Filed 10/28/21 P. v. Sprague CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080719
Plaintiff and Respondent,
(Tulare Super. Ct. No. PCF353589)
v.
HARRY GLENN SPRAGUE, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Michael B.
Sheltzer, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.
INTRODUCTION
Appellant and defendant Harry Glenn Sprague got into a brief argument with the
manager of his mobile home park about whether he had to wear a wristband to use the
swimming pool and shot both the manager and her husband. He was charged with two
counts of attempted murder with firearm enhancements. He pleaded no contest to the
charges and admitted the enhancements and pleaded not guilty by reason of insanity. At
the jury trial on sanity, one expert testified he was insane at the time he committed the
offenses; two experts testified defendant was malingering, he was not insane, and he
appreciated the nature and quality of his actions and knew right from wrong when he
committed the offenses. The jury found defendant sane. He was sentenced to 14 years to
life for the attempted murders plus 50 years to life for the firearm enhancements.
On appeal, defendant contends the trial court improperly imposed a criminal
protective order prohibiting contact with the victims because the order was not authorized
by any statute. Defendant also contends his defense attorney was prejudicially
ineffective for failing to request an ability to pay hearing under People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas) when the court imposed the restitution fine, fees, and
assessments.
We will strike the criminal protective order, order the abstract of judgment
corrected, and otherwise affirm.
FACTS1
At the time of the offenses, defendant was 75 years old (born 1942) and lived in a
trailer at the Golden Hills Mobile Home Estates trailer park in Porterville. He previously
worked as an electrical station operator for the Department of Water and Power.
1 The facts are from the evidence introduced at the jury trial on whether defendant
was sane at the time he committed the offenses. Defendant had the burden of proof at the
sanity trial by a preponderance of the evidence. (People v. Elmore (2014) 59 Cal.4th
121, 141; Pen. Code, §§ 1026, subd. (a), § 25, subd. (b).)
2.
Defendant testified he consulted with a psychologist in 1994 and was diagnosed as being
bipolar. He took prescribed medication for a couple of weeks and stopped because it
bothered him. He had never been arrested or hospitalized for mental health related
issues, but claimed he was fired because of his mental health problems.
Defendant testified that when he started living at the mobile home park, he had
problems with residents who reported him for violating strict rules, and believed they
were spying and following him around. Defendant resented the enforcement of
“draconian” rules and was annoyed by certain residents. Defendant testified he filed
about 40 complaints with the police to complain about several residents, including one
person who allegedly made threatening comments, but nothing was ever done.
Defendant feared that person might shoot him. Defendant kept four firearms in his trailer
for self-defense.
The argument
On July 17, 2017, defendant decided to use the mobile home park’s community
swimming pool. He put a handgun in his backpack and rode his bicycle to the pool.
Melissa Williams was the mobile home park’s manager, and lived on the property
with her husband, Keith. Mrs. Williams testified there had been problems with non-
residents using the swimming pool and other facilities and, as a result, she decided to
require all residents wear wristbands to distinguish them from trespassers. The rule was
not popular with the residents. Mrs. Williams had a contentious relationship with
defendant, who disagreed with the wristband rule.
Mrs. Williams arrived at the pool and noticed defendant was not wearing a
wristband. She asked defendant to get out of the pool and offered to give him a
wristband. Defendant refused and said, “ ‘You know what you can do with that, right?’ ”
Mrs. Williams asked what he meant, and defendant said she was making it “ ‘so much
worse.’ ”
3.
Keith Williams saw the exchange and asked defendant not to speak like that to his
wife. Defendant was still in the pool and replied, “ ‘You’re making it worse.’ ”
James Burger, another resident, was in the pool and wearing a wristband. He
testified that defendant argued with Mr. and Mrs. Williams about the wristband, and
Mr. Williams called defendant a sex offender.
Defendant shoots the victims
Defendant got out of the pool, went to his bicycle, and pulled the gun out of his
backpack. Mr. and Mrs. Williams saw him get the gun and tried to run away.
