THE PEOPLE, Plaintiff and Respondent, v. ANTOINE LAMAR WASHINGTON, Defendant and Appellant.
B296437
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Filed 3/9/21
CERTIFIED FOR PUBLICATION
Daviann L. Mitchell, Judge
The Law Offices of Michelle T. LiVecchi-Raufi and Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant.
INTRODUCTION
Los Angeles County Sheriff‘s deputies served a search warrant on a home in Lancaster. When they approached the home‘s garage, a deputy saw appellant Antoine Lamar Washington discard a firearm. Inside the garage, deputies found a sophisticated drug-sale operation. Following trial, a jury convicted appellant of possession of three controlled substances while armed with a firearm, possession of the three controlled substances for sale, possession of a firearm as a felon, and possession of ammunition as a felon. The trial court sentenced appellant to a total of five years and eight months in state prison. The sentence included a separate term -- whether consecutive or concurrent -- for each of appellant‘s offenses, except his possession of ammunition, for which the sentence was stayed under
Appellant now challenges his conviction and sentence. He asserts: (1) the evidence was insufficient to prove he had knowledge of the narcotics found in the garage; (2) the trial
We agree with appellant that his sentence violates Section 654‘s proscription against multiple punishments for a single act. Under People v. Jones (2012) 54 Cal.4th 350 (Jones) and its progeny, appellant‘s single possession of each item of contraband (methamphetamine, cocaine, cocaine base, and the firearm) constituted a single act, subject to only one punishment. Appellant‘s unstayed sentences for possessing controlled substances while armed, therefore, imposed additional punishment for the same acts punished by his sentences for possession of the substances for sale and the possession of a firearm by a felon. Accordingly, appellant‘s sentence was unauthorized. We therefore vacate the sentence and remand for resentencing. Finding no other error, we otherwise affirm.
A. The Information
In May 2018, the Los Angeles County District Attorney charged appellant with: unlawful possession of three controlled substances (methamphetamine, cocaine, and cocaine base) while armed with three firearms (a Springfield semi-automatic handgun, a Smith & Wesson semi-automatic handgun, and a Ruger revolver) (
B. The Prosecution‘s Evidence at Trial
On February 16, 2018, at about 1:30 a.m., Los Angeles County Sheriff‘s deputies served a search warrant on a house on Corkwood Avenue in Lancaster. Detective
As deputies approached the garage attached to the house, Detective Delling saw that the garage door was partially open. Although the garage was very dimly lit, Detective Delling used a light mounted on his firearm to illuminate it and was able to see multiple people inside. Two people were sitting on a couch at the back of the garage, and one person, later identified as appellant, was standing between a dresser and the couch. Detective Delling then saw appellant move across the garage, pull a small revolver out of the back pocket of his pants, and discard it.
All the occupants of the garage and home were then ordered out. Seven people were found in the house. One man, Samuel Farrell, was found in possession of cocaine base. One woman, Taraya Young, resided at the house, and her parents were also present when the deputies arrived.
A search of appellant found $451 in his pocket, in various denominations in no discernible order.4 Deputies also recovered a loaded Ruger revolver from the area where appellant was standing when Detective Delling saw him discard a revolver. At trial, Detective Delling was “[a] hundred percent” certain the recovered Ruger was the gun he had seen appellant discard.
Inside the garage, deputies found a sophisticated drug-sale operation. At trial, the court admitted the following not-to-scale diagram of the garage:
The dresser faced inward and was placed next to a headboard, creating a partially enclosed space. Detective
On top of the dresser were over $400 in cash, a container of marijuana, unused baggies, digital scales, and a container marked “TIPS,” containing $36. Inside the dresser‘s drawers, deputies found more money, two loaded firearms (Smith & Wesson and Springfield handguns), and large amounts of methamphetamine and cocaine base.5 Also found in the drawers was a notebook with pay-and-owe sheets. Testifying as an expert on drug-sale practices, Detective Delling explained a pay-and-owe sheet is how drug dealers keep track of payments for drug transactions. On the table within the counter area, deputies found two-way radios, radio scanners, and a video surveillance monitoring system that allowed those in the counter area to view anyone approaching the premises.
