P. v. Hinton

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Filed 6/19/07 P. v. Hinton CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
GINA HINTON,
Defendant and Appellant.
A114057
(San Mateo County
Super. Ct. No. SC060066)
Defendant Gina Hinton appeals from a judgment convicting her of several
offenses including assault with a deadly weapon on a police officer and second degree
robbery. She contends that the trial court erred in failing sua sponte to instruct the jury on
the lesser included offense of assault on a police officer and that there is insufficient
evidence to support her robbery conviction. She also argues that the trial court’s
imposition of an upper term sentence violated her constitutional right to a jury trial under
(Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California
(2007) 546 U.S.___ [127 S.Ct. 856] (Cunningham).) We conclude that the trial court did
not err in instructing the jury and that substantial evidence supports defendant’s robbery
conviction, but that the imposition of an upper term sentence violated defendant’s
constitutional right to a jury trial as construed in Blakely and Cunningham. Accordingly,
we affirm the conviction and remand for resentencing.

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FACTUAL AND PROCEDURAL H ISTORY
On December 20, 2005, defendant was charged by information with second degree
burglary (Pen. Code,1 § 460, subd. (b) - count one), second degree robbery (§ 211,
subd. (c) - counts two, three and four), driving with willful or wanton disregard for the
safety of persons and property while fleeing from a pursuing peace officer’s vehicle
(Veh. Code, § 2800.2 - count five), assault with a deadly weapon on a police officer
(§ 245, subd. (c) - count six), and possession of a controlled substance (Health & Saf.
Code, § 11350, subd. (a) - counts seven and eight). The information also alleged that
defendant had suffered a prior conviction for possession of a controlled substance.
(Health & Saf. Code, § 11350, subd. (a).)
Evidence of the following facts was presented at the jury trial:
On May 25, 2005, at 9:15 p.m., defendant attempted to leave a Target store in
Colma without paying for merchandise that she had concealed in two gift bags. As
defendant entered the vestibule of the store, she was ordered to stop by two security
guards who had been observing her on the store’s surveillance cameras. When the guards
asked defendant to return to the store, she refused and tried to leave. When one of the
guards grabbed her arm, defendant pulled a canister of mace from her purse and sprayed
the guard. Although the guard ducked, the mace contacted the side of his face, burning
his eyes and skin. The second guard was also sprayed on his shoulder. A third guard
arrived and attempted to stop defendant from leaving by grabbing her cart. Defendant
sprayed the top of his head, grabbed her bags and fled. The guards called the police and
gave them a description of defendant and her car.
Officer William Pon, in uniform and driving a police motorcycle, responded to the
call and spotted defendant’s vehicle in traffic. He activated his lights and siren, but
defendant did not stop. Pon, along with Sergeant Stratton who was driving a marked
police car, chased defendant from Colma to San Francisco. During the course of the five-
to seven-minute chase, defendant drove at excessive speeds and ran though numerous
1 All statutory references are to the Penal Code unless otherwise noted.

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stop signs and red lights. Pon followed defendant down a dead-end street and stopped his
motorcycle one and a half car lengths behind defendant’s car. Pon saw the car’s reverse
taillight come on, and the car began backing up at five to ten miles an hour. As Pon
jumped off his motorcycle, the car struck the motorcycle, dragging it backwards and
pushing the handlebar into Pon’s leg. Pon was unable to disengage his radio and was
pulled to the ground. Defendant continued to rev the engine, causing Pon to fear the car,
which was four and one-half feet from him, was going to crush him between the
motorcycle and another car parked behind him. When he stood his radio cord disengaged.
He drew his gun and ordered defendant to stop. When she continued to rev the engine, he
fired his gun three times. Defendant raised both hands and said, “I give up. I’m shot.
Don’t shoot.”
Officer Roger Arreola testified that he pulled into the dead end street just as
defendant’s car was backing up. He saw the motorcycle on the ground and Pon’s leg
pinned under it. Arreola parked his car behind defendant’s car so that she could not crush
Pon. A witness testified that he twice heard the gunning of a car’s engine and a
“crunching noise” as if “something was trying to drive over something” metallic, and
then heard three gunshots.
Once defendant was removed from the car, officers recovered two gifts bags
containing the stolen merchandise. The police also recovered two bindles of an off-white
substance, later determined to be cocaine, and four bindles of a black substance, later
determined to be heroin.
In her defense, defendant offered the expert testimony of Dr. Terry Forte, who
opined that Pon fired four not three rounds from his gun.
The jury found defendant guilty as charged. Defendant waived a jury trial on the
prior conviction allegation, and the court found the allegation true. The court imposed the
upper term of five years on one count of second degree robbery, a consecutive term of 16
months (one-third the midterm) for assault with a deadly weapon upon a police officer,
and concurrent terms on all other counts, for a total of six years four months in state
prison. Defendant filed a timely notice of appeal.

