People v. Fletcher CA3 ( 2021 )

Filed 1/12/21 P. v. Fletcher CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C087837
v. (Super. Ct. No. 15F02336)
KYLE BILLY FLETCHER,
Defendant and Appellant.
A jury convicted defendant Kyle Billy Fletcher of first degree murder, possessing
methamphetamine for sale, and transporting methamphetamine for sale. The jury further
found that defendant personally used a deadly or dangerous weapon (a belt) to commit
the murder. The trial court sentenced defendant to 25 years to life for the murder, a
consecutive one year for use of a deadly or dangerous weapon, a consecutive three years
for the transportation offense, and two years (stayed) for the possession offense. The trial
court also ordered defendant to pay various fines, fees and assessments.
Defendant now contends (1) the belt found around the naked and lifeless victim’s
neck was part of a sex act gone wrong and thus there is insufficient evidence defendant
committed first degree murder; (2) the prosecutor utilized an inappropriate analogy
during closing argument that reduced the People’s burden of proof, and defendant’s trial
counsel was ineffective in failing to object; and (3) because the sentence on the
possession conviction was stayed, the criminal laboratory analysis fee and associated
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penalties and assessments imposed on that conviction must also be stayed. We disagree
with the first two contentions but agree with the third, as do the People. We will affirm
the judgment except for the criminal laboratory analysis fee and associated penalties and
assessments imposed on the possession conviction and remand the matter to the trial
court with directions to stay the criminal laboratory analysis fee and to recalculate and
stay the associated penalties and assessments in a manner consistent with this opinion.
BACKGROUND
A
Defendant had given the victim Daniel Aiello a body piercing and for years
thereafter would visit Aiello to “hang out and get high” and to engage in certain sexual
acts for which Aiello paid defendant, such as urinating into Aiello’s mouth, holding a
chain leash around Aiello’s neck, walking Aiello like a dog, beating Aiello, and walking
on Aiello’s back while Aiello would “hump” the ground.
When Aiello started a moped business, he moved into a room in the rear of the
shop and invited defendant to be a co-owner. Defendant provided the tools, the
surveillance system, and his time and knowledge. However, the relationship became
increasingly strained. Aiello accused defendant in text messages of being a lazy,
unreliable, shady and incompetent business partner while conceding that defendant was
physically stunning and of unsurpassed beauty. In other text messages Aiello accused
defendant of owing him money and misusing business funds.
A text message sent by Aiello in March 2015 threatened that Aiello would contact
defendant’s probation officer. The next month Aiello told defendant he had filed a police
report alleging defendant had committed financial crimes.
Then, in a series of text messages the day before his death, Aiello demanded that
defendant come to the shop and return money and property belonging to the business.
That afternoon, Aiello told his upstairs neighbor he was going out of town and if the
neighbor saw defendant at the business, the neighbor had permission to call 911. Around
2
3:00 a.m. on April 15, 2015, the upstairs neighbor heard loud noises below her apartment
that sounded like a struggle. The neighbor saw a car outside her window that she
associated with defendant, which alarmed her given what Aiello had mentioned to her
earlier. The neighbor called Aiello’s cell phone, and when he did not answer, the
neighbor called 911.
Surveillance footage captured defendant arriving in a vehicle and knocking on the
door of the moped shop around 1:45 a.m. on April 15, 2015. The footage showed that for
about another hour, defendant and Aiello were inside the shop together, moving between
the back room and the front of the shop. At times defendant appeared to be looking for
something with his cell phone flashlight.
According to an officer who testified at trial, Aiello last appeared in the
surveillance footage at 2:58 a.m. Between 2:58 a.m. and 3:09 a.m., defendant came and
went and did not appear to be doing anything different than he had done before.
Defendant next appeared in the footage at 3:17 a.m., a few moments after phone records
indicated Aiello’s upstairs neighbor called Aiello’s phone. The footage captured
defendant apparently talking on a cell phone while holding a second cell phone.
The video footage ended at 3:21 a.m. when defendant disconnected the surveillance
equipment, which he claimed was his property.
