A jury convicted Leonel Lopez Reyes of forcible oral copulation (Pen. Code,
Reyes contends the prosecutor committed prejudicial misconduct by arguing for the first time in rebuttal the relevance of evidence that Daniela was
The People ask that we order the trial court to amend the abstract of judgment to reflect the jury's true findings on the allegations under section 667.61, subdivision (l) attached to counts 1 and 2 as well as the court's oral pronouncement of judgment on those counts, and to indicate that Reyes was sentenced under that section. Reyes agrees, and we conclude the abstract of judgment should be modified to reflect those changes. As so modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because Reyes does not challenge the sufficiency of the evidence of his convictions, we briefly summarize his offenses. Where necessary to detail the facts relevant to Reyes's appellate contentions or to determine prejudice, we do so at that point in the opinion.
From late 2008 to about the middle of 2010, Daniela lived with her mother and sister in a house that they shared with Reyes, Reyes's wife and three children. In 2010, the families moved into separate apartments. Reyes at times borrowed from and repaid money to Daniela's mother.
In June 2011, Reyes owed $100 to Daniela's mother, who expected him to repay it. On the afternoon of June 22, 2011, Daniela was home when Reyes knocked at their door. She hesitated and did not want to open the door because of an incident that had occurred in their prior house: Reyes had pulled her off a couch where she had been sitting with his son and Daniela thought he was just playing a game, but he started to put his hand inside her shorts and underwear. Daniela nevertheless opened the door for Reyes, who told her he was there to repay money. She opened the outside security door,
A sexual assault examination showed evidence of Reyes's sperm consistent with his DNA profile in Daniela's vagina. A physical examination of Daniela was within normal limits; it revealed no sex assault-related injuries and therefore there were no findings.
Reyes testified that on June 22, 2011, after he gave Daniela the money he owed her mother, Daniela wanted to "play" and jumped on his back when he was about to leave. He claimed she removed her shorts and underwear and they had consensual oral and vaginal sex. Reyes denied holding Daniela's hands down during the acts. He testified that while he knew having sex with someone who was 14 years old was against the law in the United States, it was not a problem in Mexico and he did it because he was sexually attracted to her. Reyes admitted lying to police about his whereabouts that afternoon.
I. Claims of Prosecutor Misconduct
Reyes complains that the prosecutor committed prejudicial misconduct in two separate instances. First, he contends she engaged in misconduct when she raised in her rebuttal closing argument for the first time the fact Daniela was gay so as to suggest Daniela would not consent to have sex with him. He maintains the prosecutor did not discuss consent in her argument in chief, but waited until rebuttal in order to make it impossible for his defense counsel to respond to this contested issue. He argues this conduct violated both federal and state Constitutions and rendered the trial fundamentally unfair, requiring reversal under the Chapman (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]) standard of harmless error.
Second, Reyes contends the prosecutor committed misconduct by misstating the beyond a reasonable doubt standard in such a way that tended to
A. Standard of Review
B. Claim of Misconduct in Arguing in Rebuttal Closing That Daniela Was Gay and Therefore Did Not Consent
During Daniela's cross-examination, defense counsel asked about Daniela's relationship with her mother, to which Daniela responded it was good "about certain things" but not others given her mother's different opinions. Defense counsel pressed the issue, eliciting Daniela's admission that she was gay, and her testimony that she did not think that was something her mother wanted to know about. Defense counsel then sought to question Daniela about what she meant by earlier testimony concerning her discussion with friends about "how [she] wanted it to happen," but the prosecutor objected on grounds of the rape shield law
During the People's closing arguments, the prosecutor pointed out to the jury that for purposes of counts 1 and 2, forcible oral copulation and forcible rape, one of the elements was that the victim did not consent. She then argued, "So what do we know from Daniela? Daniela told us that the defendant orally copulated [her] forcefully. She said that she didn't want to have any sexual relations with him. She told him, `No.' She told him to leave. She told him, `Stop.' She was not a willing active participant in the act of oral copulation." The prosecutor made similar arguments about the rape: "Daniela tells him, `Leave.' She tells him, `No.' She tells him, `Stop.' And he doesn't do any of that.... He continues with his forcible sexual assault on Daniela."
