Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County Super. Ct. No. FWV030007, Gerard S. Brown, Judge.
HALLER, J.
Daniel Arenas appeals from a judgment convicting him of numerous counts arising from his assault on his ex-girlfriend and another woman, and his subsequent standoff and shooting at the police. He contends the judgment should be reversed because: (1) the trial court erred in denying his midtrial request to change from self-representation to representation by counsel; (2) the trial court did not have good cause to discharge a juror during trial; (3) there is insufficient evidence to support a finding that he personally and intentionally discharged a firearm; (4) there is insufficient evidence to support gang enhancement findings; (5) the trial court's imposition of two gang enhancements violated Penal Code section 654; and (6) the trial court's selection of consecutive sentences violated his jury trial rights under the Apprendi rule (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi)). We reject these arguments.
Subsequent statutory references are to the Penal Code.
The Attorney General concedes two sentencing errors: (1) the trial court erroneously imposed two enhancements, rather than one, for prior serious felony convictions, and (2) the abstract of judgment erroneously lists four, rather than three, enhancements for prior prison terms. We modify the judgment to strike one of the prior serious felony enhancements. We order that the abstract of judgment be corrected to (1) remove one of the prior serious felony enhancements, (2) remove one of the prior prison term enhancements, and (3) calculate Arenas's total prison term as 59 years, four months.
FACTUAL AND PROCEDURAL BACKGROUND
The Assaults at Shakey's Pizza Parlor
At about 6:00 p.m. on January 10, 2004, Consuelo Gutierrez (Arenas's girlfriend) went to Shakey's Pizza Parlor (Shakey's) with her sister-in-law (Elizabeth Ruiz) and several children. Arenas's family was at Shakey's celebrating the birthday of a three-year-old family member. Arenas arrived at the party about one-half hour after Gutierrez and sat at a table with Gutierrez and Ruiz. At some point after his arrival, Arenas left for about one-half hour. When he returned he was acting strange; he appeared to have been drinking and using drugs. Arenas made accusations to Gutierrez, including that she was having an affair with his uncle.
Because of Arenas's behavior, Gutierrez and Ruiz decided to leave the party. As Gutierrez was getting in her car to leave, Arenas (who had followed Gutierrez outside) told her he wanted to talk to her. He grabbed her by the arm and pulled her away from the car. He again accused her of sleeping with his uncle, which she denied. Arenas hit Gutierrez with his fist by her cheekbone, causing bruising and bending her glasses. Gutierrez tried to hit Arenas, but he prevented her from doing so by shoving her. Gutierrez ran towards the restaurant, but Arenas blocked the door. Gutierrez yelled for Ruiz to help her and to call the police.
Ruiz approached Arenas and suggested that he wait until he was "in [his] right mind" before "talk[ing] things over" with Gutierrez. Arenas pulled a gun out of his pocket and pointed it at Ruiz. Ruiz yelled that Arenas had a gun and told the children to run. Arenas reached down to his sock and pulled out what appeared to be a clip containing bullets. Arenas appeared to place the clip in the gun. He pointed the gun at Ruiz's chest and tried to shoot it, but the gun apparently jammed. Arenas told them not to call the police; if they did he would "shoot it out with the police" or shoot the people inside the restaurant and "he didn't care who it was, if it was a cop or what, but somebody was going to go down with him." Gutierrez, Ruiz, and the children ran to the car and left. When they had driven away from Shakey's, they called 911 and reported that Arenas had assaulted Gutierrez, that he had a gun, that he tried to cock the gun but the gun jammed, and that he had threatened to shoot at them if the police came.
Officer Robert Katelhut testified that he received a radio call about a man at Shakey's "who wanted to shoot it out with the police." When the police arrived at the restaurant, they did not see a man with a gun. Officer Katelhut looked for a person matching the description given over the radio, and he observed there were several persons matching the description. Officer Katelhut heard someone say "police." Arenas looked startled to see the police and started to walk away. Believing that Arenas was the suspect, Officer Katelhut (whose gun was holstered) ordered him to stop and come over.
Arenas continued to walk away. As Arenas approached a four-foot-high partition, Officer Katelhut saw him pull a gun out of his waistband, raise the gun, and point it directly at Officer Katelhut for a brief moment. Officer Katelhut yelled that Arenas had a gun and told everyone to get down. At this point the police drew their weapons but did not shoot because of the people in the restaurant.
