P. v. Stiles

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Filed 5/10/07 P. v. Stiles CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
BRUCE EDWARD STILES,
Defendant and Appellant.
E040964
(Super.Ct.No. FSB054865)
OPINION
APPEAL from the Superior Court of San Bernardino County. Kenneth Barr,
Judge. Affirmed; modified in part.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr.,
Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General,
for Plaintiff and Respondent.

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I. INTRODUCTION
Defendant Bruce Edward Stiles appeals his conviction of three arson-related
charges with associated enhancements. On appeal, defendant contends: (1) the evidence
was insufficient to support his conviction on two counts; (2) the one-year concurrent
enhancement for one prison prior must be stricken because the underlying prison term
was served concurrently with the term for another prison prior; (3) the trial court’s
finding of identity in defendant’s prior convictions deprived defendant of his right to trial
by jury on the prior convictions; and (4) his sentence for attempted arson should be
reduced to the middle term because the trial court imposed the aggravated term on the
basis of facts not found by the jury. We agree with defendant’s contention that the
concurrent enhancement for a prison prior must be stricken. We find no other errors.
II. FACTS AND PROCEDURAL BACKGROUND
Defendant and Rudolph Magana had known one another since 1991 or 1992. In
January or February 2005, defendant stayed at Magana’s house a few days. On one
occasion, defendant refused to leave when Magana requested him to. Defendant said,
“‘he didn’t have to go anywhere and he could go anywhere he wanted.’”
Around November 5, 2005, Magana vacated his house in order to renovate it. On
November 12, defendant came to the house where Magana was working. Magana asked
him to leave, but he refused. Magana and defendant got into a fight during which
defendant punched Magana in the face. A friend of Magana broke up the fight, and

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defendant left after stating to Magana something like, “It is not over yet” and that he
would be back.
On November 20, Anthony Aldrete, a neighbor of Magana, saw a bottle burning
on the side of Magana’s house at 2:30 or 3:00 p.m. Aldrete put the fire out with a fire
extinguisher. He did not see anyone in the area. Patricia Fea, an arson investigator,
determined that two Molotov cocktails had been involved, but that one had failed to
ignite. One of the Molotov cocktails was intact; it consisted of paint thinner in an Old
Forester bourbon bottle. Fea also found a lighter on the street near the curb. No usable
fingerprints were recovered from the bottle.
About 5:00 that same afternoon, Aldrete noticed a mid-sized white pickup truck
parked in front of Magana’s garage. A person threw a liquid substance towards the
garage door, and the pickup truck drove away. A short time later, the garage went up in
flames. At trial, Aldrete testified he had been too far away to tell whether the person was
a man or woman. A fire investigator testified, however, that Aldrete had stated at the
scene that the person in the truck appeared to be a White male who was not wearing a
shirt. Aldrete had also told the investigator that the man had been driving a newer model
white Nissan Frontier extra-cab pickup truck. Fea determined that the fire had started at
the garage door and had been intentionally set using an accelerant. The fire caused
structural damage to the garage and destroyed all its contents.
That same day, Diane Braun had been visiting a friend, Terry Arceneaux, at his
apartment when defendant came by to collect a $20 debt and to retrieve a shotgun.

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Arceneaux told defendant he did not have the $20 and he had sold the shotgun.
Defendant became angry. Braun asked Arceneaux to purchase some groceries for her.
Arceneaux and defendant left at 2:30 p.m. and defendant returned by himself at about
3:35 p.m.
Defendant walked to the back of the apartment complex carrying an ice chest.
Braun asked what he was doing, and defendant replied, “‘anything he want[ed].’”
Defendant carried in Braun’s groceries and then left. He returned a few minutes later and
went to the back of the apartment complex before again leaving. A short time later, a fire
broke out at the back of the apartment complex. Detective Lance Stewart found gasoline
inside a partially burnt cooler, and it appeared the fire had started at the cooler. An
investigator was unable to lift any useable fingerprints from the cooler.
Braun testified that defendant drank hard liquor, including bourbon and vodka,
and that defendant’s favorite brands of bourbon were Wild Turkey and Jim Beam.
Around 10:30 p.m. on November 29, William Beaumont, a fire investigator with
the San Bernardino Fire Department, was called to a fire at Magana’s house. The fire,
which burned some shrubbery, had been started by a Molotov cocktail, consisting of a
Wild Turkey bottle containing gasoline and a cloth wick. No useable fingerprints could
be lifted from the bottle.
Defendant’s fiancée, Tamara Harbicht, testified she owned a silver Honda
Element, and she had purchased a white Nissan Frontier pickup truck for defendant to
use. Defendant also sometimes drove the Honda Element. Defendant worked as a house