Mr. Burger testified defendant shot Mr. Williams, and then turned around and shot
Mrs. Williams.
Defendant shot Mr. Williams in the back of his right shoulder. Defendant shot
Mrs. Williams in the face, and the bullet went through her nose, from right to left.2
Mr. Burger testified that defendant looked at him after he shot the victims, but he
did not point the gun at him and seemed “strangely calm.” Defendant did not appear
confused or asleep, and he was not talking to himself. Defendant used a racial slur, and
said he was going to shoot the man and “fix him,” referring to Mr. Williams.
After she was shot, Mrs. Williams ran across the street and defendant followed
her. Mr. Williams told her to go into their home and call the police. Mrs. Williams went
inside their residence and defendant followed her into the yard. Mr. Williams walked in
another direction to lure defendant way. Mr. Williams became lightheaded, collapsed,
and yelled for help.
2 At the sentencing hearing, Mrs. Williams made a victim impact statement and
said the bullet fractured her nose and severely impacted her breathing, a bullet fragment
entered her eye, and other fragments were in her face. She still had pain and pressure in
her face. Mr. Williams stated the bullet could not be removed from his body, and the
wound resulted in partial use of his shoulder.
4.
Mr. and Mrs. Williams testified that aside from shooting them, defendant did not
engage in any other bizarre behavior, appear unconscious, talk to himself, appear to be
sleep walking, or act like he was hearing voices during their encounter with him.
Other witnesses
Judy Miranda was inside a trailer, heard loud bangs, and went outside. She saw
Mrs. Williams running from the clubhouse area. Defendant followed her and carried a
handgun, and he walked in a calm and cool manner. Ms. Miranda called 911.
Daniel Chavarria was outside his trailer and heard the gunshots and screaming.
He called 911 and then saw a man riding a bicycle, later identified as defendant. He
asked defendant if he heard the gunshots. Defendant made racial slurs and derogatory
remarks about shooting a man and woman.
Defendant’s postarrest statements
Officer Jordan and numerous officers responded to the trailer park on a dispatch
about an active shooter, and the residents identified defendant as the suspect. Jordan saw
defendant as he was riding the bicycle inside the trailer park. Jordan ordered him to stop,
and defendant complied. Defendant was arrested and a revolver was found in his
backpack. Defendant was alert and oriented, responded to the officers’ commands, and
he did not appear delusional or asleep.
Defendant was interviewed by Officer Sokoloff. Defendant said Mrs. Williams
was “nuts” and confrontational, and he had to defend himself because they attacked him.
Defendant claimed there was a “gang” of older people who tried to control the mobile
home park and exclude certain people from using the clubhouse and swimming pool.
Defendant said the group dictated unfair rules so they were the only residents who could
use the facilities. Mrs. Williams did what they wanted and only let certain people get a
wristband to use the pool.
Defendant said Mrs. Williams told him to get out of the pool, and Mr. Williams
threatened to run him out of there. Defendant got out of the pool, but Mr. Williams
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followed him and called him a child molester. Defendant asked the interviewing officer,
“[H]ow much abuse can somebody take?” Defendant said he had been “abused” by other
residents and managers for 13 years.
Defendant claimed Mr. Williams was “coming at me,” and was going to beat him
up, and defendant had to defend himself. Defendant got his handgun from his backpack
and “displayed it,” but Mr. Williams kept coming at him. Defendant said he fired three
shots and claimed not to remember why or how he shot at the victims but said Mrs.
Williams got involved because she was nuts and crazy. Defendant said he did not know
why he shot them, and he did not follow them. He denied speaking to witnesses after the
shooting and making racial slurs about the victims.
Defendant said he took the gun to the pool to defend himself in case he was
attacked by Mr. Williams or someone else. Defendant told the officer that he had filed
numerous complaints about people at the trailer park, but the police never did anything.
Defendant’s testimony
At the sanity trial, defendant testified he did not like Mr. and Mrs. Williams.
When Mrs. Williams asked him to wear the wristband, he “told her you know what you
could do with it.” Defendant claimed he wanted to “move the situation along,” but they
“wanted to fight.” He got out of the pool, and Mr. Williams followed him and said he
was a child molester, referring to a false claim made against him in 2008.