After Arenas pointed the gun at Officer Katelhut, Arenas quickly brought the gun down and began making motions below the partition as if trying to clear a jam in the gun. Arenas said, "I ain't going down like that this time. . . . 'Let's do this.' " The police ordered Arenas to drop the gun, but he did not comply. Arenas ran behind a salad bar. As he was doing so, he continued to point the gun at Officer Katelhut and to try to clear the jam. As the police were evacuating people from the restaurant, Arenas's aunt (Katee Lopez) and her boyfriend (Augustin Muniz) approached Arenas at the salad bar. Arenas grabbed Lopez and Muniz and pulled them towards a corner.
For about 20 minutes, the police tried to convince Arenas to drop the gun. When the officer conducting the negotiations (Officer Gregory Signorio) asked Arenas what he wanted to do, Arenas responded by asking what the police wanted to do. Officer Signorio told Arenas that they wanted him to drop the gun, and the police would then put him in handcuffs "and that would be the end of it." Officer Signorio testified that during the incident he recognized Arenas from a previous occasion when Arenas was shot by the police, and he realized that Arenas did not want to surrender because he was thinking the police wanted to shoot him again. Attempting to reassure Arenas, Officer Signorio told him the police did not want to shoot him. Arenas responded, "[N]o, you guys are here to kill me."
Meanwhile, Lopez and Muniz, who had stayed in the restaurant, were also trying to persuade Arenas to surrender. They tried to physically restrain him and to get the gun from him. During this struggle, Arenas pointed the gun all around the restaurant, including directly at the police. At one point Arenas stated, "Let's do it, homes, right now." Arenas pointed the gun at Officers Jason Wessely, George Hajj, and Jack West. Observing this, Officer Katelhut told Muniz to "[t]ake him down, big guy." Muniz put his full weight on Arenas's arm and knocked him to the ground. Arenas fired the gun either as he was falling or after he landed on the floor. The bullet hit the floor and ricocheted into the ceiling. The officers testified that Arenas was trying to shoot directly at them but his efforts were thwarted by the wrestling actions of Lopez and/or Muniz. In contrast, Lopez testified that the gun went off accidentally as she and Muniz wrestled Arenas to the floor.
According to Officers Katelhut and Hajj, Arenas fired the gun as he was falling to the floor. According to Officer West, Arenas fired the gun when he was on the floor while looking directly at Officer West. Officers Wessely and Signorio did not see the gun when it was fired because they were moving to different positions.
As Arenas fell to the floor, Officers Katelhut and Signorio ran up to him and grabbed him. Officer Signorio ordered Arenas to drop the gun and Officer Katelhut tried to pull the gun from Arenas's hand, but Arenas would not comply. The police were finally able to retrieve the gun by stepping on Arenas's arm and kicking the gun loose.
Testifying on his own behalf, Arenas claimed that he had been using drugs that day and was hallucinating; his gun accidentally fell out of his waistband during the altercation with Gutierrez in the parking lot and he picked it up and put it in his pocket; he did not say he would shoot it out with the police; he thought the police were going to shoot him inside the restaurant so he pulled out his gun but kept it down by his leg; and he heard a gunshot when he was wrestled to the ground but did not know what gun had discharged.
Arenas's Statements After the Incident
The prosecution introduced into evidence statements made by Arenas during several recorded phone conversations while he was in jail after the incident. The phone conversations were with Lopez, Muniz, Gutierrez's brother (Adam), and a woman named Darlene. During these calls, Arenas made repeated references to "homies" and "home girls"; made requests and referred to plans for people to talk to witnesses; and discussed his state of mind during and after the incident.
For example, in a conversation with Lopez, Arenas asked if anyone had spoken with Gutierrez to ask her why she called the police simply because he slapped her in the parking lot, and commented: "Somebody has to talk to her . . . . If we just start eliminating these charges,—" In a conversation with Adam, Arenas told Adam that he (Arenas) could "pull rank" to take care of the matter; asked why Gutierrez would not listen to his side of the story; and stated that "home girl['s]" (i.e., Ruiz's) report that he had pointed a gun at her needed "to be corrected." Adam assured Arenas that Gutierrez had already stated she did not want to have anything to do with the case and that all she would say was that she got hit in the mouth. However, Adam told Arenas that he did not know anything about Ruiz's claim concerning a gun; asked Arenas why he went to such extremes and stated Arenas should have just "let it go"; and claimed that the "homeboys" were mad at Arenas for what he did because it was "stupid" and "f___ed the whole program up."