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painter, and he used paint thinner to clean his brushes. He carried brushes and paint
thinner in the pickup truck and in the Honda Element. Harbicht kept a gasoline container
in the Honda Element, and she had some river rocks in the car to be used for landscaping.
Captain John Payan of the San Bernardino Fire Department set up a surveillance at
Magana’s house with Investigator Mike Koster at about 9:00 p.m. on November 30.
When Captain Payan arrived at the house, he noticed a strong odor of gasoline coming
from the front (the west side) of the house. He walked around the house, but he did not
see any gasoline cans. Several windows on the north side of the house were boarded up,
but the bathroom window was intact.
About 11:00 p.m., Captain Payan saw a silver Honda Element pull up in front of
Magana’s house and park facing traffic. The headlights were turned off, but the parking
lights were left on. A White man about six feet tall1 got out of the car, walked to the
north side of the property, and returned a minute later. Captain Payan could not tell if the
man was carrying anything. When the man returned to the Honda Element, Captain
Payan pulled his car up with his bright lights and red flashing grill lights on to block the
man from leaving, but the man drove over the curb and sped away.
Captain Payan and Investigator Koster gave chase to the Honda Element, which
drove erratically at a high rate of speed. The California Highway Patrol joined the
pursuit, and the driver of the Honda Element, defendant, eventually yielded and pulled
over. Captain Payan and Investigator Koster recovered two lighters from defendant’s

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pockets and a partially full gasoline container, a glass jar, a gray bandanna containing
residue of a medium petroleum distillate such as paint thinner, and a river rock from
inside the Honda Element.
The next day, Captain Payan found two river rocks, similar to the one found in the
Honda Element, on the north side of Magana’s house, near the bathroom window, which
was broken. Captain Payan smelled gasoline near the bathroom window. Investigator
Koster discovered a green watering can that smelled strongly of gasoline in the area
where Captain Payan had noticed the odor of gasoline the night before. A sample of
liquid from the watering can was found to contain gasoline and a medium petroleum
distillate such as that found on the grey bandanna.
Magana’s house was about three miles, or a seven to nine minute drive, from
Arceneaux’s apartment.
Defendant was charged with seven counts of arson and arson-related charges in
connection with the fires at Magana’s house and behind Braun’s apartment complex. He
was convicted of arson of a structure in connection with the November 20 fire at
Magana’s garage (count 4) (Pen. Code,2 § 451, subd. (c); arson of property in connection
with the incident at Braun’s apartment complex on November 20 (count 5) (§ 451, subd.
(d)); and attempt to burn in connection with the incident at Magana’s house on
November 30 (count 1) (§ 455). The jury found him not guilty of possession of or
[footnote continued from previous page]
1 The probation report indicates that defendant is 5 feet 11 inches tall.

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attempt to use a destructive device to injure or destroy (§ 12303.3) on November 29 as
alleged in counts 2 and 6, and arson of property (§ 451, subd. (d)) on November 20 and
29, as alleged in counts 3 and 7. The jury found true the allegations that defendant had
suffered five prison priors.
The trial court sentenced defendant to the aggravated term of six years for count 4,
a consecutive eight months (one-third the middle term) for count 1, and a consecutive
eight months (one-third the middle term) for count 5. The court further sentenced
defendant to a consecutive four years (one year each for four of the prison priors) and to a
concurrent one year for the fifth prison prior.
III. DISCUSSION
A. Sufficiency of Evidence
Defendant contends the evidence was insufficient to support his convictions in
counts 1 and 4.
1. Standard of Review
In reviewing a claim of insufficiency of the evidence, this court examines the
entire record in the light most favorable to the judgment and determines whether it
contains substantial evidence that is reasonable, credible, and of solid value, such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Lewis (2001) 25 Cal.4th 610,
[footnote continued from previous page]
2 All further statutory references are to the Penal Code unless otherwise indicated.