In defense closing, counsel argued that Daniela's testimony differed about whether she told Reyes to stop or leave during or before the oral copulation and rape, that Reyes's belief was important, and the prosecutor was required to prove Reyes's state of mind as to whether Daniela was consenting to the acts. Defense counsel argued that the law as to those counts was that the defendant was not guilty if he actually and reasonably believed the woman consented to the intercourse and had such belief throughout the act of intercourse. Using an example of a dating scenario and pointing to the absence of physical injury to Daniela, counsel asserted that Daniela's unexpressed feeling that she was forced, and the absence of evidence that Reyes used force or fear, compelled a finding that Reyes was not guilty. He also pointed to evidence that Daniela told an examining nurse that Reyes gave her $20, arguing that "[Daniela] would not be the first person to be more inclined to have sex with someone [for money]."
In rebuttal, the prosecutor referenced counsel's argument about consensual encounters, stating: "[Defense counsel] was talking about people going on dates and women getting bought dinners, not prostitutes, just the nice fun date. And [he] argued about that $20. Not only was Daniela a slut, she was cheap. She sold herself to that man who could be her father, who had children older than her, for $20. If you believe the defense version that Daniela
Defense counsel objected that the argument violated the court's in limine ruling to exclude sexual background evidence. The court pointed out that defense counsel had originally elicited the testimony that Daniela was gay, which was not stricken from the record. In a bench conference, defense counsel pressed his objections that the prosecutor committed misconduct by delving into an area governed by the in limine ruling; that the prosecutor should have minimized such evidence and the court should instruct the jury to disregard the comment or declare a mistrial. The court denied the mistrial request. The prosecutor responded that defense counsel pushed Daniela to testify as she did, but the fact Daniela was gay "doesn't mean that she has any type of sex. That's the rape shield, is the sex part." The court agreed, ruling, "The fact that one person is or isn't gay has nothing to do with their sexuality." It ruled the prosecutor's statement was "within the realm of reasonable argument."
In challenging the prosecutor's rebuttal comment concerning Daniela's testimony of her sexual orientation, Reyes argues: "The prosecutor should have addressed the issue of consent during her argument in chief. The crimes charged in counts one and two each required that the prosecutor prove, as an element of the offense, that Daniela did not consent to the act.... [B]y failing to address the question of consent until her rebuttal argument, the prosecutor made it impossible for appellant's trial counsel to respond during summation to the prosecutor's argument on the only element of counts one or two that was actually contested at trial." Citing People v. Robinson (1995) 31 Cal.App.4th 494 [37 Cal.Rptr.2d 183], Reyes maintains the prosecutor presented arguments "designed to incriminate the defendant, making those arguments immune from defense reply" and violated both federal and state standards.
As an initial matter, Reyes's specific argument lacks support in the record, as our foregoing summary indicates the prosecutor plainly raised the issue of Daniela's consent in her initial closing summation, and did not blindside defense counsel in making her arguments. Reyes clarifies in his reply brief that this claim is directed to the prosecutor's use of Daniela's sexual orientation in her rebuttal closing. To the extent Reyes challenges the prosecutor's mention of Daniela's sexual orientation for the first time in rebuttal argument as evidence tending to show Daniela would not have consented to the sex acts, we conclude he has not demonstrated the prosecutor's argument amounts to misconduct.