Defendant was afraid Mr. Williams was going to assault him since he insulted
Mrs. Williams. Defendant testified he heard voices that said to “teach them a lesson.”
He previously heard voices when he was under stress. Defendant admitted he took the
gun out of his backpack and shot Mr. and Mrs. Williams. Defendant testified he was not
aware he did anything wrong because he believed he was being attacked, and he did not
have “the capacity” to know right from wrong. By the time of trial, however, he realized
he did something wrong.
6.
Defendant testified that after he fired the shots, he followed Mr. Williams, heard
Mrs. Williams scream for help, and realized he did something wrong. He felt he was in a
bad dream. Defendant put the gun into his backpack, got on his bicycle, and headed back
to his trailer because he knew he was going to be arrested. He admitted that he spoke to
Mr. Chavarria and made derogatory remarks and racial slurs about shooting the victims.
Defendant testified that when he was placed on medication in jail, it “leveled
everything out” but claimed he struggled to communicate with the mental health experts
who examined him, except for Dr. Velosa.
Defense expert
Dr. Luis Velosa, a licensed psychiatrist, testified he examined defendant on
October 3, 2018. Dr. Velosa was unable to locate any mental health records for
defendant. Defendant told Dr. Velosa that he suffered psychiatric problems since he was
in his 20s but stopped taking medication because of the side effects and never received
any treatment as of the 1990s. Defendant also reported that at the time of the offense, he
suffered from “mood swings” and “anger fits” triggered by insomnia. Defendant said he
kept guns to protect himself from people who planned to burn down his mobile home.
Defendant described a long period of perceived harassment by the management
and said he just could not take it anymore, got his gun, and shot at them. Defendant
never claimed self-defense and instead said he felt in a “dreamlike state.” After he was
arrested, defendant was examined in jail and prescribed “very serious psychiatric
medication for his mental problem.”
Dr. Velosa testified defendant was credible and not malingering. Dr. Velosa
believed defendant suffered from bipolar disorder with psychotic symptoms at the time of
the offenses. A person with bipolar disorder who was not medicated would not be able to
discern right from wrong. Dr. Velosa testified defendant’s untreated bipolar disorder
prevented him from understanding the nature or morality of his acts when he committed
the crimes.
7.
Prosecution experts
Dr. Dorian Hughes, a licensed psychologist, examined defendant on
September 13, 2018. Defendant reported symptoms that were inconsistent with his
claimed mental state and symptoms, and exaggerated the reasons for his actions, such as
saying he almost committed a mass murder. Defendant’s claimed lack of sleep was
inconsistent with auditory hallucinations. Defendant showed reasonable awareness of
what he did because he described his frustration with the rules, his argument with Mr.
and Mrs. Williams, and his reaction of grabbing his gun and shooting them. His actions
were not premised on delusions, he did not describe a manic episode, and he gave
inconsistent excuses that he was hearing voices and also defending himself.
Dr. Hughes testified defendant had a high score on a malingering test that
indicated he was feigning symptoms. She believed defendant had an unspecific mood
disorder and not a mental illness, and defendant was sane, appreciated the nature and
quality of his actions, and knew right from wrong at the time he committed the offenses.
Dr. Tricia Busby, a licensed psychologist, examined defendant on March 22, 2019,
and testified he reported auditory hallucinations and depression. She believed he suffered
from schizoaffective disorder and was bipolar, but testified defendant was sane at the
time of the offenses. Defendant described having coherent conversations with the
victims, deliberate actions leading to the offense, and a rational explanation that he
believed he was being attacked. Defendant described hearing a voice as an internal
thought, whereas a psychotic person would hear an external voice. Dr. Busby testified
that defendant scored high on the malingering test and “overacted” his symptoms.
PROCEDURAL BACKGROUND
On December 8, 2017, an information was filed in the Superior Court of Tulare
County charging defendant with counts 1 and 2, attempted murder of K.W. and M.W.