Police arrived at 3:30 a.m. and saw defendant walking out of the moped shop with
a television. Defendant said he was a partial owner of the business, he was just removing
some items, and his partner was in the back. Police found Aiello in the back room, naked
and face down, with a belt around his neck. The belt was snug around Aiello’s neck but
it was not buckled. A woman was with defendant when the police arrived and she had
Aiello’s cell phone. Police found photographs of Aiello on defendant’s cell phone, along
with a video of Aiello naked on all fours with a person urinating into his mouth. Inside
the car defendant had arrived in, police found 45 grams of methamphetamine in multiple
packages.
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B
Defendant testified to the following version of events at trial. He said he went to
the moped shop with his girlfriend on the morning in question, planning to show Aiello
that he still had the money Aiello had given him and had not misused it. He also planned
to end his relationship with Aiello and retrieve some of his personal property from the
shop, including the surveillance equipment and television.
According to defendant, he showed the money to Aiello and Aiello said not to
worry about it. Defendant and Aiello then looked around the shop for the electronic
equipment the pair had purchased. But Aiello tried to get defendant to entertain his
sexual fantasies and to get high. Over the next hour, every time Aiello went to the back
room, he consumed a dose of the drug “GHB.”
Defendant testified that at some point he went to the back room and found Aiello
naked with a belt around his neck. Aiello handed the end of the belt to defendant and
said “be my master.” Defendant walked Aiello like a dog, and when Aiello got down on
his stomach, defendant let go of the belt and walked on Aiello’s back. Defendant said he
and Aiello made a lot of noise. According to defendant, he stood on Aiello’s shoulders
while Aiello humped the floor; then Aiello sat up like a dog and handed the belt back to
defendant while Aiello masturbated himself. Defendant said Aiello was leaning forward
on his knees while defendant held the belt.
Defendant claimed that after a little bit of time, Aiello jerked and thrusted.
Defendant set him down and Aiello began to snore. According to defendant, this was not
uncommon; many times before, after consuming narcotics, Aiello would pass out and
snore. Believing Aiello was asleep, defendant went about the shop picking up the items
he had come for, including the surveillance equipment and television. Defendant said his
girlfriend entered the shop while Aiello was asleep to help defendant look for his
personal items by illuminating parts of the shop with Aiello’s cell phone light. Defendant
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explained that his own cell phone light would not turn on due to a low battery. Defendant
insisted he did not intend to kill Aiello.
C
Defendant admitted at trial that he never told police the version of events he
offered at trial. Instead, defendant said he told police scenarios of what could have
happened but did not actually happen because he was embarrassed and scared.
When the prosecutor asked him why the version he provided at trial was more
embarrassing than the information he provided to police, defendant said he did not think
anybody would believe him. The prosecutor also asked defendant why he originally
denied knowing that Aiello engaged in auto-erotic asphyxiation. Defendant replied that
he did not remember and that he was not too familiar with those words.
D
Dr. Brian Nagao, the forensic pathologist who performed Aiello’s autopsy, said
there were ligature marks on Aiello’s neck consistent with strangulation, and
hemorrhages on Aiello’s back consistent with someone standing on his back and applying
pressure while pulling on a ligature around the neck. Dr. Nagao said it would take four to
six minutes of continuous neck pressure to cause death by asphyxia, but the victim would
typically become unconscious after approximately 15 seconds of strangulation. Although
Aiello’s blood contained methamphetamine and GHB, both of which could cause death,
Dr. Nagao opined that Aiello died from strangulation. On cross-examination, Dr. Nagao
agreed that sometimes a person can die accidentally when using a ligature to compress
their neck while masturbating.
Defendant’s expert forensic pathologist, Dr. Curtis Rollins, testified that while
ligature strangulation was the cause of death, the methamphetamine and GHB in Aiello’s
blood were significant contributing factors. He said death by ligature strangulation
occurs within two to three minutes.
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Dr. Rollins explained that a person may develop a tolerance to auto-erotic
asphyxiation such that it takes longer to feel the desired arousal effect. He said effective
auto-erotic asphyxiation involves a release mechanism so that if the person loses
consciousness they do not die. On cross-examination, Dr. Rollins agreed that a person
pulling against a belt tied around their neck while on their knees, without more, could not
produce the injuries the victim had to his neck.