Along the east wall of the garage, among some “clutter” by the refrigerator and the headboard, deputies found more money and a baggie containing over 30 grams of cocaine. On top of a microwave (marked “M” in the diagram), deputies found a baggie containing over 22 grams of cocaine base, placed behind a lampshade and an unidentified object. At5
Based on a hypothetical mirroring of the facts of the case, Detective Delling opined at trial that the contraband found in the garage was possessed for sale. Detective Delling further opined that appellant possessed the drugs in the garage, based in part on appellant‘s possession of the revolver and the money. He explained that drug dealers in similar settings generally do not allow drug buyers to be armed. According to Detective Delling, it would not be “reasonable” for someone uninvolved in the operation to be armed and standing behind the “counter” containing the drugs and money, where he had seen appellant standing. He additionally opined that possessing $451 in various denominations in no discernible order indicated drug sales, suggesting that the person was collecting the money over time, as he was making sales.
At the conclusion of the People‘s case, appellant‘s counsel moved for a judgment of acquittal, arguing there was insufficient evidence to establish that appellant possessed or knew about the drugs or guns in the garage. The trial court denied the motion. The defense presented no testimony.
In their closing argument, the People argued primarily that the circumstances surrounding appellant‘s presence at the garage showed he was involved in the drug-sale operation. They emphasized the obvious nature of the operation, including the drugs and paraphernalia found throughout the garage. They also highlighted appellant‘s initial location behind the counter, the money in his pocket, his being armed, and Detective Delling‘s testimony that these circumstances indicated appellant was involved in the operation. Regarding the charges of possession of firearms by a felon, the People stated, “[I]f you believe the deputy that he saw a gun coming out of [appellant‘s] pocket, [he‘s] guilty [of] felon with a firearm . . . [. E]ven if you don‘t believe the deputy . . . but you still believe that [appellant] knew about the guns, then he‘s still guilty of felon with a firearm.”
Appellant‘s counsel argued the evidence failed to show that appellant knew about any of the hard drugs or guns in the garage. She noted most of the drugs and guns were in the dresser drawers, and contended the drugs outside the drawers were not within appellant‘s sight, especially given the poor lighting conditions before the deputies arrived. Counsel claimed that because of the poor lighting in the garage, Detective Delling‘s observations through the partially open garage door were unreliable. She emphasized there was no evidence appellant had ever been at the location before and no evidence disclosing when he had
D. The Jury‘s Verdict
Following trial, the jury found appellant guilty as charged of: unlawful possession of methamphetamine, cocaine, and cocaine base while armed with the Ruger revolver (Counts 9, 10, & 12), possession of the same substances for sale (Counts 17, 18, & 20), possession of the Ruger revolver by a felon (Count 31), and possession of ammunition by a felon (Count 36). The jury found appellant not guilty of all charges relating to his alleged possession of the Springfield and Smith & Wesson handguns found in the dresser drawers (Counts 1, 2, 4-6, 8, 32, & 33).
E. The Trial Court‘s Sentence
The trial court sentenced appellant to a total of five years and eight months in state prison, consisting of the upper term of four years on Count 9 (unlawful possession of methamphetamine while armed), a one-year consecutive term on Count 17 (possession of cocaine base for sale), and an eight-month consecutive term on Count 31 (possession of a firearm by a felon). The court imposed concurrent terms on Counts 10, 12, 18, and 20, and stayed the sentence for Count 36 under Section 654. It further ordered appellant to pay a $1,500 restitution fine and $560 in statutory assessments.
DISCUSSION
A. The Admission of Appellant‘s Prior Conviction
1. Background
Before trial, the People notified the court of their intent to introduce evidence of appellant‘s 2004 conviction for possession of cocaine base for sale to prove appellant‘s “intent” and “lack of mistake.” Appellant objected that admitting the conviction would be unduly prejudicial. After hearing argument, the trial court found the prior conviction was relevant to appellant‘s “knowledge, intent, and lack of mistake,” and that its probative value outweighed its prejudicial effect. However, the court ruled that only the fact of appellant‘s conviction would be admitted. At trial, appellant‘s counsel stipulated to appellant‘s prior conviction.