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DISCUSSION
1. The jury was properly instructed.
The jury was instructed pursuant to CALCRIM No. 860 that “The defendant is
charged in Count 6 with assault with a deadly weapon on a peace officer. [¶] To prove
that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
did an act with a deadly weapon that by its nature would directly and probably result in
the application of force to a person; [¶] 2. The defendant did that act willfully;
[¶] 3. When the defendant acted, she was aware of facts that would lead a reasonable
person to realize that her act by its nature would directly and probably result in the
application of force to someone; [¶] 4. When the defendant acted, she had the present
ability to apply force with a deadly weapon; [¶] 5. When the defendant acted, the person
assaulted was lawfully performing his duties as a peace officer; [¶] AND 6. When the
defendant acted, she knew, or reasonably should have known, that the person assaulted
was a peace officer who was performing his duties.” The jury was further instructed that
“[a] deadly weapon is any object, instrument, or weapon that is inherently deadly or
dangerous or one that is used in such a way that it is capable of causing and likely to
cause death or great bodily injury.” Defendant contends that the trial court erred in failing
on its own motion to instruct on the lesser included offense of simple assault on a peace
officer because there was substantial evidence on which the jury might have found that
defendant’s car was not being used as a deadly weapon.
“The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request. [Citations.] That obligation encompasses instructions on lesser included offenses
if there is evidence that, if accepted by the trier of fact, would absolve the defendant of
guilt of the greater offense but not of the lesser.” (People v. Blair (2005) 36 Cal.4th 686,
744-745.) Ordinarily, the obligation to instruct on lesser included offenses exists even
over the objections of the parties. (People v. Birks (1998) 19 Cal.4th 108, 118.) However,
“ ‘[a] defendant may not invoke a trial court’s failure to instruct on a lesser included
offense as a basis on which to reverse a conviction when, for tactical reasons, the

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defendant persuades a trial court not to instruct on a lesser included offense supported by
the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant
from challenging on appeal the trial court’s failure to give the instruction.’ ” (People v.
Horning (2004) 34 Cal.4th 871, 905.) In order to support a claim of invited error, the
record must reflect deliberate action by the defense to cause the court to fail fully to
instruct. (People v. Avalos (1984) 37 Cal.3d 216, 229.) “Invited error . . . will only be
found if counsel expresses a deliberate tactical purpose in resisting or acceding to the
complained-of instruction.” (People v. Valdez (2004) 32 Cal.4th 73, 115.)
Here, defendant’s attorney specifically requested that the court not instruct on the
lesser included assault offense. In response to the court’s inquiry, defendant’s attorney
stated, “[W]hile I would concede as a matter of law that it is a lesser included offense to
what Ms. Hinton is charged with, I am specifically requesting that the court not give this
instruction. I am seeking a flat out not guilty on this count. And I’m not going to be
arguing, you know, some part of this was committed but not all of it. And I do not and I
specifically request that I do not want this instruction given to this jury.” Thereafter, the
court stated, “Seems like the only real issue is whether the vehicle constitutes a deadly
weapon. And under the circumstances here, it seems as though it would be a stretch to
argue that the motor vehicle in the circumstances of this case was not a deadly weapon in
view of the collision with the motorcycle and so forth. So for the reasons stated, the court
will not deliver [the instruction on the lesser included offense].”
Despite defendant’s contrary argument on appeal, it is difficult to imagine a
clearer case of invited error. The court did not, as defendant suggests, find “that
[defendant’s] vehicle necessarily constituted a deadly weapon under the circumstances.”
Nor is defendant correct that the court’s ruling was “not prompted by defense counsel’s
request, but rather on the court’s own erroneous determination that the evidence did not
support such instruction[].” In response to the defense attorney’s request, the court
merely noted that under the circumstances it would be “a stretch” to argue that the car
was not a deadly weapon. The court’s observation simply acknowledged the soundness of
the defense attorney’s tactical decision to request that the lesser included instruction not