E
In closing argument, the prosecutor stated:
“Now, [first] degree murder is outlined in the jury instructions. It explains that all
murder that is perpetrated with willful -- that is willful, deliberate, and premeditation is
that of [first] degree. [¶] . . . [¶] And deliberate means formed or arrived at or
determined upon as a result of careful thought and weighing of consideration for and
against the proposed course of action. [¶] . . . [¶] Now, it will go on to tell you that it’s
not measured in units of time. The time of reflection will vary with different people
under varying circumstances. . . . The true test is not duration of time but the extent of
the reflection. And it’s important to remember that a cold, calculated judgment can be
formed in a short period of time. That is what the instructions read. Well, what does that
mean? It means this: I don’t think that originally when the defendant went to Mr.
Aiello’s house -- when he went to his shop and when he drove from Chico, I don’t think
he thought, [‘]You know, what? I am going to stop by and kill Mr. Aiello.’ He probably
thought, ‘I am going to confront him about this police report and try to smooth things out
because I ain’t going back to jail. That’s not happening.’
“[¶] . . . [¶]
“So at some point . . . defendant made the conscious decision to kill Mr. Aiello.
. . . [W]e know . . . just how Mr. Aiello died. He died over a period of time, several
minutes, with that belt being pulled around his neck.
“[¶] . . . [¶]
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“Now . . . measuring units of time and talking about duration, you know, it’s -- it’s
difficult sometimes to talk about premeditation and deliberation. But not time -- but the
reflection is the important part. And so what I’m going to give you is an analogy. You
are going to hear a couple of analogies.
“So I have committed a crime in my life. I have run a red light; okay? . . . I was
driving, and I knew this light was a very long cycle, and I knew that I was going to be
sitting there for a long time. And so the light turned yellow, and I immediately started
doing the time/distance calculations and going, ‘I’m not going to make this, but I can
make it before any other car comes from their green light.[’]
“And so I look to see how many cars are on each side, and I keep my foot on the
accelerator. I look in my rearview mirror to make sure that there is no cop behind me.
And I look forward and scan to see if there is any cops in front of me, and then I pass
through and I get through the intersection. And I immediately say, ‘Darn it. I shouldn’t
have done that. That was a bad idea.’
“But that red light running was very short in duration, so it was a cold, calculated
decision because I did a lot of things. I checked my rear view mirror for cops. I checked
in front of me for officers. I looked both ways to see if it was safe for me to pass through
it. And I make the conscious decision to keep my foot on the accelerator and not ease off
and just brake like I should.
“I can say I was a younger man and I no longer do that, but it’s a good analogy on
the reflection that goes in in making a very, very horrible decision.
“And that’s what the defendant did. When he put his foot on the back of Mr.
Aiello and pulled and pulled and pulled, it didn’t even take the seconds that it took a light
to turn red. It took minutes for this man to die. And so he at any time could have taken
that foot off the accelerator, but he didn’t. That’s why this is [first] degree murder.”
Defense counsel countered in closing argument that defendant displayed criminal
negligence and therefore was guilty of involuntary manslaughter but not murder.
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Disagreeing with the prosecutor’s red-light analogy, defense counsel argued Aiello died
because of a sex act that went sour; defendant did not intend to kill him.
The trial court read to the jury CALCRIM No. 520, which explained that if the
jury found defendant committed murder, “it [was] murder of the second degree, unless
the People . . . proved beyond a reasonable doubt that it [was] murder of the first degree
as defined in [i]nstruction 521.”
The trial court then read to the jury CALCRIM No. 521, which provides, in
relevant part:
“The defendant is guilty of first degree murder if the People have proved that he
acted willfully, deliberately, and with premeditation. . . .
“. . . The length of time the person spends considering whether to kill does not
alone determine whether the killing is deliberate and premeditated. The amount of time
required for deliberation and premeditation may vary from person to person and
according to the circumstances. [¶] A decision to kill made rashly, impulsively, or
without careful consideration is not deliberate and premeditated. On the other hand, a
cold, calculated decision to kill can be reached quickly. The test is the extent of the
reflection, not the length of time.”