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(Pen. Code, §§ 664, 187, subd. (a)),3 with enhancements for both counts that he
personally and intentionally discharged a firearm causing great bodily injury or death
(§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (id., subd. (c)),
and personally used a firearm (id., subd. (b)).
On December 11, 2017, defendant pleaded not guilty, and the criminal protective
order remained in effect.
Competency finding
On February 1, 2018, defense counsel advised the court that there was a doubt as
to defendant’s competency. The court suspended criminal proceedings and appointed
Dr. Middleton to examine defendant. Dr. Middleton reported defendant said he had been
previously diagnosed with schizophrenia, but found he was competent to stand trial.
On May 14, 2018, defendant requested a bench trial on his competence to stand
trial. On July 12, 2018, the court held the trial, found defendant competent, and
reinstated criminal proceedings.
Guilty and insanity pleas
On August 17, 2018, defendant pleaded not guilty, and not guilty by reason of
insanity. The court appointed Drs. Velosa and Hughes to examine defendant. On
December 7, 2018, the court granted defendant’s motion for another expert and appointed
Dr. Busby.
On October 18, 2019, defendant pleaded no contest to the two counts of attempted
murder and the firearm enhancements, and again pleaded not guilty by reason of insanity.
Sanity verdict and sentencing
On November 4, 2019, defendant’s jury trial on sanity began.
On November 8, 2019, the jury found defendant sane.
3 All further statutory citations are to the Penal Code unless otherwise indicated.
9.
On December 10, 2019, the court conducted the sentencing hearing and imposed
an aggregate term of 64 years to life for counts 1 and 2, based on two consecutive terms
of seven years to life for the attempted murder convictions plus 25 years to life for the
firearm enhancements.4
The court ordered defendant to pay a restitution fine of $10,000 (§ 1202.4,
subd. (b)) and suspended the parole revocation fine of $10,000 (§ 1202.45).
The court ordered defendant to pay victim restitution of $6,500 to Mr. Williams
and $54,262 to Mrs. Williams (§ 1202.4, subd. (f)); and $24,884.64 to the victim
compensation board (id., subd. (f)(2)). Defense counsel stipulated to the victim
restitution amounts.
The court also imposed court operations assessments of $80 (§ 1465.8) and
criminal conviction assessments of $60 (Gov. Code, § 70373).
The court found defendant did not have the ability to repay the costs of
representation since he was being sentenced to state prison (§ 987.8).
The prosecutor requested the court reissue the criminal protective orders that had
been imposed when defendant was arraigned in this case. The court stated the orders
would be issued under the previous terms and served defendant with criminal protective
orders pursuant to section 136.2, subdivision (i)(1), prohibiting contact with
Mr. Williams and Mrs. Williams for three years.
On February 4, 2020, defendant filed a timely notice of appeal.
ISSUES
I. The Protective Orders Must be Stricken
Defendant contends the court lacked authority to impose protective orders at the
sentencing hearing under section 136.2, subdivision (i)(1) or any other statutory
4 The abstract of judgment erroneously states that the court stayed the terms of 25
years to life for the firearm enhancements.
10.
provision. The People agree the court lacked statutory authority to impose any protective
orders in this case.
We first note that while defendant did not object to the protective order at the
sentencing hearing, this issue is cognizable despite his failure to object because a claim
that a criminal protective order imposed as part of a sentence is unauthorized may be
raised for the first time on appeal and is subject to judicial correction whenever the error
comes to the attention of the reviewing court. (People v. Robertson (2012) 208
Cal.App.4th 965, 995 (Robertson); People v. Ponce (2009) 173 Cal.App.4th 378, 381–
382.)
When defendant was arraigned, the court imposed a criminal protective order
pursuant to section 136.2, subdivision (a)(1), which authorizes the court to issue a
protective order to protect a victim or witness in a criminal matter during the pendency of
a criminal action. Once defendant is convicted and sentenced, however, the court’s
authority to issue a protective order under subdivision (a) generally ends. (Robertson,
supra, 208 Cal.App.4th at p. 996; People v. Beckemeyer (2015) 238 Cal.App.4th 461,
465; People v. Stone (2004) 123 Cal.App.4th 153, 158.)