Arenas acknowledged to Adam that during the incident he was "all twisted," that it was "all in [his] head," and he "overreacted." However, he stated that no one should be mad at him because he had to "handle [his] biz." Explaining why he went to such extremes, he stated, "I'm not gonna surrender! I don't surrender!" Arenas also commented that the incident could have been avoided if the police had not been called and instead the person had gone to Adam to handle the matter, and that he [Arenas] was "out of [his] mind" and would have accepted Adam's intervention.
In a second phone conversation with Lopez, Arenas asked Lopez to call an individual who would tell her if he had been able to reach a person and "how'd they do it, or where they're gonna do it." Lopez also spoke with Darlene, who he identified as "Joker's home girl," and discussed plans about "f___ing up that bitch." In another conversation with Lopez, Arenas stated that "homeboy" was going to "try to find someone . . . [¶] . . . [¶] [to] make an example out of that. . . . . [¶] . . . . [¶] '[C]ause . . . they can't let that fly." During this same phone call, Arenas also spoke with Muniz and told him that he (Arenas) was trying to "handle this shit the gangster way" and that he was trying to "[m]ake an example."
Gang Enhancement Evidence
The prosecution presented evidence showing that Arenas was a member of the Ontario Black Angels ("Black Angels") gang. Arenas told Gutierrez he was a member of the gang; he had several tattoos associated with the gang; and the police had identified him as a member of the gang.
The prosecution's gang expert, Officer Keith Volm, testified that members of the Black Angels gang were recruited from the Ontario Varrio Sur (OVS) gang. The OVS gang was a primarily Hispanic gang that claimed most of Ontario as its territory. OVS gang members could earn their way to becoming Black Angels gang members by, for example, committing murders, setting up drug deals, or showing their worth through acts of recklessness. The OVS/Black Angels gang had committed crimes involving murder, assault on police officers, gun related offenses (e.g., armed robbery, brandishing a firearm, possession of a firearm, manufacturing a firearm, altering a firearm), drive-by shootings, kidnapping, carjackings, high speed pursuits with the police, burglaries, auto thefts, and drug-related offenses. Officer Volm stated that Arenas had been a member of the OVS gang since the early 1990's, he had subsequently become a member of the Black Angels gang, and at the time of the January 2004 incident he was an active gang member.
Officer Volm testified that Arenas's statements during the phone calls from jail reflected his active gang membership. Officer Volm pointed to Arenas's references to "homies" and "home girls" in the phone calls which meant, respectively, a gang member and a female connected to the gang. The phone calls showed that Arenas was trying to arrange for witness intimidation, a common tactic used by the Black Angels gang. The indications of witness intimidation included Arena's statement to Adam that Ruiz's report that he pointed a gun at her needed to be "corrected"; his conversation with Adam that essentially told Adam he was responsible for ensuring that Gutierrez (Adam's sister) did not testify adversely to Arenas; his statement to Lopez that she should call a specific individual who would tell her how and where they were going to talk to a person; and his statement to "Joker's home girl" Darlene about "f___ing up that bitch." Likewise, Arenas's statement to Muniz about "making an example out of" someone demonstrated a gang technique of communicating to the community that the gang would not tolerate persons reporting a gang member to the police. Arenas's active gang membership was also reflected by his statements to Adam that he could "pull rank" to take care of the matter (meaning someone could get hurt); that he had to "handle [his] business" (reflecting a gangster mentality of doing what must be done regardless of risk to life); and that Gutierrez should have reported the problem to her brother rather than the police (meaning she should have handled the problem "the gang way").
Arenas was not charged with witness intimidation, apparently because no contact was actually made with the witnesses.
Officer Volm stated that Adam was not a Black Angels gang member, but that he "hung out" with gang members.