F
The jury found defendant guilty of first degree murder (Pen. Code, § 187 -- count
one), possessing methamphetamine for sale (Health & Saf. Code, § 11378 -- count two),
and transporting methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a) --
count three). The jury further found that defendant personally used a deadly or
dangerous weapon (a belt) to commit the murder within the meaning of Penal Code
section 12022, subdivision (b)(1).
The trial court sentenced defendant to 25 years to life for the murder, plus a
consecutive one year for use of a deadly or dangerous weapon. The trial court also
imposed a consecutive three years on the count three conviction for transporting
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methamphetamine for sale, and two years on the count two conviction for possessing
methamphetamine for sale (stayed pursuant to Penal Code section 654).
The trial court imposed various fines, fees and assessments, including a $50
laboratory fee for each of the two drug convictions (for a total of $100), and by reference
to a probation officer’s calculations in a presentencing memorandum, $260 in further
assessments, some of which were based on the laboratory fees.
DISCUSSION
I
Defendant contends there is insufficient evidence he committed first degree
murder. Citing People v. Anderson (1968) 70 Cal.2d 15, he claims there is not enough
evidence he planned the murder or had a motive to kill, or that the manner of killing
showed a preconceived design.
A
“A verdict of deliberate and premeditated first degree murder requires more than a
showing of intent to kill. ([Pen. Code, ]§ 189.) ‘Deliberation’ refers to careful weighing
of considerations in forming a course of action; ‘premeditation’ means thought over in
advance. [Citations.] ‘The process of premeditation and deliberation does not require
any extended period of time. “The true test is not the duration of time as much as it is the
extent of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .” [Citations.]’ [Citation.]” (People v.
Koontz (2002) 27 Cal.4th 1041, 1080 (Koontz).)
As the California Supreme Court reiterated in Koontz, the court in Anderson
identified three factors commonly present in cases of premeditated murder: (1) facts
about what defendant did prior to the killing which show planning activity; (2) facts
about the defendant’s prior relationship and/or conduct with the victim from which the
jury could reasonably infer a motive to kill the victim; (3) and facts about the manner of
killing from which a jury could infer a preconceived design. (Koontz, supra, 27 Cal.4th
9
at p. 1081.) The Supreme Court cautioned, however, that unreflective reliance on
Anderson for a definition of premeditation is inappropriate. “ ‘The Anderson factors,
while helpful for purposes of review, are not a sine qua non to finding first degree
premeditated murder, nor are they exclusive.’ ” (Koontz, supra, 27 Cal.4th at p. 1081.)
“ ‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence -- that is, evidence that is reasonable,
credible, and of solid value -- from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.]’ (People v. Lindberg (2008)
45 Cal.4th 1, 27.)” (People v. Battle (2011) 198 Cal.App.4th 50, 61-62 (Battle).)
“A judgment challenged on appeal is presumed correct, and it is the appellant’s
burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant
claims insufficiency of the evidence on a particular element of the crime of which he was
convicted, we presume the evidence of that element was sufficient, and the defendant
bears the burden of convincing us otherwise. To do so, the defendant must present his
case to us in a manner consistent with the substantial evidence standard of review. That
is, the defendant must set forth in his opening brief all of the material evidence on the
disputed element in the light most favorable to the prosecution, and then must persuade
us that that evidence cannot reasonably support the jury’s verdict. [Citation.]” (Battle,
supra, 198 Cal.App.4th at p. 62.)
B
Defendant acknowledges premeditation and deliberation can be inferred where
there is evidence a defendant uses a ligature to apply constant force to the neck of a
victim for many minutes. But he insists the evidence refutes such an inference because
Aiello was strangled by a belt looped around his neck like a noose which remained tight
due to a ratchet effect even when the other end of the belt was released.
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Defendant does not provide citations to the record to support his noose and
ratchet-effect theory. And we found no support in our own review of the record.
Although a detective described the belt as “fairly tight” and “snug,” it was not described
as a noose with a ratchet effect. Because the factual underpinnings of defendant’s
argument are unsupported, the argument fails.