At the sentencing hearing, the court herein relied on section 136.2,
subdivision (i)(1) to impose the protective orders, but this statute only applies when the
defendant has been convicted of a crime involving domestic violence and was
inapplicable to this case. (People v. Beckemeyer, supra, 238 Cal.App.4th at pp. 465–
467.)
As the parties agree, numerous statutes authorize imposition of protective, stay-
away, or no-contact orders when defendants are convicted of certain offenses, or placed
on probation or released on parole, but none of these statutes are applicable to this case.
(See Robertson, supra, 208 Cal.App.4th at p. 996; § 273.5, subd. (j) [domestic violence];
§ 646.9, subd. (k) [stalking]; § 1203.1, subd. (i)(2) [defendant convicted of sexual offense
and placed on probation]; § 1201.3, subd. (a), § 1202.05 [defendant convicted of sexual
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offense on minor victim]; § 1203.097 [defendant convicted of domestic violence and
placed on probation]; §§ 422.55, 422.85, 422.88 [hate crimes]; § 3053.2 [domestic
violence parolee]; § 3053.4 [hate crimes parolee]; §§ 3053.6, 3053.8, 3053.9 [sex
offender parolee]; see also Code Civ. Proc., § 527.6, subd. (d) [temporary restraining
order for harassment].)
The People cite language in Ponce, that the court may have “inherent authority” to
impose protective orders to protect victims not otherwise covered by statute but concede
there is insufficient evidence to support such an order in this case. “Where the
Legislature authorizes a specific variety of available procedures, the courts should use
them and should normally refrain from exercising their inherent powers to invent
alternatives. [Citation.] [¶] Moreover, even where a court has inherent authority over an
area where the Legislature has not acted, this does not authorize its issuing orders against
defendants by fiat or without any valid showing to justify the need for the order.
[Citation.]” (People v. Ponce, supra, 173 Cal.App.4th at p. 384.)
As the People concede, the prosecutor did not make an offer of proof or any
argument to justify the need for the court to reissue the protective order, particularly
given the lengthy prison sentence imposed in this case. (See, e.g., People v. Stone,
supra, 123 Cal.App.4th at pp. 160–161.) “[A] prosecutor’s wish to have such an order,
without more, is not an adequate showing sufficient to justify the trial court’s action.
[Citation.]” (People v. Ponce, supra, 173 Cal.App.4th at pp. 384–385; Robertson, supra,
208 Cal.App.4th at pp. 995–996.)
The criminal protective orders issued pursuant to section 136.2, subdivision (i)(1)
must be stricken.
II. The Restitution Fine and Fees
Defendant next argues that defense counsel was prejudicially ineffective for
failing to raise an ability to pay objection based on Dueñas when the court imposed the
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maximum statutory restitution fine of $10,000, the fees and assessments of $80 and $60,
and the total of $85,646.64 in victim restitution at the sentencing hearing.
“To show ineffective assistance, defendant must show that ‘counsel’s performance
was deficient, and that the defendant was prejudiced, that is, there is a reasonable
probability the outcome would have been different were it not for the deficient
performance.’ [Citations.] ‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ [Citation.]” (People v. Woodruff (2018) 5
Cal.5th 697, 761–762.)
Dueñas held that “due process of law requires the trial court to conduct an ability
to pay hearing and ascertain a defendant’s present ability to pay” before it imposes any
fines or fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)5
We first note that to the extent defendant is challenging the victim restitution
orders, defense counsel stipulated to the amounts imposed. More importantly, Dueñas
specifically stated that it was not addressing victim restitution (Dueñas, supra, 30
Cal.App.5th at p. 1169), and the ruling in that case has not been extended to victim
restitution orders. (People v. Evans (2019) 39 Cal.App.5th 771, 777; People v. Pack-
Ramirez (2020) 56 Cal.App.5th 851, 859; People v. Abrahamian (2020) 45 Cal.App.5th
314, 338; People v. Allen (2019) 41 Cal.App.5th 312, 321, 326.)