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be given. Hence, defendant is barred from challenging on appeal the court’s failure to
instruct on the lesser included offense. (People v. Horning, supra, 34 Cal.4th at pp. 905-
906.)
2. Defendant’s robbery conviction is supported by substantial evidence.
Robbery is defined in section 211 as “the felonious taking of personal property in
the possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” Defendant’s three robbery convictions were
based on her theft of the Target merchandise from the immediate presence of the three
security guards by use of force or fear. Defendant contends that her convictions must be
reversed because there was insufficient evidence to establish that she “took the store’s
property from the immediate presence of the security guards.”
Assuming, without deciding, that the security guards’ contemporaneous
observation by means of an on-site surveillance camera of defendant placing merchandise
in bags and leaving the store without paying is insufficient to establish the immediate
presence requirement,2 defendant’s subsequent encounter with the guards in the vestibule
of the store is sufficient. (People v. Estes (1983) 147 Cal.App.3d 23, 26 (Estes).) In Estes,
a security guard watched a defendant remove clothing from store shelves, put the clothing
on and leave the store without paying. The guard “followed defendant outside the store,
identified himself, and confronted him about the coat and vest in the parking lot about
five feet from the store. Defendant refused to accompany [the guard] to the store and
2 In People v. Hayes (1990) 52 Cal.3d 577, 627 (Hayes), our Supreme Court held
that a taking is from the immediate presence of the victim if it occurs in an area within
the victim’s reach, inspection, observation or control such that he or she could, if not
overcome by force or fear, retain possession of the property. “Under this definition,
property may be found to be in the victim’s immediate presence ‘even though it is located
in another room of the house, or in another building on [the] premises.’ ” (Ibid.) “The
term ‘immediate presence’ is to be liberally construed. Any and all the sensory
perceptions are included in determining ‘presence.’ [Citations.] The actual corporeal
presence of the victim is not required.” (People v. Hays (1983) 147 Cal.App.3d 534, 541-
542.) Here, the guards observed defendant place store merchandise in bags and pass the
check stand without paying and they were close enough to get from the security office to
the vestibule in time to intercept defendant before she left the store.

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began to walk away. As [the guard] attempted to detain him, defendant pulled out a knife,
swung it at [the guard], and threatened to kill [him]. [The guard], who was unarmed,
returned to the store for help.” (Ibid.) On appeal, defendant argued that “the merchandise
was not taken from the ‘immediate presence’ of the security guard.” (Id. at p. 27.) The
court rejected this argument, stating, “The evidence establishes that appellant forcibly
resisted the security guard’s efforts to retake the property and used that force to remove
the items from the guard’s immediate presence. By preventing the guard from regaining
control over the merchandise, defendant is held to have taken the property as if the guard
had actual possession of the goods in the first instance. [Citation.] [¶] . . . A robbery is not
completed at the moment the robber obtains possession of the stolen property. The crime
of robbery includes the element of asportation, the robber’s escape with the loot being
considered as important in the commission of the crime as gaining possession of the
property. . . . [A] robbery occurs when defendant uses force or fear in resisting attempts
to regain the property or in attempting to remove the property from the owner’s
immediate presence regardless of the means by which defendant originally acquired the
property.” (Id. at pp. 27-28.) Subsequently, in Miller v. Superior Court (2004) 115
Cal.App.4th 216, 222 (Miller) the court, relying on Estes, supra, 147 Cal.App.3d 23,
confirmed that while “[t]raditionally, the ‘immediate presence’ requirement has been
described as relating to the ‘gaining possession’ element of the taking rather than the
‘carrying away’ element of a robbery charge,” “subsequent authority establishes that the
victim’s presence after the taking is in progress is sufficient to establish the immediate
presence element of a robbery charge.”
Defendant argues that Estes was overruled by the California Supreme Court in
People v. Cooper (1991) 53 Cal.3d 1158 (Cooper). In Cooper, in the course of deciding
that one is an aider and abettor of a robbery if he forms the intent to facilitate the robbery
and does so during the “carrying away of the loot to a place of temporary safety” (id. at
p. 1161, italics omitted), the court stated that the “immediate presence” requirement
“relate[s] to the ‘gaining possession’ component of the taking as distinct from the
‘carrying away’ component” (id. at p. 1166). In Miller, supra, 115 Cal.App.4th at