Officer Volm also addressed the issue of whether Arenas's conduct was for the benefit of the gang as it related to the charged offense of possession of a firearm by an ex-felon and the charged offenses associated with the standoff and shooting at the police. Officer Volm opined that Arenas possessed the firearm to benefit the reputation of the gang and his own reputation within the gang. He stated that gang members carry guns to protect themselves from rival gang members, persons who get in their way, and police officers. They also carry the weapons offensively and to commit crimes of opportunity, for example if they are suddenly called upon to "handle some business" or to loan a weapon to a fellow gang member to commit a crime. Officer Volm testified that Arenas's status in the gang was enhanced by being known as someone with a gun as this showed that he was always ready (even at a child's birthday party) if instructed by a senior gang member to commit a crime.
The prosecution did not allege gang enhancements for the charged offenses involving the assaults on Gutierrez and Ruiz.
Regarding the offenses associated with the standoff with the police, Officer Volm opined they were for the benefit of the gang because Arenas was showing that he was being "the good soldier, the good gang member, just doing what's expected of him[,] . . . [¶] . . . carrying out that which he believes the gang would expect him to do under that set of circumstances." Officer Volm acknowledged that in past incidents armed gang members frequently dropped the gun right away, and explained that "[t]he gangs [do not] like to have their members bring[ing] on trouble to the gang or the gang name in this fashion." However, Officer Volm stated that Arenas was showing people that in his view a good gang member did not surrender.
Finally, Officer Volm opined that Arenas's act of shooting at the officers was for the benefit of the gang because it showed the gang's recklessness and instilled fear in the community. He explained that a gang member establishes his reputation within the gang by displaying reckless behavior, including shooting at a police officer. He noted that a gang member's willingness to act recklessly gains favor with senior gang members, who may then call upon the gang member to carry out other gang tasks. Further, shooting at the police instills fear in the community, decreases the likelihood of the community calling the police, and improves the gang's ability to survive.
Testifying on his own behalf, Arenas acknowledged that he was a member of the OVS gang when he was younger like everyone in the neighborhood, but denied he was a Black Angels gang member and claimed he no longer engaged in gang activities.
Jury's Verdict and Sentence
Arenas was convicted of the following: count 1: possession of a firearm by an ex-felon (§ 12021, subd. (a)(1)); count 2: exhibiting a loaded firearm in a rude, angry or threatening manner (§ 417, subd. (b)); count 3: misdemeanor battery (§ 243, subd. (e)(1), victim Gutierrez); count 4: assault with a semiautomatic firearm (§ 245, subd. (b), victim Ruiz); count 5: exhibiting a firearm in the presence of an officer (§ 417, subd. (c)); count 6: exhibiting a deadly weapon to an officer to resist arrest (§ 417.8); count 7: resisting an officer (§ 69); counts 8 through 10: assault on an officer with a semiautomatic firearm (§ 245, subd. (d)(2)), victims Hajj, Wessely, and West); and count 11: discharge of a firearm with gross negligence (§ 246.3, subd. (a)).
The jury rendered true findings on gang enhancements (§ 186.22, subd. (b)(1)) for count 1 (possession of firearm by ex-felon) and the counts related to the standoff and shooting at the police (counts 5 through 11). The jury also found Arenas personally used a firearm (§ 12022.5, subds. (a), (d)) for count 4 (assault with a firearm directed at Ruiz) and count 7 (resisting an officer), and that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) for counts 8 through 10 (the offenses directed at the officers). The jury also found it true that Arenas had incurred two strike prior convictions, two serious felony prior convictions, and three prior prison terms. The trial court dismissed one of the strike priors, and sentenced Arenas to 64 years, four months.
DISCUSSION
I. Trial Court's Denial of Arenas's Request to Change from Self- Representation to Representation by Counsel
Arenas argues the trial court abused its discretion and violated his constitutional rights when it denied his midtrial request to change from self-representation to representation by counsel.
Background
When Arenas entered his not guilty plea in January 2004, a public defender was appointed to represent him. A few weeks later Arenas retained his own private attorney. On March 11, 2005, Arenas requested self-representation. After advising Arenas at length about his rights and warning him about the risks of self-representation, the court granted his request. To assist with case preparation, Arenas was provided an investigator, a legal runner, and law library privileges. On May 12, 2005, as the trial date was approaching, Arenas asked the court to appoint advisory counsel to assist him. The trial court denied the request, explaining that it only appointed advisory counsel for death penalty cases.
Trial was set for May 23, 2005. On that date, Arenas moved for a continuance of the trial, stating that he needed more time to file motions, review discovery, and locate witnesses. After a lengthy discussion, the trial court found there was no good cause for a continuance and denied Arenas's request.
