People v. Yescas CA2/6

Filed 4/21/16 P. v. Yescas CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B262378
(Super. Ct. No. 1426760)
Plaintiff and Respondent, (Santa Barbara County)

v.

RAUL ANTONIO YESCAS, III,

Defendant and Appellant.

Raul Antonio Yescas, III, appeals from the judgment entered after a jury
convicted him of two counts of forcible rape. (Pen. Code, § 261, subd. (a)(2).)1 The jury
found true a multiple-victim allegation. (§ 667.61, subds. (b), (c)(1), (e)(4).) The court
imposed an aggregate sentence of 30 years to life, consisting of two consecutive 15-year-
to-life terms. It ordered appellant to pay a fine of $1,350 pursuant to section 290.3.
Appellant contends that the trial court erred in (1) admitting evidence of
uncharged sexual offenses, (2) instructing the jury, and (3) denying his motion for a new
trial. The motion was based on newly discovered evidence and an alleged Brady
violation. (Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215].)
Finally, appellant contends that the trial court erroneously imposed a fine of $1,350
pursuant to section 290.3.

1
Unless otherwise indicated, all statutory references are to the Penal Code.
 Only the final contention has merit. We remand the matter with directions
to impose an $800 fine pursuant to section 290.3 plus any required assessments,
penalties, or surcharges. We also require the trial court to amend the abstract of
judgment. In all other respects, we affirm.
Facts
Rape of Jessica R.
In April 2011 Jessica R. was 19 years old. She lived in Los Angeles and
was visiting Santa Barbara. At the end of her visit, she intended to take the train back to
Los Angeles. She got on a bus that was headed in the direction of the Santa Barbara
Amtrak train station.
Appellant was a passenger on the same bus. Before the bus ride, appellant
and Jessica R. were total strangers. They conversed with each other during the ride. To
Jessica R., appellant "seemed like a sweet, nice guy." She got off the bus to transfer to
another bus, but appellant said that the Amtrak station was only a short walk away. He
offered to walk there with her and carry her suitcase. Jessica R. accepted the offer.
On the way to the station, Jessica R. said she had to urinate. Appellant led
her to a women's restroom. She went inside while appellant waited outside with her
suitcase and purse. The restroom was empty. Jessica R. entered a stall, pulled down her
pants, and sat down on the toilet. She heard someone enter the restroom. It was
appellant. He "came in [to the stall] with his pants already down to his ankles with [an
erection] ready to go." Jessica R. said, "What the fuck are you doing?" Appellant did not
respond. He grabbed her from behind and pushed her towards a corner. He said, "Come
on, you know you want to do it," and he tried to kiss the side of Jessica R.'s neck.
Appellant put his penis into her vagina, "thrusted really quickly a couple times and then
ran away." Semen found in Jessica R.'s vagina matched appellant's DNA.
Rape of Elizabeth S.
Elizabeth S. was a high school senior when she met appellant at a
Halloween party in 2010. He had already graduated from the same high school.
Elizabeth S. and appellant had a friendly relationship from the time they met until

2
December 21, 2010. On that date, Elizabeth S. drove to a shopping mall and parked her
car on the top level of a parking structure. She unexpectedly met appellant inside the
mall. He "was very friendly." She agreed to drive him to his friend's house. When they
arrived at Elizabeth S.'s parked car, there were no other cars nearby. Appellant said, "I
want to have sex with you." Elizabeth S. replied, "No, I do not want to."
Appellant pushed Elizabeth S. onto the backseat of the car. He got on top
of her, pulled her pants down, and put his penis inside her vagina. Elizabeth S. "just laid
there and didn't do anything." She "knew there was nothing [she] could do to get him off
[her]. His entire weight was on [her]." After he had finished, appellant got out of the car
and pulled up his pants. Elizabeth S. then drove him to his friend's house.
Elizabeth S. initially told no one about the rape because she "just knew that
nobody would ever believe [her]." She eventually told her boyfriend. A few weeks after
the rape, her mother found out about it and called the police. In January 2011 Elizabeth
S. told the police about the rape but declined to prosecute appellant.
In January 2013 the police contacted Elizabeth S. and said that appellant
had raped another woman. Elizabeth S., who had just turned 19, told the police that she
was ready to go forward with the prosecution of appellant.
Appellant's Statements to the Police
A detective interviewed appellant in November 2012. When the detective
showed him a photograph of Jessica R., he did not recognize her. After further
questioning, appellant said that he had offered to walk to the Amtrak station with the
person depicted in the photograph. Before reaching the station, his girlfriend telephoned
and told him to come home immediately. Appellant gave Jessica R. directions to the
station, "hugged her goodbye," and left. He had no sexual contact with her.
The detective informed appellant that semen had been found inside Jessica
R.'s vagina, and the semen's DNA matched his DNA. Appellant replied: "I asked if she
wanted to hook up. She's like, 'Sure.' We went up to the bathroom above the thing and
we had sex. I didn't force her to do anything. I didn't rape anybody." After having sex,