The court instructed the jury it could consider appellant‘s 2004 conviction only in deciding whether he knew one of the substances in the garage was cocaine base, whether he had the intent to sell a controlled substance, and whether his actions were the result of mistake or accident. It emphasized the jury was not to consider this evidence for
In closing argument, the People occasionally referenced appellant‘s prior conviction as showing that he “would know what drugs are” and that the substances in the garage were controlled substances. The People also briefly suggested that given the garage was essentially a drug “store,” appellant‘s prior conviction meant he would have known the drugs were in the dresser drawers. In appellant‘s closing argument, his counsel stated that his prior conviction was about 15 years earlier and that the jury could not convict based on “the fact that we‘ve admitted that he has a past, and that it is in the same kind of category of crimes.” She explained that the jury could consider appellant‘s prior conviction “to see if you think that it shows that he knows what was going on more than maybe you or I would,” but emphasized that the conviction “doesn‘t mean that he‘s just automatically guilty of all the charges.”
2. Analysis
Appellant contends the trial court prejudicially erred by admitting evidence of his prior conviction for possession for sale of cocaine base. He argues this evidence should have been excluded under either
We review state law challenges to a trial court‘s evidentiary rulings for abuse of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) “Specifically, we will not disturb the trial court‘s ruling ‘except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.‘” (Ibid.) A miscarriage of justice results only if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
We conclude the trial court did not abuse its discretion in admitting evidence of appellant‘s prior conviction for possession for sale of cocaine base. At the very least, the evidence was relevant to show that if appellant was aware of the substances in the garage, he knew that one of them was cocaine base. “To obtain a conviction for possession of a controlled substance for sale, the prosecution must prove that the defendant had knowledge of both the presence of the contraband and its illegal character.” (Ghebretensae, supra, 222 Cal.App.4th at 754 citing People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) “[I]n narcotics prosecutions, evidence of prior drug convictions is relevant to prove knowledge of the narcotic nature of the substance. [Citation.] On this theory, the only necessary similarity is that the controlled substance be the same.” (People v. Hendrix (2013) 214 Cal.App.4th 216, 241.) Accordingly, appellant‘s prior conviction for possession for sale of cocaine base was relevant to prove his ability to recognize cocaine base in the garage.
Appellant contends the prior conviction was nevertheless inadmissible to prove his knowledge of the narcotic nature of the substances in the garage because: (1) his sole defense at trial was that he had no knowledge of the presence of the substances, making proof of his familiarity with cocaine base immaterial; and (2) his prior conviction was too remote to be probative. We disagree.
Nor did
The evidence of appellant‘s prior conviction was not particularly inflammatory. The jury heard nothing about the circumstances of the prior offense, and the mere fact of a decade-and-a-half-old conviction for possession of drugs for sale is hardly incendiary when compared to appellant‘s
Moreover, even had we found admission of appellant‘s prior conviction erroneous, we would deem any error harmless. As noted, the mere existence of appellant‘s 15-year-old conviction for possession of drugs for sale was unlikely to inflame the jury against him. Indeed, that the jury acquitted appellant of all charges involving the firearms in the dresser drawers suggested that far from being inflamed by evidence of his prior conviction, the jury carefully considered the evidence and charges as to each7
Furthermore, the trial court instructed the jury on the limited purpose of the evidence, advising jurors that they were not to infer appellant had a criminal disposition and emphasizing that the People were required to prove each element of the charged offenses beyond a reasonable doubt,
Pointing to his acquittal of the charges relating to the firearms in the dresser drawers, appellant contends the only difference between the evidence supporting those charges and that supporting the drug possession charges was his prior conviction for possession of drugs for sale. He argues this shows the jury relied on his prior conviction to conclude he knew about the drugs in the garage. Appellant overlooks another, more significant difference between the drugs and the firearms. As we detail below in discussing appellant‘s sufficiency challenge, circumstantial evidence suggested appellant was involved in the drug-sale operation. It was eminently reasonable to infer that as a seller, appellant was aware of the drugs in the garage. But the jury also heard evidence suggesting many other possible sellers at the8
B. The Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to support his drug-related convictions and that the trial court erred in denying his motion for a judgment of acquittal. “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although
As noted, to prove the possession of drugs for sale, the prosecution was required to show, among other things, that appellant knew of both the presence of the substances and their narcotic character. (Ghebretensae, supra, 222 Cal.App.4th at 754; Meza, supra, 38 Cal.App.4th at 1745-1746.) Appellant argues there was insufficient evidence of his knowledge that the narcotics were present in the garage. He notes that most of the drugs in the garage were in the dresser drawers, that lines of view to the drugs not in drawers were somewhat obstructed (the cocaine base on the microwave was behind a lampshade and another item, and the cocaine near the refrigerator was among “clutter“), and that the garage was dimly lit when the deputies arrived.