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page 223, a majority of the court expressly rejected the argument that the Supreme Court
in Cooper overruled Estes “to the extent Estes concludes the element of ‘immediate
presence’ can be satisfied by a victim’s presence during a defendant’s asporting or
carrying away of property.” The majority explained that “although Cooper described the
immediate presence element of a robbery charge as relating to the ‘gaining possession’
element of the taking rather than the ‘carrying away’ element [citation], the opinion did
not overrule or disapprove of Estes in any respect, but rather cites Estes with approval.”
(Miller, supra, at pp. 223-224.)3 We agree. Since a robbery involves conduct continuing
from the initial taking until the property reaches a place of temporary safety, using force
or fear to prevent the victim from regaining possession before temporary safety has been
achieved satisfies the immediate presence required for the commission of a robbery. As
the court noted in Miller, “in light of the widespread acceptance of the analysis of Estes
and the fact that the California Supreme Court has not criticized or overruled Estes in the
20 years since that decision issued, we do not believe that our opinion expresses a change
in the law, but instead reflects the current state of the law on the issue of what is
sufficient to establish the immediate presence element of a robbery charge.” (Miller,
supra, at p. 224.) Accordingly, defendant’s robbery convictions must be upheld.4
3. The judgment must be remanded for resentencing.
Defendant contends the trial court imposed the upper term on her robbery
conviction in violation of Blakely, supra, 542 U.S. 296 and Cunningham, supra, 546
U.S.___ [127 S.Ct. 856]. The trial court explained its sentencing decision as follows:
“The court will select count 2, the first of the robbery counts, as the principal terms and
3 The statement in Cooper to which the Miller court cited points out that “a long
line of Court of Appeal cases, left undisturbed by this court, hold[s] that mere theft
becomes robbery if the perpetrator, having gained possession of the property without use
of force or fear, resorts to force or fear while carrying away the loot.” (Cooper, supra, 53
Cal.3d at p. 1165, fn. 8.)
4 We note that similar issues are currently pending review before the California
Supreme Court. (People v. Gomez (2005) 134 Cal .App.4th 1241, review granted March

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will impose the aggravated term relying on various criteria in [California Rules of
Court,5] rule 4.421, circumstances in aggravation, including (a), (a)(1), the crime
involved great violence, great bodily harm, and threat of great bodily harm or other acts
disclosing a high degree of cruelty, viciousness, or callousness; (2), the defendant was
armed with or used a weapon at the time of the commission of the crime; (a)(8), the
manner in which the crime was carried out indicates planning, sophistication, or
professionalism. The fact that you entered the store with foil-lined bags I think certainly
shows planning and some professionalism. [¶] And, most importantly, the circumstances
described in (b)(1) and (2), the defendant has engaged in violent conduct which indicates
a serious danger to society; and (2), the defendant’s prior convictions . . . are numerous or
of increasing seriousness. I think that clearly applies here and warrants the upper term.”
Defendant objected to the sentence on the ground that imposition of the upper
term on these facts not found by the jury or admitted by defendant violated Blakely. The
court disagreed, stating, “[T]he California Supreme Court has spoken on that issue and
finds no Blakely problem in California. Ultimately, it will be for the United States
Supreme Court to decide. [¶] But, I want to point out for the record in finding aggravated
circumstances on the upper term as relating to the crime as I indicated but also facts
relating to the defendant, including her prior record of convictions, and in the court’s
view, the facts relating to the defendant are actually more serious and more aggravating
than those relating to the facts of this case. And even under Blakely and Federal law, the
factors that the court announced in—under rule 4.421 (b)(1) and (b)(2) fully support an
aggravated term under the federal Constitution. And this court so explicitly makes a
factual finding with regard to the preeminent facts in (b)(1) and (b)(2) and on which it is
relying.”
22, 2006, S140612, and People v. Johnson (2006) 141 Cal.App.4th 1161, review granted
November 15, 2006, S146207.)
5 All rule references are to the California Rules of Court.