3
they hugged and went their "separate ways." They exchanged phone numbers but never
contacted each other.
The detective interviewed appellant again in January 2013. This time the
detective questioned him about his relationship with Elizabeth S. Appellant said that in
November and December 2010 he had consensual sex with her once or twice a week,
including the incident in her parked car on December 21, 2010. At the same time that he
was having sex with Elizabeth S., he had a girlfriend named Lacey. Elizabeth S. tried but
failed to persuade appellant to break up with Lacey and have an exclusive relationship
with her. She then started telling people that appellant had had nonconsensual sex with
her. When the detective asked him why Elizabeth S. had lied, appellant replied: "Just to
get back at me. A woman scorned - there's no wrath like a woman scorned."
Vincent G.'s Testimony Concerning Appellant's
Uncharged Sexual Offenses
Vincent G. testified as follows: In January 2013 he was in jail. He and
appellant were housed in the same room, which contained 18 bunk beds. Vincent G.
made a written complaint to jail authorities about appellant's conduct. The complaint
stated, "[Appellant] has been making unwanted sexual advances." The complaint was
triggered by two incidents. The first occurred while Vincent G. was sitting on his bunk
bed. Appellant put his hand on Vincent G.'s "lap and tried to touch [him] around [his]
penis area." Vincent G. "pushed [appellant] off and said, 'I don't do that.'" The second
incident occurred while Vincent G. was standing. Appellant grabbed Vincent G.'s penis
from behind. Vincent G. "pushed him off" and said 'Come on, man.'" Vincent G. told
jail authorities that he wanted appellant to be prosecuted for the sexual acts.
Admission of Evidence of Appellant's Uncharged Sexual Offenses
Appellant contends that the trial court erroneously admitted Vincent G.'s
testimony about appellant's uncharged sexual offenses. The testimony was admitted
pursuant to Evidence Code section 1108 (hereafter section 1108), subdivision (a), which
provides, "In a criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant's commission of another sexual offense or offenses is not made

4
inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section
352." Evidence Code section 352 provides, "The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury." Section 1108
"permits evidence that the defendant committed other sexual offenses to prove his
propensity to commit the charged sexual offenses. [Citations.]" (People v. Cottone
(2013) 57 Cal.4th 269, 281.)
The admission of other sexual offenses pursuant to section 1108 is
reviewed for abuse of discretion. (People v. Ennis (2010) 190 Cal.App.4th 721, 733.)
"[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary
that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th
367, 377.)
Appellant committed misdemeanor sexual batteries upon Vincent G.
(§ 243.4, subd. (e)(1).) Appellant maintains that the trial court abused its discretion in
admitting evidence of these offenses because of "the many differences between" them
and the offenses committed against Jessica R. and Elizabeth S. "The main difference,"
appellant asserts, was that "the uncharged act involved homosexual conduct, and was
limited to transient touching." Such conduct "does not support a rational inference that
appellant had a predisposition or propensity to rape young women."
The trial court did not abuse its discretion. The uncharged sexual batteries
were admissible to show that appellant had a propensity to commit nonconsensual sexual
acts with persons irrespective of their sex. Based on Vincent G.'s negative reaction to the
first sexual battery, appellant knew that he would object to the second sexual battery
committed by grabbing his penis.
The probative value of the evidence of the sexual batteries was not
"substantially outweighed by the probability that its admission [would] . . . create
substantial danger of undue prejudice." (Evid. Code, § 352.) The evidence was highly