Initially, given that appellant was able to move around the garage, as Detective Delling witnessed, the jury could reasonably infer he was able to see the cocaine and cocaine base outside the dresser drawers, despite the poor lighting and partially obstructed views. More important, however, the People presented significant circumstantial evidence that the garage was set up as a narcotics store, and that appellant was one of the sellers, thus necessarily aware of the drugs. It is undisputed that the deputies arrested appellant in the midst of an obvious drug-sale operation. An inward-facing dresser in the garage contained firearms and most of the hard drugs, and was placed next to a headboard so as to form a makeshift checkout counter. On top of the dresser were marijuana, unused baggies, digital scales, and even a tip jar that contained money. On a table within the counter area were two-way radios and scanners and a video surveillance monitoring system that allowed those in the counter area to view anyone approaching the premises. As deputies approached the location, a lookout alerted the occupants of the house and garage to their presence.
The evidence relating to appellant suggested he was not merely an intended customer or a visitor who happened to be at the garage. Detective Delling first saw appellant standing behind the dresser. On appeal, it is undisputed that appellant was armed and had $451 in his pocket. The money was in various denominations, including many small bills, in no discernible order. Testifying as an expert on drug-sale practices, Detective Delling explained that drug dealers in similar settings generally do not permit customers to be armed, and opined it would be unlikely for someone not involved in the operation to be armed and standing behind the makeshift counter, where the drugs and much of the
Appellant contends neither the money nor the gun was sufficient to support that he was involved in the drug-sale operation. As to the gun, he argues it did not rule out the possibilities that (1) unlike other drug-sale operations, this operation permitted visitors to bring guns, or (2) his gun was concealed, and the sellers were not aware of its presence. But the jury was entitled to reject these proposed interpretations of the evidence (Kraft, supra, 23 Cal.4th at 1053-1054); indeed, the jury could reasonably have concluded that no uninvolved person, armed or otherwise, would be allowed behind the counter at a sophisticated drug-sale operation.
Appellant cites People v. Antista (1954) 129 Cal.App.2d 47 (Antista) and People v. Glass (1975) 44 Cal.App.3d 772 (Glass) in support of his position. Each is distinguishable.
In Glass, the court reversed a conviction for possession of drugs for sale, where officers found the drugs under a couch in the living room of the house in which the defendant was found. (Glass, supra, 44 Cal.App.3d at 774-775.) The defendant, who neither owned nor resided at the house, was found lying in bed in the bedroom. (Id. at 775, 776.) The court stated this evidence established “no more than an opportunity of access to a place where narcotics were found . . . .” (Id. at 777.) While the defendant had $270 in small bills in his wallet, the court determined the money lacked probative value absent a showing the defendant had been unemployed. (Id. at 775, 777.)
