.” Defendant yelled, “[F]uck this Court.” The trial court noted that
defendant was “yelling at the Court.” The trial court resumed commenting on the
11
transcripts of prior proceedings, noting that the transcripts showed defendant had
interrupted on “numerous occasions” and “was forcibly removed on four occasions for
acting out in court.” Defendant continued to interrupt and accused the trial court of
“violat[ing] the damn law.”
The trial court finally denied defendant’s Faretta motion. The trial court
explained: “What the Court is seeing . . . today in significant fashion by the defendant’s
continued interruptions of the Court as well as his outbursts that he doesn’t have the
ability to abide by the rules and procedure of courtroom protocol. He’s continuously
manifested an inability to conform his conduct to the procedural rules and courtroom
protocol.”
B. Legal Principles and the Standard of Review
In Faretta, supra, 422 U.S. 806, the United States Supreme Court recognized that
“a defendant in a state criminal trial has a constitutional right to proceed without
counsel.” (Id. at p. 807.) A defendant “has a Sixth Amendment right to conduct his own
defense, provided only that he knowingly and intelligently forgoes his right to counsel
and that he is able and willing to abide by rules of procedure and courtroom protocol.”
(McKaskle v. Wiggins (1984) 465 U.S. 168, 173.)
“The right of self-representation is not a license to abuse the dignity of the
courtroom. Neither is it a license not to comply with relevant rules of procedural and
substantive law.” (Faretta, supra, 422 U.S. at p. 834, fn. 46.) “A constantly disruptive
defendant who represents himself, and who therefore cannot be removed from the trial
proceedings as a sanction against disruption, would have the capacity to bring his trial to
a standstill.” (Welch, supra, 20 Cal.4th at p. 734.) “Thus, a trial court must undertake the
task of deciding whether a defendant is and will remain so disruptive, obstreperous,
disobedient, disrespectful or obstructionist in his or her actions or words as to preclude
the exercise of the right to self-representation.” (Id. at p. 735.) A trial court properly
12
denies a request for self-representation where the defendant exhibits disruptive behavior
in the courtroom. (Ibid.)
We review a trial court’s denial of a self-representation motion for abuse of
discretion. (Welch, supra, 20 Cal.4th at p. 735.) The trial court’s ruling “ ‘will not be
disturbed in the absence of a strong showing of clear abuse.’ ” (Ibid.)
C. The Trial Court Did Not Abuse its Discretion
Before the trial court denied defendant’s Faretta motion, defendant repeatedly
engaged in disruptive behavior in the courtroom: he constantly interrupted when the trial
court was speaking, he continued to interrupt despite the trial court’s many warnings to
cease interrupting, he frequently cursed, he directed expletives at the trial court and his
attorney, he yelled when he addressed the trial court, and he threatened violence against
his attorney. Given defendant’s disruptive, disrespectful conduct and his failure to heed
the many warnings to cease interrupting, it was apparent that defendant was unable and
unwilling to abide by the rules of courtroom procedure and protocol. The trial court
therefore did not abuse its discretion in denying defendant’s Faretta motion for self-
representation.
Defendant contends that his disruptive outbursts were merely a reaction to the
denial of his Marsden and Faretta motions and therefore those outbursts did not establish
his inability to abide by the rules of courtroom procedure and protocol. Defendant
correctly asserts that disruptive behavior following the denial of a Faretta motion should
not be considered when determining whether a trial court erred in denying a Faretta
motion. (Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1530-1531.) His
argument fails, however, because the record shows that he continuously engaged in
disruptive conduct before the trial court denied his Faretta motion and repeatedly
engaged in disruptive conduct before the trial court denied his Marsden motion. Because
defendant constantly engaged in disruptive conduct, and did not merely make angry
13
outbursts following the denial of his Marsden and Faretta motions, the trial court did not
err in denying defendant’s request for self-representation.
Defendant finally contends that the trial court abused its discretion because it
expressed concern regarding his familiarity with the law. As defendant correctly asserts,
a “defendant’s ‘technical legal knowledge’ is ‘not relevant’ to the determination whether
he is competent to waive his right to counsel.” (Godinez v. Moran (1993) 509 U.S. 389,
400.) Although the trial court here did express concern regarding defendant’s familiarity
with the law, that was not the basis for the denial of defendant’s Faretta motion. Rather,
the trial court emphasized that it was denying the Faretta motion due to defendant’s
disruptive courtroom behavior. Moreover, even if the trial court had denied the Faretta
motion due to defendant’s unfamiliarity with the law, reversal would not be required.
When a trial court denies a Faretta motion for an improper reason, a reviewing will
uphold the ruling “if the record as a whole establishes defendant’s request was
nonetheless properly denied on other grounds.” (People v. Dent (2003) 30 Cal.4th 213,
218.) Here, because defendant’s disruptive conduct provided a proper ground for denial
of his Faretta motion, the trial court’s comments regarding defendant’s unfamiliarity
with the law do not provide a basis for reversal.
In summary, we conclude that the trial court did not abuse its discretion in denying
defendant’s Faretta motion for self-representation. We therefore will not reverse the
judgment of conviction due the trial court’s refusal to let defendant proceed in propria
persona.
III. The Abstract of Judgment Must be Modified to Accurately Describe Counts One
and Two
In count one and count two, the jury convicted defendant of violating Penal Code
section 4500. The information described defendant’s Penal Code section 4500 violations
as assaults by a life prisoner “by means of force likely to produce great bodily injury.”
14
The abstract of judgment, however, describes both of defendant’s Penal Code section
4500 convictions as “Assault w/ Deadly Weapon by Life Prisoner.”
Defendant contends that the abstract of judgment must be modified to accurately
describe his convictions in counts one and two. The Attorney General concedes that the
abstract of judgment should be modified, noting that the record shows that defendant did
not use a deadly weapon.
A court “may correct clerical errors at any time.” (People v. Mitchell (2001) 26
Cal.4th 181, 185.) We therefore order the abstract of judgment to be modified to describe
each Penal Code section 4500 conviction as assault by a life prisoner by means of force
likely to produce great bodily injury.
DISPOSITION
The abstract of judgment is ordered modified to describe each Penal Code section
4500 conviction (count one and count two) as assault by a life prisoner by means of force
likely to produce great bodily injury. As so modified, the judgment is affirmed.
15
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
16