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642.) We view the evidence in the light most favorable to the judgment, and we presume
in support of the judgment the existence of every fact the trier of fact could reasonably
deduce from the evidence. (People v. Carpenter (1997) 15 Cal.4th 312, 387.) We do not
reweigh the evidence or substitute our assessment of the witnesses’ credibility for that of
the fact finder. (People v. Koontz (2002) 27 Cal.4th 1041, 1089.) If substantial evidence
supports the verdict, we do not reverse the judgment simply because the circumstances
might have supported a contrary finding. (People v. Lewis, supra, at pp. 643-644.)
2. Analysis
a. Count 4 – Arson
Defendant was found guilty of arson of a structure in violation of section 451,
subdivision (c) in count 4, based on the burning of Magana’s garage on November 20.
Arson is a general intent crime. (People v. Atkins (2001) 25 Cal.4th 76, 84.)
Because of the nature of the crime, evidence of arson is often circumstantial.
(People v. Beagle (1972) 6 Cal.3d 441, 449 (Beagle), overruled on other grounds by
People v. Castro (1985) 38 Cal.3d 301, 307-308.) In Beagle, the Supreme Court noted
that courts have relied on a number of factors when affirming arson convictions when the
sufficiency of evidence has been challenged. (Id. at pp. 449-450.) Those factors include
motive evidenced by a threat (People v. Watkins (1968) 262 Cal.App.2d 687, 688-689);
the defendant’s prior presence in the building (People v. Curley (1970) 12 Cal.App.3d
732, 735-736); the defendant’s possession of inflammatory materials (id. at pp. 735-736);
the defendant’s presence in the vicinity at the time of the fire (People v. Alexander (1960)

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182 Cal.App.2d 281, 283-286, superseded by statute as stated in People v. Sexton (1995)
33 Cal.App.4th 64, 70); evidence of intentional cause of a fire (People v. Clagg (1961)
197 Cal.App.2d 209, 212); more than one fire with temporal and spatial proximity
(People v. Cole (1968) 258 Cal.App.2d 656, 658-659); and the defendant’s possession of
an instrumentality used to start a fire (People v. Wolfeart (1950) 98 Cal.App.2d 653, 654-
655).
Here, the record contains evidence corresponding to almost all of the factors listed
in Beagle, supra, 6 Cal.3d 441. The evidence showed motive, in that defendant had had a
fight with Magana on November 5 and had made a threat that “[i]t is not over yet” and
that he would be back. Defendant had stayed at Magana’s house in the past. A man
meeting defendant’s description and driving a vehicle similar to one defendant was
known to drive was seen at the scene of the fire. The evidence indisputably showed that
the fire had been intentionally set. This circumstantial evidence amply supported
defendant’s conviction of count 4.
(b) Count 1 – Attempted Arson
Defendant was found guilty of attempted arson in count 1 based on the incident at
Magana’s house on November 30. Section 455 defines the offense as “[t]he placing or
distributing of any flammable, explosive or combustible material or substance, or any
device in or about any structure, forest land or property in an arrangement or preparation
with intent to eventually willfully and maliciously set fire to or burn same, or to procure
the setting fire to or burning of the same.” Intent is generally proved by the surrounding

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circumstances because direct proof of intent is rare. (See People v. Quintero (2006) 135
Cal.App.4th 1152, 1162.)
The evidence supported the jury’s verdict finding defendant guilty of attempted
arson in count 1. As noted above, the jury could reasonably infer a motive from
defendant’s fight with and threat to Magana. After fleeing from Magana’s house,
defendant was found in possession of instrumentalities that could be used to set a fire – a
gray bandanna that contained petroleum distillate reside, gasoline, and lighters. A green
watering can was located on the premises after defendant had been there; Captain Payan
had not seen the watering can when he had walked around the property earlier that night.
Liquid in the watering can contained both gasoline and petroleum distillate similar to that
in the gray bandanna.
We conclude the evidence was amply sufficient to support defendant’s conviction
of attempted arson in count 1.
B. Sentence Enhancement for Prison Prior
Defendant contends the trial court erred by imposing a concurrent term for one
prison prior allegation rather than striking the term.
1. Background
Evidence that defendant had been convicted of five prior felonies and had served
prison terms was submitted to the jury, and the jury found true the allegations that
defendant had suffered five prison priors.