In Antista, the court reversed a conviction for simple possession where officers found marijuana in both the living room and an unused bedroom of the defendant‘s apartment. (Antista, supra, 129 Cal.App.2d at 48.) The defendant was not home at the time the drugs were found, but a friend who was a known drug user had been staying in the apartment for 10 days before the search and was in the home at the time police arrived. (Id. at 48-49.) The defendant had no known history of drug use, was a nonsmoker, and could not breathe deeply due to a medical condition. (Id. at 48.) The court stated, “if it is established that one accused of possession returned to his apartment . . . and found it occupied by a user of narcotics, and a narcotic was found in it, and if there is no evidence that it was there before that time, the fact of its presence, without any other fact or
In both Glass and Antista, the result reflected the straightforward proposition that the prosecution must show something more than the mere presence of controlled substances in the place where the defendant is found or to which he has access. The People have indeed shown more here. The evidence established that appellant was at the location of an active drug-sale operation, in an area where only a seller would typically be found, carrying an item -- the gun -- that only a seller would typically carry at the location, and possessing cash in an amount and composition typically indicative of drug sales.9 Nothing more was required to support the jury‘s conclusion that appellant was involved in the sale of the drugs.
Appellant does not dispute that if he was one of the sellers, he must have known of the drugs present in the
C. The Sealed Portion of the Search Warrant Affidavit
1. Background
A portion of the affidavit accompanying the search warrant in this case was filed under seal. Before trial, appellant moved to unseal, quash, and traverse the search warrant and to suppress all evidence found during the search of the garage. After conducting an in camera review under the procedures of People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), the court denied appellant‘s requests. The Court found the relevant information had been properly sealed, and that continued sealing was necessary to protect the identity of confidential informant(s). It further found the public and sealed materials did not support the request to quash and traverse the warrant.
2. Analysis
Appellant asks us to review the sealed portion of the search warrant affidavit and determine whether the trial court erred in denying his motions to unseal that portion and to quash and traverse the search warrant. The Attorney General does not oppose his request for review.
Any part of a search warrant affidavit may be sealed if necessary to protect the identity of a confidential informant. (
If the court determines any portion of the affidavit should remain sealed, it then proceeds to the second step, which “requires the court to determine whether ‘there is a reasonable probability the defendant would prevail’ on his suppression motion.” (People v. Heslington (2011) 195 Cal.App.4th 947, 957.) If the defendant moved to traverse the warrant, the court must determine whether the defendant‘s general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the affidavit. (Hobbs, supra, 7 Cal.4th at 974Ibid.)
If the defendant moved to quash the warrant, the court must evaluate the affidavit‘s showing of probable cause under a similar procedure. (Hobbs, supra, 7 Cal.4th at 975Ibid.) “[T]he warrant can be upset only if the affidavit fails as a matter of law . . . to set forth sufficient competent evidence supportive of the magistrate‘s finding of probable cause . . . .” (Ibid.)
Having reviewed the sealed portion of the search warrant affidavit, we find no error in the trial court‘s denial of appellant‘s motions. The trial court did not abuse its discretion in determining that valid grounds supported maintaining the confidentiality of information in the sealed portion, and that the extent of the sealing was necessary for that purpose. Moreover, it is not reasonably probable that appellant would have prevailed on his motion to traverse or quash the warrant. Nothing in the affidavit leads us to suspect any material misrepresentations or omissions were made. And under the totality of the circumstances, there was a fair probability that execution of the warrant would lead to contraband or evidence of a crime at the location to be searched.
D. The Separate Sentences for Appellant‘s Drug- and Firearm-Related Convictions
Appellant contends that his separate sentences for possession of methamphetamine, cocaine, and cocaine base for sale, possession of each of those substances while armed, and possession of a firearm by a felon, are precluded by Section 654.
1. Governing Principles
In Jones, supra, 54 Cal.4th at 359-360, our Supreme Court clarified that the inquiry into whether a defendant‘s conduct reflects a single intent or objective is relevant only after it has been determined that a single act did not complete each of the relevant crimes. The defendant there had been sentenced concurrently for three crimes: “possession of a firearm by a felon,” “carrying a readily accessible concealed and unregistered firearm,” and “carrying an unregistered loaded firearm in public.” (Id. at 352.) All three offenses were committed on a single occasion, when the defendant, a convicted felon, carried in his car a loaded revolver that was not registered to him. (Ibid.) Reversing the imposition of separate punishments, our Supreme Court held that “a single possession or carrying of a single firearm on a single occasion may be punished only once under [S]ection 654.”10 (Id. at 357.)