Here, Daniela's claimed sexual orientation was in evidence. It was not improper, nor did it violate any pretrial evidentiary ruling (see fn. 3, ante), for the prosecutor to draw a deduction from that fact in response to defense counsel's closing arguments concerning consent. On this record, it cannot be said the prosecutor's brief reference was so egregious that it infected the entire trial, rendering it fundamentally unfair. (Accord, People v. Fernandez (2013) 216 Cal.App.4th 540, 563 [157 Cal.Rptr.3d 43].) This was not a situation, as in People v. Robinson, supra, 31 Cal.App.4th 494, in which the prosecutor committed numerous acts of misconduct, including by giving a "perfunctory ... opening argument designed to preclude effective defense reply, and then giv[ing] a `rebuttal' argument — immune from defense reply — 10 times longer ... than his opening argument." (Robinson, at p. 505.) Rather, the prosecutor gave a fair response to Reyes's closing argument concerning Daniela's asserted consent to the sex acts. And in Robinson, the appellate court's decision to reverse was based on the prosecutor's misconduct both before and during trial, as well as error by the trial court in
C. Asserted Misconduct in Explaining the Reasonable Doubt Standard
Following the presentation of evidence, the trial court instructed the jury as to reasonable doubt with CALCRIM No. 220 as follows: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless the evidence proves a defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
During closing argument, defense counsel discussed Reyes's testimony and his belief that the sex with Daniela was consensual, and argued that Reyes's only crime was having sex with a minor. He argued: "[The People] have to prove it beyond a reasonable doubt from Mr. Reyes, what he reasonably believed. And they have to prove that he could not, beyond a reasonable doubt, reasonably believe that this young woman was consenting to his sexual acts upon her. [¶] And reasonable doubt ... they have to have proof that leaves you with the abiding conviction that if you were to reach a guilty verdict, you have to have an abiding conviction that that's the verdict. Not today, not tomorrow.... [¶] And if someone a year from now came running in with one of those cell phone videos ... and everything is on video, you would have to be able to say, `No.' I have an abiding conviction that my verdict was true and I don't need to see it. But if you want to see that video, if you have any reasonable doubt about what happened ... with Daniela, ... if you have any reasonable doubt about what happened, even a little reasonable doubt, then the verdict is not guilty."
During the prosecutor's closing rebuttal argument, the following colloquy occurred:
Pointing out prosecutors must not misstate the law in general and particularly may not absolve the prosecution from its obligation to overcome reasonable doubt of the elements of the offenses, Reyes argues the prosecutor's statement that reasonable doubt "comes into play only if you have a reasonable doubt" misstated and trivialized the role that the standard plays in a criminal trial, and that her ensuing comments about possible doubt and reasonable doubt "grossly oversimplified the central role of the reasonable doubt standard in the jury's decision-making process." Reyes maintains the arguments lessened the standard by "making it seem jurors would not need to take that standard into consideration unless they had a doubt about the truth of the charge after tentatively making a determination of guilt." The People respond that Reyes forfeited the issue by failing to object on the specific ground of misconduct, but that the prosecutor did not misstate the law in any event. They also maintain any error was harmless.
Reyes does not point to any indication in the record, and we have found none, that as a result of the prosecutor's remarks, the jurors used the reasonable doubt standard to evaluate doubts they may have had after preliminarily reaching a conclusion as to Reyes's guilt rather than deciding whether the prosecution had met its burden to prove all elements of the charged offenses beyond a reasonable doubt. Indeed, the jury's decision that it could not reach a finding on count 5 or the multiple victim allegations (ante, fn. 2) suggests it carefully applied the reasonable doubt standard in its deliberations. In any event, with respect to the prosecutor's remarks, we observe that elsewhere, she told the jurors to follow the law as stated in the court's instructions, and she correctly characterized the applicable standard without objection from defense counsel, explaining that the evidence had shown beyond a reasonable doubt, "not beyond all possible doubt" or "a shadow of a doubt," that Reyes committed the alleged offenses. The court properly instructed the jury with CALCRIM No. 200 regarding its obligation to follow the law set forth in the instructions, and to disregard attorney comments that were inconsistent with the instructions. The jury was also instructed with CALCRIM No. 222, that "[n]othing that the attorneys say is evidence," as well as CALCRIM No. 220, which correctly instructed the jury about the presumption of innocence and the prosecutor's burden of proving guilt beyond a reasonable doubt. After the challenged statements by the prosecutor, the court referred the jury back to its instructions.