5
probative. It rebutted appellant's defense that Jessica R. and Elizabeth S. had consented
to have sexual relations with him. "The testimony describing [appellant's] uncharged
acts . . . was no stronger and no more inflammatory than the testimony concerning the
charged offenses. This circumstance decreased the potential for prejudice, because it was
unlikely that the jury disbelieved [the victims'] testimony regarding the charged offenses
but nevertheless convicted [appellant] on the strength of [Vincent G.'s] testimony . . .
regarding the uncharged offenses, or that the jury's passions were inflamed by the
evidence of [appellant's] uncharged offenses." (People v. Ewoldt (1994) 7 Cal.4th 380,
405.)
Instruction Permitting Jury to Consider Either Charged Rape as
Evidence of Appellant's Propensity to Commit the Other Charged Rape
I
The trial court gave a modified version of CALCRIM No. 1191 permitting
the jury to consider either charged rape as evidence of appellant's propensity to commit
the other charged rape. Appellant argues that "this was error because Evidence Code
section 1108 permits juror consideration of only uncharged acts as evidence of a
propensity to commit the charged offenses." Appellant maintains that the erroneous jury
instruction denied him due process of law under the United States Constitution.
In People v. Villatoro (2012) 54 Cal.4th 1152, 1164-1165 (Villatoro), the
California Supreme Court held that section 1108 permits the admission of evidence of
charged offenses to show the defendant's propensity to commit other charged offenses.
The court reasoned, "Whether an offense is charged or uncharged in the current
prosecution does not affect in any way its relevance as propensity evidence." (Id., at
p. 1164.) Appellant "acknowledges this court is thus bound to follow Villatoro." "To
preserve the issue for further review," appellant "maintains that the California Supreme
Court's decision did not comport with federal constitutional due process requirements."
II
Even if Villatoro comports with due process requirements, appellant argues
that the instruction in the instant case erroneously informed the jury that, if the People

6
prove a charged offense by a preponderance of the evidence, it can be considered as
evidence of appellant's propensity to commit another charged offense. Appellant
contends that the jury should have been instructed that a charged offense must be proved
beyond a reasonable doubt before it can be considered as propensity evidence.
We disagree. In People v. Cottone, supra, 57 Cal.4th 269, 287-288, the
California Supreme Court concluded that, to be admissible under section 1108, an
uncharged sexual offense must be proved by a preponderance of the evidence. There is
no reason why section 1108 should be construed as requiring a higher standard of proof
for the admission of a charged sexual offense.
Villatoro does not support appellant's position. There, the jury instruction
required the People to prove a charged sexual offense beyond a reasonable doubt before it
could be considered as propensity evidence under section 1108. The Supreme Court did
not determine the correct standard of proof. (Villatoro, supra, 54 Cal.4th at pp. 1167-
1168.) It merely observed that, since "the instruction clearly told the jury that all offenses
must be proven beyond a reasonable doubt, even those used to draw an inference of
propensity," the instruction "did not impermissibly lower the standard of proof or
otherwise interfere with defendant's presumption of innocence." (Id., at p. 1168.) The
Supreme Court did "not decide . . . whether courts should give such an instruction in the
future." (Id., at p. 1169.)
Appellant contends: "Allowing the jury to apply the preponderance of the
evidence standard for the propensity determination as to the charged crimes risked the
jury concluding that the presumption of innocence as to the charged crimes no longer
existed once the jury concluded one or both of the charged crimes had been proved by the
lower standard of proof. A fair reading of the modified CALCRIM No. 1191 instruction
would lead a juror to conclude that, once appellant was found to have committed any
charged offense under the lesser standard of proof, then the presumption of innocence as
to the other charged crimes no longer applied and he was likely guilty so that even a
minimal quantum of proof was sufficient to convict him."