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The evidence showed that two of the prior prison terms had been served
concurrently. On March 21, 1997, defendant received probation in San Bernardino
Superior Court case No. FVI05458. On June 27, 1997, defendant was sentenced to state
prison in San Bernardino Superior Court case No. FSB14819. An abstract of judgment
dated July 14, 1998, indicated that at a hearing on July 10, 1997, defendant’s probation in
San Bernardino Superior Court case No. FVI05458 was terminated, and he was
committed to state prison to serve a sentence concurrent with his sentence in San
Bernardino Superior Court case No. FSB14819. In a sentencing memorandum, the
People recommended that defendant should receive a total of four years for the five
prison priors.
The trial court stated that it “agree[d] with the People’s position that regarding the
five one-year enhancements, that sentencing is only appropriate for four years and that
FVA 05458, and FSB 01489 [sic] were served concurrently.” In pronouncing sentence,
the trial court stated, “for the enhancement alleged pursuant to Penal Code Section
667.5(b), the one noted earlier – 05458, and FSB 04181 [sic], only one term of one year
will be for those two since they were served consecutively [sic] pursuant to California
law.” The trial court imposed consecutive sentences for the other four prison priors.
Although the trial court did not expressly so state at the sentencing hearing, the minute
order reflects that the trial court ordered “[a]s to prior 4, the Court imposes 1 years [sic]
and 0 months. Prior # 4 to run concurrent to sentence imposed.” Defendant contends this
was error, and the fifth enhancement should instead have been stricken.

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2. Analysis
Section 667.5 provides, “Enhancement of prison terms for new offenses because
of prior prison terms shall be imposed as follows: [¶] . . . [¶] (b) . . . where the new
offense is any felony for which a prison sentence is imposed, in addition and consecutive
to any other prison terms therefor, the court shall impose a one-year term for each prior
separate prison term served for any felony; provided that no additional term shall be
imposed under this subdivision for any prison term served prior to a period of five years
in which the defendant remained free of both prison custody and the commission of an
offense which results in a felony conviction.” Subdivision (e) of section 667.5 provides,
“The additional penalties provided for prior prison terms shall not be imposed for any
felony for which the defendant did not serve a prior separate term in state prison.” A
“prior separate prison term” means “a continuous completed period of prison
incarceration imposed for the particular offense alone or in combination with concurrent
or consecutive sentences for other crimes, including any reimprisonment on revocation of
parole which is not accompanied by a new commitment to prison, and including any
reimprisonment after an escape from incarceration.” (§ 667.5, subd. (g).)
In People v. Jones (1998) 63 Cal.App.4th 744, the court held that only one
enhancement for prior prison terms was proper when the defendant had served concurrent
terms in two prior felony cases. The court noted, “Courts have consistently recognized
that [the language of section 667.5, subdivisions (b) and (g)] means that only one
enhancement is proper where concurrent sentences have been imposed in two or more

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prior felony cases.” (Id. at p. 747 and cases collected.) Citing People v. Jones with
approval, the Supreme Court in People v. Riel (2000) 22 Cal.4th 1153, struck a
“redundant” prison term finding. (Id. at p. 1203.) The court explained, “The jury made
two findings of a prior prison term, one for each [prior felony] conviction. However, the
enhancement was for the prison term, not the convictions. (§ 667.5, subd. (b).)
Defendant had two felony convictions, but he served only one prison term. Accordingly,
we must strike the redundant second prison term finding.” (Ibid.)
Here, likewise, we are required by the holding in People v. Riel, supra, 22 Cal.4th
1153, to strike the concurrent enhancement for the prior prison term.
C. Right to Trial by Jury on Prior Convictions
Defendant contends he was denied his right to trial by jury on the prior
convictions.
1. Factual Background
The information alleged that defendant had suffered five prison priors under
section 667.5, subdivision (b). The allegations were tried by jury. However, before the
case was submitted, the trial court determined that defendant was the person named in the
documentary evidence that was to go to the jury. Without objection, the trial court
instructed the jury that “‘the defendant is the person named in the certified prior
convictions’” in the exhibits.