Finally, even attributing some error in the prosecutor's comments, we conclude Reyes has not shown it reasonably likely that he would have obtained a more favorable verdict or better result absent the challenged statements. (People v. Blacksher (2011) 52 Cal.4th 769, 828, fn. 35 [130 Cal.Rptr.3d 191, 259 P.3d 370].) We also conclude the challenged conduct was harmless beyond a reasonable doubt. (Ibid.; People v. Cook (2006) 39 Cal.4th 566, 608 [47 Cal.Rptr.3d 22, 139 P.3d 492].) The People's evidence consisted of Daniela's testimony, as well as evidence that Reyes had lied to police concerning his whereabouts that afternoon. He conceded to committing the sex acts, defending only on grounds that Daniela consented. In our view, the fact Daniela suffered no physical injuries does not render the case a close one on the issue of consent as Reyes maintains, particularly when the examining nurse agreed such injury was not always present. In light of the relatively strong evidence of Reyes's guilt, we cannot say any purported misconduct was prejudicial.
II. Claim of Sentencing Error
Reyes contends the trial court sentenced him to life without the possibility of parole under section 667.61, subdivision (l) under the mistaken belief it had no discretion to impose a lesser sentence. Relying on the general proposition that a sentencing judge has discretion to strike an enhancement under section 1385 (People v. Thomas (1992) 4 Cal.4th 206, 210 [14 Cal.Rptr.2d 174, 841 P.2d 159]) and other circumstances concerning the state of the law when subdivision (l) took effect, Reyes argues section 667.61 gave the court discretion to strike the true finding under subdivision (l) and impose a term of 15 years to life under section 667.61, subdivision (b). Because according to Reyes the sentence was not a true exercise of the court's sentencing discretion, he asks that we remand the matter for resentencing so the court can properly exercise its discretion.
As we have summarized above, the jury found true special allegations that Reyes committed the crimes of counts 1 and 2 "during the commission of burglary, with the intent to commit forcible oral copulation and/or forcible rape, and that the victim was a child 14 years of age or older and under 18 years of age at the time of the offense in violation of ... section 667.61, subdivision (l)...." The jury separately found true allegations under section 667.61, subdivisions (b) and (e) that Reyes "committed the crime[s] ... during the commission of burglary...."
During Reyes's sentencing hearing, Reyes's counsel conceded, and the prosecutor agreed, that Reyes's sentence was governed by statute, and that the court had no discretion with respect to sentencing. Reyes's counsel, however, objected to the sentence on grounds it was cruel and unusual under the Eighth Amendment to preserve possible issues arising in the federal courts. The court proceeded to sentence Reyes on the determinate counts, and then on the indeterminate counts and special allegations, imposing life without the possibility of parole sentences on the findings under section 667.61, subdivision (l), and staying under section 654 the findings under section 667.61, subdivisions (b) and (e).
B. Legal Principles
Specifically, section 667.61, subdivision (l) provides: "Any person who is convicted of an offense specified in subdivision (n) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), upon a victim who is a minor 14
Section 667.61, subdivision (g) provides: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section."
The One Strike law provides that "[t]he penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact." (§ 667.61, subd. (o).)
We reject Reyes's argument concerning the Legislature's intent to retain the trial court's section 1385 discretion in these circumstances. He maintains such intent is reflected by the fact that when the Legislature amended section 667.61 in 2010 to include subdivision (l), it did not also amend section 667.61, subdivision (g) to list subdivision (l) within the findings that "shall not" be stricken.
III. Claim of Cruel and Unusual Punishment
Reyes contends his One Strike sentence of life without the possibility of parole for committing two forcible sex offenses violates the proscriptions against cruel and unusual punishment in the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Because his counsel did not object to the sentence under the California Constitution, Reyes argues his counsel was prejudicially ineffective for failing to do so, since his life-without-the-possibility-of-parole sentence is disproportionate to his offense under the applicable state standards. As we will explain, we reject these contentions.
A. Eighth Amendment
As we have summarized above, section 667.61, subdivision (l) mandates a sentence of life without the possibility of parole for specified sex offenses against minors that are committed under one or more aggravating circumstances. (§ 667.61, subd. (l).) We have found no case deciding whether such a sentence imposed under section 667.61, subdivision (l) constitutes cruel and/or unusual punishment. However, appellate courts have upheld the constitutionality of indeterminate prison terms imposed under the One Strike law against such challenges under the cruel and unusual punishment prohibition under the Eighth Amendment in cases where the defendants committed rape in the commission of a burglary done with the intent to commit another sex crime.