Rather, based on our review of the record, we conclude the jury reasonably could
have determined Aiello died because defendant stood on Aiello’s back and forcefully and
continuously pulled on the belt tied around Aiello’s neck for several minutes. There is
substantial evidence of premeditation and deliberation, and therefore substantial evidence
for the jury’s first degree murder finding.
The record indicates defendant had motive because Aiello was accusing him of
criminal activity and was demanding that defendant return money and property. As for
the manner of killing, defendant admitted providing a different version of events at trial.
But both parties’ experts testified Aiello died from strangulation, and they agreed death
would have resulted after several minutes of continued strangulation. Given that
evidence, the jury reasonably could have found that defendant had ample time to consider
the deadly nature of his conduct as he pulled the belt tightly against Aiello’s neck. (See
People v. Hovarter (2008) 44 Cal.4th 983, 1019-1020 [evidence that the victim “was
strangled with a rope and that her death from asphyxiation would have taken between
five and eight minutes” permitted a rational factfinder to infer that the manner of killing
demonstrated deliberation, as such a “prolonged manner of taking a person’s life, which
requires an offender to apply constant force to the neck of the victim, affords ample time
for the offender to consider the nature of his deadly act”]; People v. Davis (1995)
10 Cal.4th 463, 510 [sufficient evidence of premeditation and deliberation for first degree
murder where, among other facts, defendant strangled the victim for “over a period of up
to five minutes” (italics omitted)].)
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II
Defendant next asserts the prosecutor’s traffic-light analogy misstated the standard
required for premeditation and deliberation, reducing the People’s burden of proof. He
further argues his trial counsel was ineffective in failing to object.
“ ‘[T]o establish reversible prosecutorial misconduct a defendant must show that
the prosecutor used “ ‘deceptive or reprehensible methods’ ” and that it is reasonably
probable that, without such misconduct, an outcome more favorable to the defendant
would have resulted. [Citation]’ . . . A prosecutor has wide latitude during closing
argument to make assertions of common knowledge or use illustrations based on
common experience. [Citations.] But in relating the jury’s task to a more common
experience, the prosecutor ‘must not imply that the task is less rigorous than the law
requires.’ ” (People v. Wang (2020) 46 Cal.App.5th 1055, 1085 (Wang).)
“ ‘When attacking the prosecutor’s remarks to the jury, the defendant must show
that, “[i]n the context of the whole argument and the instructions” [citation], there was “a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly
infer’ that the jury drew the most damaging rather than the least damaging meaning from
the prosecutor’s statements.” ’ [Citations.]” (Wang, supra, 46 Cal.App.5th at p. 1085.)
In Wang, the Second Appellate District, Division Two, confronted a scenario very
similar to the instant case and ruled that the prosecutor’s closing argument was not
improper. In closing argument in a first degree murder trial, the prosecutor “illustrate[d]
the elements of premeditation and deliberation by analogizing them to a driver’s
decisionmaking process in choosing whether to drive through a yellow traffic light or
stop suddenly. The prosecutor explained, ‘You have a decision to make, “do I step on the
accelerator and fly through this intersection because I can’t wait, or do I slam on my
brakes and stop?” You have to decide, and when you’re making that decision -- do I go
or do I stop -- you’re evaluating things. “If I go, are there pedestrians? Is there a cop
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around? Am I going to get a ticket?” . . . This happens so quickly. It happens so
quickly, but in your mind, you quickly evaluate those things, and you decide and you act.
That is premeditation and deliberation.’ ” (Wang, supra, 46 Cal.App.5th at p. 1084.)
The closing argument was not improper, the court ruled, because, when “[v]iewed
in the context of the prosecutor’s whole argument,” . . . [t]he prosecutor used the traffic
light illustration to explain the concept of premeditation and deliberation as a weighing of
options that can happen very quickly. [Citations.] The illustration was consistent with
the law.” (Wang, supra, 46 Cal.App.5th at p. 1085.)