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2. Forfeiture
The People contend defendant has forfeited any challenge to the procedure by
which the prior conviction allegations were found to be true because he failed to object in
the trial court on the basis now asserted on appeal. (People v. Vera (1997) 15 Cal.4th
269, 278 [the right to jury trial on prior prison term allegations is statutory rather than
constitutional, and the erroneous deprivation of a jury trial on such allegations may be
forfeited by failure to object]; People v. Epps (2001) 25 Cal.4th 19, 29 (Epps) [same].)
Nonetheless, to forestall any claim of ineffective assistance of counsel, we will address
the issue on the merits. (See People v. Norman (2003) 109 Cal.App.4th 221, 229-230
(Norman).)
3. Analysis
By statute, the trial court has the power and obligation to determine identity in
connection with prior conviction allegations. Specifically, section 1025, subdivision (c),
states that “the question of whether the defendant is the person who has suffered the prior
conviction shall be tried by the court without a jury.” In Epps, supra, 25 Cal.4th at p. 25,
the court explained the limited factual inquiry for the jury: “Though subdivision (c) of
section 1025 gives the question of identity to the court, the question whether the alleged
prior conviction ever occurred, when legitimately at issue, remains for jury determination
under subdivision (b).”
Defendant argues, however, that Almendarez-Torres v. United States (1998) 523
U.S. 224, the authority on which section 1025, subdivision (c) was based, has been

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eroded by subsequent United States Supreme Court decisions, and section 1025,
subdivision (c), violates the Sixth Amendment right to trial by jury. In support of this
position, defendant cites Shepard v. United States (2005) 544 U.S. 13, 26 [holding that
the inquiry whether a prior conviction that resulted from a guilty plea is a prior offense
under the Armed Career Criminal Act (18 U.S.C. § 924(e)) “is limited to the terms of the
charging document, the terms of a plea agreement or transcript of colloquy between judge
and defendant in which the factual basis for the plea was confirmed by the defendant, or
to some comparable judicial record of this information”]; Blakely v. Washington (2004)
542 U.S. 296, 303-304 (Blakely) [explaining that “the relevant ‘statutory maximum’ is
not the maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings”]; and Apprendi v. New Jersey
(2000) 530 U.S. 466, 490 (Apprendi) [holding that “[o]ther 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.”].)
Nonetheless, we are bound by the California Supreme Court’s decision in Epps,
supra, 25 Cal.4th at p. 29, under Auto Equity Sales, Inc. v. Superior Court of Santa Clara
County (1962) 57 Cal.2d 450, 455, and we therefore reject defendant’s argument.
D. Imposition of Aggravated Sentence
Defendant contends the trial court erred by imposing the aggravated term for his
conviction of attempted arson because the court based its sentencing decision on facts not
found by the jury. (Blakely, supra, 542 U.S. at pp. 303-304.) Defendant filed a

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supplemental brief to address the effect of Cunningham v. California (Jan. 22, 2007, No.
05-6551) __ U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856].
1. Factual Background
At the sentencing hearing, the trial court stated it found no mitigating factors under
California Rules of Court, rule 4.423(a).3 The trial court then found six separate factors
in aggravation under rule 4.421(a) and (b), including that defendant’s prior convictions
were numerous and of increasing seriousness (rule 4.421(b)(2))4 and that defendant’s
prior performance on probation and parole had been unsatisfactory (rule 4.421(b)(5)).5
The trial court found that the factors in aggravation outweighed the mitigating factors.
Defense counsel did not object on the basis that a jury trial was required on factors in
aggravation.
2. Forfeiture
The People contend that because defendant failed to object in the trial court on the
basis now urged on appeal, he has forfeited any challenge based on Blakely, supra, 542
U.S. 296. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1103 [holding that a Blakely
challenge was forfeited by the defendant’s failure to raise it in the trial court].) However,
to forestall any claim of ineffective assistance of counsel based on failure to raise a
3 All further references to rules are to the California Rules of Court.
4 The probation report reflects that defendant’s criminal record dates back to
1980, and he has been convicted of eight felonies and three misdemeanors.
5 The probation report reflects that defendant had had his probation revoked twice
and had violated parole and had been returned to prison 12 times.