In People v. Crooks (1997) 55 Cal.App.4th 797, 805-809 [64 Cal.Rptr.2d 236], the Court of Appeal rejected the defendant's challenge to his 25-year-to-life sentence for committing a rape while engaged in the commission of a first degree burglary with the intent to commit that kind of rape. (Crooks, at p. 804.) The Crooks court pointed out that in Harmelin v. Michigan, a defendant was lawfully sentenced to life without parole for possessing a large quantity of drugs. (Harmelin v. Michigan, supra, 501 U.S. at pp. 961, 994-995 (lead opn. of Scalia, J.); see also id. at pp. 1008-1009 (conc. opn. of Kennedy, J.) ["The dangers flowing from drug offenses and the circumstances of the crime committed here demonstrate that the Michigan penalty scheme
In People v. Alvarado, the appellate court considered an Eighth Amendment challenge to the 15-year-to-life sentence of a defendant who was convicted of rape during the commission of a burglary under section 667.61, subdivision (e)(2). (People v. Alvarado, supra, 87 Cal.App.4th at pp. 183, 185.) Alvarado pointed out that subdivision (e)(2) "reflects a legislative finding that the victims of a residential burglary are more vulnerable because they are inside a structure rather than out in public" and that the Legislature "sought to deter by harsher punishment those who burglarize homes and exploit the vulnerability of people inside to commit sex offenses." (Alvarado, at pp. 186, 187.) Addressing the defendant's claim that his sentence was roughly the same as for second degree murder, the court stated, "Although the finality of the consequences of second degree murder make that crime categorically different from rape during a burglary, the double trauma of having one's home invaded and then being sexually violated is substantial. Moreover, second degree murder does not require a specific intent to kill or commit a felony and requires only that a person willfully and knowingly perform an act dangerous to life with conscious disregard for life. [Citation.] On the other hand, rape during a burglary reflects that the person decided to enter another's residence for a felonious purpose and also decided to commit a sexual assault inside. Contrary to defendant's argument, we cannot say that punishing such conduct as severely as second degree murder is either shocking or outrageous." (Id. at p. 200.) Finally, the court observed: "Clearly, California has taken the most aggressive approach toward punishing and deterring rape during the commission of a burglary. As defendant asserts, it imposes the longest terms with the least amount of judicial discretion. However, the fact, acknowledged by defendant, that some other jurisdictions allow for the same or even harsher punishment (Louisiana and Washington) indicates that in the abstract, the One Strike term imposed here is not irrational or obviously excessive punishment for rape during a burglary. The fact that the sentence is mandatory merely reflects the Legislature's zero tolerance toward the commission of sexual offenses against particularly vulnerable victims. It does not, however, render a defendant's sentence
The analyses of the courts in Crooks and Alvaradoinform us in addressing Reyes's challenge. Looking to the gravity of Reyes's offenses and comparing them to his life without the possibility of parole sentence mandated by the Legislature, we are not persuaded that the comparison gives rise to an inference of gross disproportionality. We recognize that Reyes's sentence is very severe. (Harmelin v. Michigan, supra, 501 U.S. at p. 1001 (conc. opn. of Kennedy, J.) [sentence of life imprisonment without the possibility of parole is "the second most severe penalty permitted by law"]; see Graham v. Florida, supra, 560 U.S. at p. 69.) But the offenses for which Reyes was punished — forcible rape and forcible oral copulation — were not only found to have occurred during the commission of a residential burglary, but also were committed against a minor, society's most vulnerable victim. In People v. Scott (1994) 9 Cal.4th 331 [36 Cal.Rptr.2d 627, 885 P.2d 1040] the California Supreme Court stated: "Above and beyond the protection afforded to all victims of sexual assault, the Legislature has determined that children are uniquely susceptible to `outrage' and exploitation. Hence, special laws on the subject of sex with children have been enacted. They expand the kinds of acts which may be deemed criminal sexual misconduct, and they generally operate without regard to force, fear, or consent." (Id. at pp. 341-342; see also In re M.V. (2014) 225 Cal.App.4th 1495, 1521-1522 [171 Cal.Rptr.3d 519].)