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In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi ), the United States
Supreme Court held, “Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) Blakely held that “the
‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the
court held that under California’s determinant sentencing scheme the upper term can be
imposed only if the factors relied upon comport with the requirements of Apprendi and
Blakely. (Cunningham, supra, 546 U.S. ___ [127 S.Ct. 856].) Blakely describes three
types of facts that a trial judge may properly use to impose an aggravated sentence:
(a) “the fact of a prior conviction” (Blakely, supra, 542 U.S. at p. 301); (b) “facts
reflected in the jury verdict” (id. at p. 303, italics omitted); and (c) facts “admitted by the
defendant” (ibid., italics omitted).
As we now know, in Cunningham, supra, 546 U.S. ___ [127 S.Ct. 856], the
United States Supreme Court overruled the decision of the California Supreme Court in
People v. Black (2005) 35 Cal.4th 1238, 1244, which had upheld California sentencing
laws. Under Cunningham, the trial court’s consideration of the factors relating to the
crime listed in subdivision (a) of rule 4.421 was improper. The Attorney General argues,
however, that the court’s reliance on the recidivism factors reflected in subdivision (b) of
rule 4.421 was permissible and sufficient to support defendant’s sentence. The Attorney
General also argues that in light of the evidence in this case, any error in relying on the
impermissible factors was harmless beyond a reasonable doubt. (Washington v. Recuenco
(2006) ___ U.S. ___ [126 S.Ct. 2546, 2551-2553] [denial of jury trial on sentencing
factor subject to review for prejudice].)
The fact of a prior conviction, or a defendant’s “recidivism,” is a sentencing factor
unrelated to the commission of the charged offense which the United States Supreme
Court has reaffirmed may be considered without an admission or jury finding. The prior
convictions on which it is based result from proceedings in which the defendant was

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already afforded substantial constitutional protections. (Cunningham, supra, 546 U.S. at
p. __ [127 S.Ct. at p. 860]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S.
at pp. 487-488; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243-244.)
California and other jurisdictions have held that the recidivism exception to the jury trial
right established by Apprendi and Blakely applies not only to the precise fact of a prior
conviction but also to other factors that necessarily follow from the prior conviction, such
as being on probation or parole at the time of the instant offense. (People v. McGee
(2006) 38 Cal.4th 682, 695-709; People v. Abercrombie (2007) ___ Cal.App.4th ___
[2007 WL 1532807, p. *5]; People v. Thomas (2001) 91 Cal.App.4th 212, 215-223.) In
People v. McGee, supra, 38 Cal.4th at pages 707 and 709, the court explained that
Apprendi does not preclude a court from making sentencing determinations related to a
defendant’s recidivism because the required inquiry contemplates only “the examination
of court records pertaining to a defendant’s prior conviction to determine the nature or
basis of the conviction—a task to which Apprendi did not speak and [which is] ‘the type
of inquiry that judges traditionally perform as part of the sentencing function.’ ” (Italics
omitted.) The scope of this exception, however, is not yet settled.6
Here, in response to defendant’s Blakely objection, the trial court expressly stated
that two “recidivism factors” on which it was relying were sufficient to support the
imposition of the upper term without consideration of other factors. This explanation
adequately eliminated any question of prejudice from the court’s reference to crime-
related factors listed in subdivision (a) of rule 4.421. However, we do not believe that
both of the rule 4.421, subdivision (b) factors on which the court relied are beyond the
scope of Apprendi and Blakely. The two factors to which the trial court referred are that
6 This issue is among those now pending in the California Supreme Court. (E.g.,
People v. Hernandez (2006) 2006 WL 3325604, review granted Feb. 7, 2007, S148974.)
The Supreme Court has previously rejected defendant’s arguments that there is no valid
prior conviction exception, and that any such exception must be narrowly construed.
(People v. McGee, supra, 38 Cal.4th at pp. 695-709.) Until we receive further direction
from our high court, we are bound by existing precedent. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)