Our Supreme Court in Jones considered the Attorney General‘s alternative argument that the defendant had committed his offenses through separate acts. The Attorney General noted the defendant had told the police he had obtained the gun three days before it was found in his car, and had kept it at his grandmother‘s house. (Jones, supra, 54 Cal.4th at 359.) Rejecting this argument, the court noted that the information had alleged defendant committed all three crimes on or about the day he was arrested, that the verdicts had found defendant guilty as charged, and that the prosecutor‘s closing argument based defendant‘s guilt on his possessing the gun when arrested. (Ibid.) Thus, the court concluded the record established “that the jury convicted 10
2. Analysis
a. Possession of the Drugs
Appellant‘s possession of each controlled substance constituted a single physical act that completed two offenses: (1) possession of the relevant substance for sale, and (2) possession of the relevant substance while armed. (See Corpening, supra, 2 Cal.5th at 311; Jones, supra, 54 Cal.4th at 357-358.) Accordingly, appellant may not receive more than one punishment for the possession of each substance. (See Corpening, supra, at 311; Jones, supra, at 357; cf. People v. Buchanan (2016) 248 Cal.App.4th 603, 613 (Buchanan) [“When police officers discover a defendant in an automobile in possession of a controlled substance, [S]ection 654 applies to preclude separate punishments for the same
In his initial appellate brief, the Attorney General contended appellant could receive two punishments for the possession of each controlled substance (for sale and while armed) because he “harbored an independent criminal objective when he possessed the revolver.” After we sent the parties a letter directing their attention to Jones and its progeny, the Attorney General filed a supplemental brief, conceding that appellant may receive only one punishment for the possession of each controlled substance (whether for sale or while armed). We accept the Attorney General‘s concession. Our Supreme Court in Jones refused to “divine what objective or objectives the defendant might have had in possessing [an item]” in a “single-act case.” (Jones, supra, 54 Cal.4th at 360.) Thus, under Jones, where a single physical act completes two crimes, the defendant may not be punished more than once for that act, regardless of his objective. (Id. at 359; Corpening, supra, 2 Cal.5th at 311 [“Only if we conclude that the case involves more than a single act . . . do we then consider whether that course of conduct reflects a single ‘intent and objective’ or multiple intents and objectives“].) Appellant may not be punished more than once for the possession of each controlled substance.
b. Possession of the Firearm
The jury found that appellant possessed a single firearm (the revolver) when deputies found him in the garage. This single physical act completed multiple crimes: possession of each controlled substance while armed (a total of three counts), and possession of a firearm by a felon. Under Jones, appellant may receive only one punishment for the possession of the firearm.11 (See Corpening, supra, 2 Cal.5th at 311; Jones, supra, 54 Cal.4th at 357; cf. Buchanan, supra, 248 Cal.App.4th at 613-617 [where defendant possessed one firearm on single occasion,
The Attorney General raises two arguments in support of the contention that
Second, citing People v. Vang (2010) 184 Cal.App.4th 912 (Vang), the Attorney General argues the crimes of possession of controlled substances while armed and possession of a firearm by a felon address distinct dangers. Decided some two years before Jones, Vang applied this reasoning to hold that
Accordingly, we vacate appellant‘s sentence and remand for resentencing. We do not constrain the trial court‘s discretion in fashioning an appropriate sentence in accordance with
E. Constitutional Challenge to Assessments and Restitution Fine
Appellant challenges the trial court‘s imposition of the assessments and restitution fine. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, he argues the court violated his right to due process by imposing them without determining his ability to pay.
Before the trial court, appellant neither objected to the imposition of these financial obligations nor requested a hearing on his inability to pay. We agree with our colleagues in Division Eight that a failure to object in the trial court forfeits this issue on appeal. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155; accord, People v. Keene (2019) 43 Cal.App.5th 861.) Accordingly, we do not consider appellant‘s contentions. We observe, however, that appellant remains free to raise his claims in this regard before the trial court on remand.
DISPOSITION
The sentence is vacated and the matter remanded for a new sentencing hearing consistent with this opinion. The judgment is otherwise affirmed.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.