7
 Appellant's concern is unwarranted. As modified, CALCRIM No. 1191
provided, "The People must still prove every element of each charged crime and
allegation beyond a reasonable doubt." (Underlining omitted.) Furthermore, the trial
court gave CALCRIM No. 220 explaining the presumption of innocence and the
requirement that the People prove the defendant guilty beyond a reasonable doubt.
Motion for New Trial and Alleged Brady Violation
Shortly after appellant was convicted, the prosecutor became aware of
documents not disclosed to the defense that might have been discoverable for the purpose
of impeaching Vincent G. The prosecutor provided these documents to defense counsel.
Appellant moved for a new trial "on the grounds of newly discovered evidence not
disclosed by the prosecution in discovery - Brady violation." (Italics added.)
"'[T]he term "Brady violation" is sometimes used to refer to any breach of
the broad obligation to disclose exculpatory evidence . . . although, strictly speaking,
there is never a real "Brady violation" unless the nondisclosure was so serious that there
is a reasonable probability that the suppressed evidence would have produced a different
verdict. There are three components of a true Brady violation: The evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.' [Citation.] . . . A defendant . . . 'must
show a "reasonable probability of a different result."' [Citation.]" (People v. Salazar
(2005) 35 Cal.4th 1031, 1042-1043; see also Strickler v. Greene (1999) 527 U.S. 263,
289 [119 S. Ct. 1936, 144 L. Ed. 2d 286] [the defendant "must convince us that 'there is a
reasonable probability' that the result of the trial would have been different if the
suppressed documents had been disclosed to the defense"].) "'A "reasonable probability"
is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (People
v. Hoyos (2007) 41 Cal.4th 872, 918, overruled on another ground in People v. McKinnon
(2011) 52 Cal.4th 610, 637-643.) "We independently review the question whether a
Brady violation has occurred, but give great weight to any trial court findings of fact that

8
are supported by substantial evidence. [Citation.]" (People v. Letner (2010) 50 Cal.4th
99, 176.)
Although the motion for a new trial alleged a Brady violation, it stated that
it was being made pursuant to section 1181, subdivision 8, which applies "[w]hen a
motion for a new trial is made upon the ground of newly discovered evidence." (Ibid.)
"'To entitle a party to a new trial on the ground of newly discovered evidence, it must
appear . . . "[t]hat [the newly discovered evidence] be such as to render a different result
probable on a retrial of the cause."'" (People v. Martinez (1984) 36 Cal.3d 816, 821.)
"'"The determination of a motion for a new trial rests so completely within the court's
discretion that its action will not be disturbed unless a manifest and unmistakable abuse
of discretion clearly appears."' [Citations.]" (People v. Turner (1994) 8 Cal.4th 137, 212,
disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
Appellant claims that the trial court erred in denying his motion for a new
trial: "The newly discovered evidence would have undermined, if not completely
torpedoed [Vincent G.'s] credibility to the point where the jury would likely have been
unable to reach a guilty verdict as to Elizabeth [S.]" "Appellant's trial counsel was
deprived of the right to effectively cross-examine [Vincent G.] thereby impeaching his
veracity and credibility. . . . He was prevented from eliciting evidence showing that
[Vincent G.] had a pattern of lying to obtain favors of leniency from the Santa Maria
Police Department."
In his motion for a new trial, appellant specified what he considered to be
the newly discovered material evidence that would have impeached Vincent G. It
included documents showing that (1) in 2011 Vincent G. had provided information to the
Santa Maria Police Department in exchange for not booking him into jail, and (2)
Vincent G. had lied about his involvement in a carjacking and a shooting. The newly
discovered material evidence also included a letter that appellant had sent to Detective
Parker of the Santa Maria Police Department after he had testified at the trial in the
instant case. Vincent G. wrote, "Help me out and work with me. I promise and give you
my word you won't regret it. Also I already testified on Raul Yescas [appellant] from