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timely objection, we will address the issue on the merits. (Norman, supra, 109
Cal.App.4th at pp. 229-230.)
3. Analysis
Both Apprendi, supra, and Blakely, supra, recognized that “the fact of a prior
conviction” may be found by a judge, even though any other fact that increases the
maximum statutory penalty for a crime must be found by a jury. (Apprendi, supra, 530
U.S. 466, 490; Blakely, supra, 542 U.S. 296, 302.) California courts have interpreted
broadly Apprendi’s exception for prior convictions. (See People v. Thomas (2001) 91
Cal.App.4th 212, 221-222 (Thomas) [holding that the Apprendi exception for prior
convictions refers broadly to recidivism enhancements].) Moreover, the California
Supreme Court in Epps, supra, 25 Cal.4th 19, held the Apprendi exception applied not
only to the determination that the defendant had suffered a prior conviction, but also to
the determination that the conviction was for a serious felony for purposes of the three
strikes law: “[O]nly the bare fact of the prior conviction was at issue, because the prior
conviction (kidnapping) was a serious felony by definition under section 1192.7,
subdivision (c)(20).” (Epps, supra, 25 Cal.4th at p. 28.)
Defendant argues that the jury was required to find the elements of “numerous and
increasing in seriousness” and whether his performance on probation or parole had been
satisfactory. However, based on Thomas, supra, 91 Cal.App.4th 212, and Epps, supra,
25 Cal.4th 19, we conclude it was proper, notwithstanding Apprendi, supra, 530 U.S.
466, and Blakely, supra, 542 U.S. 296, for the trial court to determine that defendant’s

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prior convictions were numerous or of increasing seriousness and that defendant’s prior
performance on probation or parole was unsatisfactory. Just as it was not a violation of
Apprendi and Blakely for a court to determine that a prior conviction resulted in a prison
term (Thomas) or that the conviction was for a serious felony (Epps), then it was not
improper in this case for the trial court to determine those recidivist aggravating factors.
Those determinations are just as closely connected to “the more broadly framed issue of
‘recidivism’” (Thomas, supra, 91 Cal.App.4th at pp. 221-222) as were the determinations
which were held to come within the Apprendi exception in Thomas and Epps.
Because these facts arise out of the fact of a prior conviction and so are essentially
analogous to the fact of a prior conviction, constitutional considerations do not require
the matters be tried to a jury and found beyond a reasonable doubt. (Apprendi, supra,
530 U.S. at p. 488.) Also, as with a prior conviction, these facts can be established by a
review of the court records relating to the prior offense. (Almendarez-Torres v. United
States, supra, 523 U.S. at pp. 243-244.)
Furthermore, even if the trial court erred in relying on additional nonrecidivist
aggravating factors in imposing the aggravated term, ultimately the aggravated term was
properly based on several recidivist aggravating factors and on the trial court’s finding
that there were no factors in mitigation, and any error in relying on the additional
recidivist factors was harmless regardless of the standard of review applied to such errors.
Thus, in accordance with the analysis of Blakely, supra, 542 U.S. 296, the trial court was
not required to afford defendant the right to a jury trial before relying on recidivist

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aggravating factors supporting the imposition of the upper term. We therefore reject
defendant’s contention that Blakely, supra, and Cunningham, supra, 127 S.Ct. 856,
require that his sentence be reversed or remanded.
IV. DISPOSITION
We modify the sentence to strike the concurrent enhancement imposed pursuant to
section 667.6, subdivision (b). The trial court is directed to prepare an amended abstract
of judgment. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
KING
J.

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