B. California Constitution
Reyes points out he was 35 years old when he committed the offenses of counts 1 and 2. His record shows he was arrested for illegal entry into the United States and subject to deportation proceedings in 2002 and 2004, and he had prior arrests in 2002 with no disposition noted. He points out there is no indication in his prior record that he committed prior sex offenses, and his probation officer scored him in the low risk category for being charged with or convicted of another sexual offense if he were released into the public at the time of his sentencing. Though Reyes acknowledges his convictions in counts 1 and 2 are serious offenses, he refers to the absence of injury or trauma on Daniela's examination and maintains his conduct in committing the crimes was "not unusually egregious." He argues that, viewing the evidence used to convict him, "nothing about it justifies the most severe sentence a court can impose for criminal conduct, short of death."
Reyes further argues his sentence is commensurate with that required for a first degree murder with special circumstances depending on the circumstances under which the murder was committed, and that had he killed Daniela while committing the crimes against her, his punishment would likely be the same (and not a sentence of death), given his minimal criminal history and the absence of evidence he inflicted physical injury. He argues that under the circumstances, his punishment of life without the possibility of parole is disproportionate because it treats him more severely than criminals who have committed more serious crimes. Finally, Reyes points to a federal sentencing treatise for statistics of other industrialized nations that either do not permit life without the possibility of parole sentences, use it sparingly, or do not permit it to be mandatory.
In addressing the first prong, we are not persuaded by Reyes's attempt to minimize his personal criminal history and the nature of his offenses against
Estrada observed that the punishment under the One Strike law "is precisely tailored to fit crimes bearing certain clearly defined characteristics." (People v. Estrada, supra, 57 Cal.App.4th at p. 1280.) That is true as to subdivision (l) of section 667.61 at issue here, where to impose the life without parole term, the crime must be one of sexual violence and committed under circumstances increasing the risk of injury or death to the victim and committed against a minor 14 years or older. "Thus, unlike [the defendant in Dillon, Reyes] cannot claim he is the victim of an indiscriminate sentencing scheme which metes out the same punishment for a broadly defined offense regardless of the circumstances surrounding the commission of the offense." (Estrada, at p. 1280.) Estrada finally observed the section 667.61 crime involved a high degree of danger to personal safety, warranting severe punishment: "Burglary of an inhabited dwelling also poses a risk to human life.... When we add to the risk of residential burglary the risk of rape by means of `force, violence, duress, menace, or fear of immediate and unlawful bodily injury' (§ 261, subd. (a)(2)) it is clear the punishment of life with the possibility of parole after 25 years is not constitutionally out of line with other California punishments." (Estrada, at pp. 1281-1282.) In this case, when we consider these circumstances, and add to them the fact the victim is a 14-year-old minor, the Legislature's decision to impose a sentence of life without the possibility of parole under section 667.61, subdivision (l) is not so disproportionate as to shock the conscious and offend fundamental notions of human dignity, and thus not constitutionally infirm.
IV. Amendment of Abstract of Judgment
The People ask us to order the trial court to modify the abstract of judgment to reflect in section 2 of the Judicial Council form (CR-292) the jury's true findings on the allegations under section 667.61, subdivision (l) attached to counts 1 and 2 as well as the court's oral pronouncement of judgment on those counts, and to indicate by checking a box in section 8 of that form that Reyes was sentenced under that section. Reyes concedes these modifications are proper, and also agrees with the People's assertion that the trial court sentenced him to two life terms without the possibility of parole, but intended to stay one of those terms under section 654. We agree the abstract of judgment must be so modified to reflect Reyes's sentencing under section 667.61, subdivision (l) and order the trial court to correct the abstract of judgment accordingly.
The matter is remanded and the trial court ordered to modify the abstract of judgment to reflect the jury's true findings on the allegations under Penal Code section 667.61, subdivision (l) attached to counts 1 and 2 as well as the court's oral pronouncement of judgment on those counts, and to indicate by checking a box in section 8 of the abstract of judgment that Leonel Lopez Reyes was sentenced under that section. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment in these respects, and forward a certified copy of it to the Department of Corrections and Rehabilitation.
Benke, Acting P. J., and Irion, J., concurred.