Jury voir dire was scheduled to commence on May 26, 2005. On the afternoon of May 25, 2005, the court told Arenas that for security reasons he should stay seated during jury selection. In response to this decision, Arenas stated that he did not think he was being treated fairly because he was not allowed to move around the courtroom; that he was not ready for trial; and that he needed a lawyer. While discussing these matters, the trial court repeatedly asked Arenas if he wanted to cease his self-representation and have counsel appointed to represent him; if so, the court would consider appointing counsel even though it was the eve of trial. Arenas stated that he felt he needed a lawyer but he did not trust lawyers, and so he wanted to continue to represent himself.
On June 1, 2005, jury selection was completed and the parties made their opening statements. On June 2, Arenas renewed his request for a continuance on the same grounds as his earlier request. The trial court denied the request.
Ten prosecution witnesses testified on June 2, 6, 7, and 8. On Thursday, June 9, Arenas did not appear in court because the county bus transporting him was hit by another vehicle. The jurors were dismissed until Monday, June 13. On the morning of Friday, June 10, Arenas appeared in court to discuss instructions and the witness list. During this proceeding Arenas told the court he was in pain from the accident and requested that the proceedings be rescheduled for a later date. The court stated that they could finish the issues they needed to discuss that morning and Arenas could see a doctor in the afternoon. The proceeding continued, with Arenas actively participating in lengthy discussions about the witnesses he wanted to call at trial.
On Monday, June 13, Arenas told the court he was in severe pain; that he had been X-rayed; and that he was told he had a swollen testicle and abrasions on his back. He stated that he had received pain medication on Friday, but he had not been given any medication that day and accordingly could not concentrate. He requested that he be provided pain medication and medical attention. The prosecutor argued that Arenas was simply trying to delay the case. The trial court stated that Arenas's "due process rights [were] absolutely the most important thing to be considered," but that if the trial were not finished that week there was a risk of losing the jury because jurors had vacations scheduled and there was only one alternate juror. The court stated that it had observed Arenas that morning and during the lengthy discussions on Friday, and although he may be in some pain the court was convinced that he was able to focus and articulate "very well." Accordingly, the court ruled that the trial proceed.
During the ensuing proceeding on Monday morning, the prosecutor called three witnesses to testify. Arenas cross-examined the first two witnesses, but periodically interjected comments that he was in pain. He declined to cross-examine the third witness, stating he could not "think straight." When the jurors were dismissed for the lunch break, the court and the parties again discussed Arenas's complaints of pain. Arenas asked that he be provided pain pills or be taken to the hospital. After obtaining permission from the jail's nurse, Arenas was provided with ibuprophen at about 2:00 p.m. About one-half hour after being given the medicine and before the jury was called to the courtroom, Arenas stated he was still in pain and requested more medication. The court stated they would "see how it goes" and declined his request.
Trial recommenced in front of the jury for the afternoon session on Monday. The prosecutor conducted short examinations of two witnesses. Arenas did not cross-examine them, at one point stating he could not "think right now." The court then directed the jury to step outside the courtroom. The court told Arenas that it found his claim that he could not concentrate incredible. The court stated it had observed him very carefully all day. Even before he was provided the medication, he appeared sharp and alert and he asked very cogent questions during cross-examination. He was provided the medication at about 2:00 p.m. and it was now 2:50 p.m. Based on its observations, the court concluded Arenas was able to concentrate notwithstanding any pain he was experiencing and that he was just attempting to delay the trial.
When the jury returned to the courtroom, Arenas again declined to cross-examine the second witness, reiterating that he could not "think right now." The prosecutor conducted a short examination of a third witness; Arenas did not cross-examine her, stating he had nothing to say. The prosecutor next commenced a lengthy examination of its gang expert, Officer Volm. During a break at 3:30 p.m., Arenas told the court he wanted a lawyer if the court was going to make him continue with the trial. The court responded that they would finish with Officer Volm's testimony for the day and discuss Arenas's request for a lawyer the following morning.