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the defendant has engaged in violent conduct which indicates a serious danger to society
(rule 4.421(b)(1)) and that the defendant’s prior convictions are numerous or of
increasing seriousness (rule 4.421(b)(2)). The Attorney General acknowledges implicitly
that the finding that defendant engaged in violent conduct indicating a serious danger to
society is a not recidivist factor that can be applied without additional fact-finding.
However, he argues that the jury’s finding that defendant robbed the victims by use of
force or fear is sufficient to support application of this factor. A factor in aggravation,
however, must have the effect of making a crime “ ‘ “distinctively worse than the
ordinary” ’ ” (People v. Webber (1991) 228 Cal.App.3d 1146, 1169), and a fact that is an
element of a crime or that is essential to a jury’s determination of guilt may not be used to
impose the upper term (Cunningham, supra, 546 U.S. at p. ___ [127 S.Ct. at p. 868]; see
also rule 4.420(d)). Hence, the trial court improperly considered this factor in imposing
the upper term.7
The second factor on which the court relied may have been properly considered
without a jury finding or admission by the defendant. Rule 4.421(b)(2) specifies as a
factor in aggravation that “[t]he defendant’s prior convictions . . . are numerous or of
increasing seriousness.” This factor is stated in the alternative. While there may be some
subjectivity in determining how many convictions it takes to be “numerous,” the
determination turns on no factual issues and would seem more appropriately treated as a
question of law. In addition to the present offense, defendant was previously convicted of
two misdemeanors and two felonies. Five convictions, we think it safe to say, are
numerous. Moreover, the felonies were preceded by the misdemeanors. And defendant’s
first felony conviction was for possession of cocaine base for sale (Health & Saf. Code,
§ 11351), for which the sentencing range is two, three or four years in state prison, while
7 We also reject the Attorney General’s argument that consideration of this factor
was harmless beyond a reasonable doubt because if this factor had been submitted to the
jury, it unquestionably would have been found to be true. While a jury might reasonably
have so found, we cannot conclude beyond a reasonable doubt that a jury necessarily
would have done so.

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the sentencing range on defendant’s present robbery conviction is two, three or five years
(§ 212.5, 213, subd. (a)(2).) Hence, defendant’s offenses have been of increasing
seriousness.
While one permissible recidivism factor is sufficient to support an upper term
sentence (People v. Osband (1996) 13 Cal.4th 622, 728-729 [single aggravating
circumstance is sufficient to render defendant eligible for the upper term]), we cannot
agree with the Attorney General that this renders the trial court’s reliance on an
impermissible factor necessarily harmless error. The trial judge here made clear that he
considered the two factors relating to defendant sufficient to justify the upper term, but he
did not say, and we cannot know beyond a reasonable doubt, that he would reach the
same conclusion based only upon the single factor he was permitted to consider.
(Chapman v. California (1967) 386 U.S. 18.) We have no choice but to remand so that
the trial court may exercise its discretion in selecting the proper sentence in light of the
permissible recidivism factor (assuming that the district attorney does not seek to prove
additional factors before a jury).
DISPOSITION
Defendant’s conviction is affirmed, the sentence is vacated, and the matter is
remanded to the trial court for resentencing in accordance with the views expressed
_________________________
Pollak, J.
We concur:
_________________________
Parrilli, Acting P. J.
_________________________
Siggins, J.

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