As for the restitution fine and fees, as we explained in People v. Aviles (2019) 39
Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly decided and an Eighth
Amendment analysis is more appropriate to determine whether restitution fines, fees, and
assessments in a particular case are grossly disproportionate and thus excessive. (Aviles,
supra, 39 Cal.App.5th at pp. 1068–1072.) Under that standard, the fines and fees
5The California Supreme Court is currently considering whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof. (See People v.
Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)
13.
imposed in this case are not grossly disproportionate to defendant’s level of culpability
and the harm he inflicted, and thus not excessive under the Eighth Amendment. (Id. at
p. 1072.)
Even if counsel was ineffective for failing to object, any error under Dueñas is
necessarily harmless and not prejudicial because defendant has the ability to pay the
fines, fees, and assessments over the course of his prison sentence. (Aviles, supra, 39
Cal.App.5th at pp. 1075–1077.) “ ‘ “Ability to pay does not necessarily require existing
employment or cash on hand.” [Citation.] “[I]n determining whether a defendant has the
ability to pay a restitution fine, the court is not limited to considering a defendant’s
present ability but may consider a defendant’s ability to pay in the future.” [Citation.]
This include[s] the defendant’s ability to obtain prison wages and to earn money after his
release from custody. [Citation.]’ [Citations.]” (Aviles, supra, 39 Cal.App.5th at
p. 1076.)
There is nothing in the record to show that defendant would be unable to satisfy
the restitution fine and fees imposed by the court while serving his prison term, either
from prison wage or monetary gifts from family and friends. (People v. Potts (2019)
6 Cal.5th 1012, 1055–1057; People v. Lewis (2009) 46 Cal.4th 1255, 1321; Aviles, supra,
39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v.
DeFrance (2008) 167 Cal.App.4th 486, 505; People v. Douglas (1995) 39 Cal.App.4th
1385, 1397.) Moreover, as defendant concedes, the record shows he had some assets,
including his mobile home, four firearms, and cash, and he mentioned the existence of a
pension.
Finally, contrary to defendant’s argument, the court’s decision not to order
reimbursement of the costs of representation is inapposite to any ability to pay
determination for fines and fees. The court’s reimbursement finding was based on the
statutory presumption contained in section 987.8, that a defendant sentenced to more than
one year in prison does not have the ability to reimburse defense costs. This statutory
14.
presumption does not apply to whether defendant has the ability to pay a restitution fine
and fees. (§ 987.8, subd. (g)(2)(B); Aviles, supra, 39 Cal.App.5th at pp. 1074–1075;
People v. Rodriguez (2019) 34 Cal.App.5th 641, 646.)
We thus conclude defense counsel’s failure to object was not prejudicial.
III. Correction of Abstract of Judgment
At the sentencing hearing, the court imposed two consecutive terms of seven years
to life for the attempted murder convictions, plus two consecutive terms of 25 years to
life for the firearm enhancements, for an aggregate term of 64 years to life.
The parties agree the abstract of judgment stated defendant’s sentence was two
consecutive terms of 32 years to life for counts 1 and 2. The abstract listed both firearm
enhancements pursuant to section 12022.53, subdivision (d), but an “S” was erroneously
inserted next to the firearm enhancements to indicate the terms were “stayed.”
The abstract of judgment must be corrected to remove the “S” and clarify that
defendant was sentenced to two consecutive terms of 25 years to life for both firearm
enhancements attached to counts 1 and 2.
DISPOSITION
The criminal protective orders issued pursuant to section 136.2, subdivision (i)(1)
are stricken.
The abstract of judgment is ordered corrected to remove the notation that the
section 12022.53, subdivision (d) firearm enhancements were “stayed” and to clarify that
defendant was sentenced to consecutive terms of 25 years to life for the enhancements
attached to counts 1 and 2.
In all other respects, the judgment is affirmed as modified. The trial court shall
prepare and forward to all appropriate parties a certified copy of an amended abstract of
judgment.
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