9
Santa Barbara. I bet you already heard about it. For being my first time I think I did
pretty good. You can call the D.A. from SB and he'll tell you how I did. Give me a
chance. . . . I'm willing to be your best guy and be on your team while me being locked
up and even out there. When I get out I will work with you as well. I won't let you
down."
Finally, the newly discovered material evidence included an email from a
juror to the prosecutor in the instant case. The juror stated: "On behalf of the jury,
assuming it's appropriate for you to contact him, will you please convey a message to
[Vincent G.] from us? All of us found him to be a credible and sympathetic witness, and
we unanimously voted to 'convict', or whatever the appropriate word may be, [appellant]
on the uncharged offenses related to his assaults [upon Vincent G.]. Furthermore, that
had a profound effect on the rest of our deliberations and the ultimate result."
The above evidence did not warrant the granting of a new trial on the
ground of a Brady violation or newly discovered evidence. The email from the juror was
inadmissible. "[T]he mental processes of the jurors are beyond the hindsight probing of
the trial court." (Maple v. Cincinnati, Inc. (1985) 163 Cal.App.3d 387, 394.) The letter
to Detective Parker was not material to the Brady issue because it was written after
appellant had testified at the trial. Nor was it newly discovered material evidence under
section 1181, subdivision 8. Nothing in the letter indicates that appellant's testimony was
untruthful.
As to the other newly discovered evidence, it is not reasonably probable
that the result would have been different if the evidence had been provided to the defense
before the trial began. Nor is the evidence "'"such as to render a different result probable
on a retrial of the cause . . . ."'" (People v. Martinez, supra, 36 Cal.3d at p. 821.) It is of
no consequence that in 2011 Vincent G. provided information to the Santa Maria Police
Department in exchange for not booking him into jail. Appellant has not shown that the
information was false.
On the other hand, Vincent G. could have been impeached with evidence
that he had lied about his involvement in a carjacking and a shooting. (See People v.

10
Ayala (2000) 23 Cal.4th 225, 271 [defendant could impeach prosecution witness "with
evidence that he had once lied to a probation officer about owning a gun"].) But the jury
was aware of Vincent G.'s disreputable character. When he testified, he was in handcuffs
and was wearing a "County Jail jumpsuit." He said that he was serving 15 years for
attempted murder based on an assault with a semiautomatic firearm. He also said that he
had been a member of the West Park criminal street gang. The jury was instructed that,
in assessing a witness's credibility, it may consider whether the witness has been
convicted of a felony. Thus, Vincent G. was not "clothed . . . in a '"'false aura of
veracity.'"' [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 932.)
Moreover, Elizabeth S.'s testimony did not need to be corroborated by the
evidence of appellant's sexual batteries upon Vincent G. Her testimony was amply
corroborated by the evidence of appellant's rape of Jessica R. We are confident that, if
Vincent G. had not testified, appellant would still have been convicted of both rapes. We
agree with the trial judge's analysis: "I think that the jury convicted [appellant] because
they listened to the testimony of two victims who told very similar stories about how
[appellant] befriended them, how he gained their trust or confidence and how he abused
it. [¶] I think that [appellant] was his own worst enemy in this case. Every time a police
officer questioned him, he lied."
Appellant claims that the trial court "failed to conduct a thorough Brady
analysis." (Bold and capitalization omitted.) Appellant continues, "Had the trial court
conducted a complete Brady analysis it is likely it would have concluded appellant's
motion met all the criteria and granted a new trial." The standard of review for an alleged
Brady violation is independent or de novo review, and we have complied with that
standard. (People v. Letner, supra, 50 Cal.4th at p. 176.) It therefore does not matter
whether the trial court conducted a thorough Brady analysis. We have done so and have
concluded that there was no Brady violation. (See Stone Street Capital, LLC v.
California State Lottery Commission (2008) 165 Cal.App.4th 109, 116 ["Because we
review the trial court's decision de novo, we do not defer to the trial court's ruling or
reasons for its ruling. Instead, we decide the matter anew."].)