And, Wang continued, the illustration was consistent with People v. Avila (2009)
46 Cal.4th 680, 715, wherein the California Supreme Court did not accept the defendant’s
argument that the prosecutor equated deciding to commit murder with deciding whether
to stop at a yellow light. (Wang, supra, 46 Cal.App.5th at p. 1086.) Wang explained that
in Avila, the California Supreme Court “upheld the prosecutor’s argument that ‘assessing
one’s distance from a traffic light, and the location of surrounding vehicles, when it
appears the light will soon turn yellow and then red, and then determining based on this
information whether to proceed through the intersection when the light does turn yellow,
[was] an example of a “quick judgment” that is nonetheless “cold” and “calculated.” ’ ”
(Wang, supra, 46 Cal.App.5th at p. 1086.)
Wang rejected defendant’s attempt to distinguish the closing argument in Avila
(where the prosecutor told the jury that “ ‘ “the decision to kill is similar, but . . . not . . .
in any way . . . the same,” ’ ”) from the closing argument at issue in Wang, which
defendant characterized on appeal as “ ‘explicitly argu[ing] that the premeditation and
deliberation required to drive through a yellow light [was] the equivalent of the
premeditation and deliberation required for first-degree murder.’ ” (Wang, supra,
46 Cal.App.5th at p. 1086, italics added.)
Wang explained: “In the context of the argument it is apparent that the prosecutor
did not equate the gravity of a decision to kill with a traffic decision, but used the
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illustration to show that, like a decision to drive through a yellow light, a premeditated
and deliberate decision to kill could be made very quickly.” (Wang, supra,
46 Cal.App.5th at p. 1086.)
Here too, defendant seeks to draw a line between the prosecutor’s comments in
Avila and the prosecutor’s comments here, arguing that the prosecutor here “suggest[ed]
an equivalency between” the “premeditation and deliberation required for first degree
murder” and “a driver’s hurried decision to run a red light.” But in reviewing the
prosecutor’s comments in this case, it is clear to us the prosecutor’s challenged remarks
were limited to the topic of “reflection” and did not equate first degree murder with a
traffic violation. As the court in Wang explained, the prosecutor “used the illustration to
show that, like a decision to drive through a [traffic] light, a premeditated and deliberate
decision to kill could be made very quickly.” (Wang, supra, 46 Cal.App.5th at p. 1086.)
Accordingly, the prosecutor’s traffic light analogy was not improper, and defense
counsel was not deficient in failing to object.
III
The parties agree that, because punishment was stayed as to count two pursuant to
Penal Code section 654, the $50 laboratory fee and associated penalty assessments should
have been stayed as well. The People take the position that $130 of the $260 of imposed
assessments should be stayed.
While we agree with the parties that the criminal laboratory analysis fee for count
two, imposed pursuant to Health and Safety Code section 11372.5, must be stayed
(People v. Sharret (2011) 191 Cal.App.4th 859, 870), we make an observation that
requires remand to the trial court for recalculation. The $260 in penalties and
assessments that the trial court incorporated by reference from the probation officer’s
presentencing memorandum apparently included $50 pursuant to Government Code
section 70373, even though (1) that provision mandates a fee of $30 per conviction, and
(2) the trial court separately ordered, and the abstract of judgment reflects, imposition of
14
criminal conviction assessments pursuant to Government Code section 70373 for each of
defendant’s three convictions. (See Gov. Code, § 70373, subd. (a)(1).)
Accordingly, we will remand the matter to the trial court to correctly calculate,
impose, and stay the relevant fees and assessments, keeping in mind that the criminal
conviction assessment pursuant to Government Code section 70373 is “not punitive in
nature” and therefore should not be stayed even if the associated conviction is stayed.
(People v. Sencion (2012) 211 Cal.App.4th 480, 484; see id. at pp. 483-483.)
DISPOSITION
The judgment is affirmed except for the Health and Safety Code section 11372.5
criminal laboratory analysis fee and the associated penalties and assessments imposed on
the count two conviction for possessing methamphetamine for sale; as to those items, the
matter is remanded with directions for the trial court to stay the criminal laboratory
analysis fee and to recalculate and stay the associated penalties and assessments in a
manner consistent with this opinion. The trial court is further directed to amend the
abstracts of judgment and to send certified copies of the amended abstracts to the
Department of Corrections and Rehabilitation.
/S/
MAURO, J.
We concur:
/S/
RAYE, P. J.
/S/
BLEASE, J.
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