11
 Section 290.3 Fine
Section 290.3, subdivision (a) provides that a fine of $300 shall be imposed
for a first conviction of forcible rape and a fine of $500 for each subsequent conviction,
"unless the court determines that the defendant does not have the ability to pay." At the
sentencing hearing, the trial court ordered appellant "to pay a fine of $1,350 pursuant to
Penal Code Section 290.3." The court did not explain how it had arrived at this amount.
The court minutes and abstract of judgment state, "Defendant ordered to pay $1350 per
PC 290.3." The probation report states that the $1,350 figure includes penalty
assessments, but does not specify which assessments were included or the amount of each
assessment. "[T]here are seven assessments, surcharges, and penalties parasitic to an
underlying fine that could increase the fine by 280 percent." (People v. Voit (2011) 200
Cal.App.4th 1353, 1374.)
For the first time on appeal, appellant contends that before imposing a
section 290.3 fine, the trial court should have determined whether he had the ability to
pay the fine. In People v. McMahan (1992) 3 Cal.App.4th 740, the defendant made the
same contention under similar circumstances. The McMahon court concluded that the
defendant had waived the contention. It explained: "[T]he most knowledgeable person
regarding the defendant's ability to pay would be the defendant himself. It should be
incumbent upon the defendant to affirmatively argue against application of the fine and
demonstrate why it should not be imposed. [¶] Here, the defendant was informed
through the probation report that the probation officer was recommending the imposition
of a fine pursuant to section 290.3. No objection to the fine was raised below, nor did
defendant make any attempt to show he did not have the ability to pay the fine." (Id., at
pp. 749-750.) Like the defendant in McMahon, appellant's "failure to object or present
contrary evidence waived the right to complain on appeal. [Citation.]" (Id., at p. 750.)
In his reply brief appellant argues that, because his trial counsel did not
object, he was denied his constitutional right to the effective assistance of counsel. "It is
rarely appropriate to resolve an ineffective assistance claim on direct appeal [citation]; we

12
certainly will not do so where, as here, the claim is omitted from the opening brief and
thus waived [citations]." (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
Appellant asserts, "[I]f it had been determined that he had the ability to
pay[,] the appropriate fine would have been $300 for the first offense and $500 for the
second [offense] for a total base fine of $800." Appellant contends that the matter should
be remanded to the trial court with directions to "set forth on the record with specificity
the amounts of any penalties and assessments and amend the abstract of judgment to
specify" these amounts. We agree. "Although we recognize that a detailed recitation of
all the fees, fines and penalties on the record may be tedious, California law does not
authorize shortcuts. All fines and fees must be set forth in the abstract of judgment.
[Citations.]" (People v. High (2004) 119 Cal.App.4th 1192, 1200; see also People v.
Voit, supra, 200 Cal.App.4th at p. 1373 ["the trial court clerk [must] specify the penalties
and surcharge in appropriate amounts in the minutes and, more importantly, the abstract
of judgment"].)
The Abstract of Judgment Must Be Amended to
Clarify that Appellant Was Sentenced to Consecutive Terms
The abstract of judgment shows that, pursuant to section 667.6, subdivision
(d), appellant was sentenced to 15 years to life on each of the two counts of forcible rape.
Section 667.6, subdivision (d) provides, "A full, separate, and consecutive term shall be
imposed for each violation of an offense specified in subdivision (e) if the crimes involve
separate victims or involve the same victim on separate occasions." But part 1 of the
abstract of judgment does not show that the 15-year-to-life terms run consecutively to
each other. As to count 2, part 1 should be amended to insert an "X" in the box under
"consecutive."
Disposition
The matter is remanded to the trial court with directions to impose an $800
fine pursuant to section 290.3 plus any required assessments, penalties, or surcharges.
The trial court shall prepare an amended abstract of judgment showing the amount of the
fine as well as the amount and statutory basis of each assessment, penalty, or surcharge.

13
As discussed in the immediately preceding part of this opinion, the amended abstract
shall also show that the 15-year-to-life-sentence on count 2 shall be served consecutively
to the 15-year-to-life sentence on count 1. The trial court shall send a certified copy of
the amended abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J.
We concur:

GILBERT, P. J.

PERREN, J.

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 James K. Voysey, Judge

Superior Court County of Santa Barbara

______________________________

Richard D. Miggins, under appointment by the Court of Appeal, for
Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Jonathan J.
Kline, Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.