The following morning, Tuesday, June 14, the court stated the jail nurse had informed the court that Arenas was seen by a doctor on Saturday, June 11; that an appointment would be made for him to see a urologist but that it could not be made that day; and that Arenas had been provided with pain medication. Arenas confirmed that he had been given pain medication the morning of June 14. The trial court asked if Arenas wanted to pursue a motion to have an attorney appointed to represent him. After initially stating that he simply wanted a few days off from the trial because of his pain, Arenas ultimately stated he did want to request an attorney. The court and the parties then discussed his request at length. In response to the court's inquiry as to why he wanted an attorney, Arenas stated he had been in pain the entire weekend; he had just been given some pain medication approximately one hour earlier and was still in severe pain; he had asked for "a little bit of time" or to be sent to the hospital where a specialist could treat his problem; it would be unfair to make him sit in court and prepare a defense when he was in severe pain; and a lawyer might be able do what he was not currently able to do. He further stated, however, that he did not trust his lawyer; he did not really want a lawyer but wanted time to get better and to see a specialist; and that he had been told it would take about five days for his swelling to go down.
The trial court denied Arenas's request for an attorney. The trial court explained that the trial was at an advanced stage, and if counsel were appointed he or she would need significant time to prepare which would no doubt cause a loss of the jury and require that the trial start over. The court reiterated that it had been observing Arenas carefully; Arenas was "doing an outstanding job of representing himself" and was "doing a better job of representing himself than some lawyers . . ."; and his complaints of pain had not hindered his ability to effectively represent himself with cogent cross-examination of the witnesses.
After the court's ruling, Officer Volm was called back to the stand, and Arenas extensively cross-examined him. When the prosecution rested that day (Tuesday, June 14), Arenas made an unsuccessful section 1118.1 motion for acquittal. Arenas then commenced presentation of his case, examining seven witnesses during the remainder of the day.
The next day, Wednesday, June 15, Arenas advised the court that he was still in pain and the medication was making him feel drowsy. The court stated that it had observed Arenas the past several days and it was convinced that he was "perfectly capable" of fully understanding the proceedings and continuing to represent himself. Arenas continued with presentation of his defense case that day, examining 10 witnesses and testifying on his behalf. On a couple of occasions during the day, Arenas complained that he was feeling sick and stated he wanted a lawyer.
Arenas continued his own testimony on Thursday, June 16, and then rested his case. Thereafter, on that same day, Arenas participated in a discussion of exhibits and instructions, discussed a motion he had filed, and presented closing arguments to the jury. The jury deliberated on Friday, June 17, and Monday, June 20, and returned its verdicts on the afternoon of June 20, 2005.
On March 24, 2006, now represented by counsel, Arenas filed a motion for new trial, contending that after the bus accident he should have at least been provided standby counsel because of his pain. The court denied the new trial motion. The court explained that because Arenas was representing himself the court had gone "absolutely overboard" at trial to ensure his constitutional rights were protected. The court stated it had engaged in a close observation of Arenas after the accident. From this observation, the court had assessed that Arenas's ability to function mentally was no different than before the accident; he was able to function at a "very high level as an attorney representing himself"; and his functioning was "not even one percent diminished" after the accident.
Analysis
Arenas argues that his statements that he was in extreme pain from the bus accident and that it was difficult for him to concentrate and to defend himself provided compelling reasons for appointment of counsel to either represent him or assist him during trial. Arenas concedes that appointment of counsel would have likely necessitated a continuance. However, he contends the trial court should have appointed counsel based on a consideration of the totality of circumstances—including his severe pain, the difficulties he was having in receiving treatment and pain medication, the fact that it was not his fault the accident occurred when the trial was at an advanced stage, and the complexity of his case and tremendous sentencing exposure.
When considering a defendant's request to change from self-representation to counsel-representation, a trial court should "consider the totality of the circumstances in exercising its discretion." (People v. Lawley (2002) 27 Cal.4th 102, 149; People v. Gallego (1990) 52 Cal.3d 115, 164.) Relevant factors include the defendant's prior history in the substitution of counsel and changing from self-representation to counsel-representation, the reasons for the request, the length and stage of the proceedings, disruption or delay which might ensue from the granting of the motion, and the likelihood of defendant's effectiveness in continuing as his or her own attorney. (People v. Gallego, supra, at p. 164.) These factors " 'are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.' " (Ibid.)
Here, the trial court found that if counsel had been appointed, the ensuing need for a continuance would likely cause the loss of the jury and thus require the trial to start over. When Arenas made his request for an attorney, 16 prosecution witnesses had already testified during five trial days, and the prosecution was presenting its last witness (Officer Volm). After the accident on Thursday, the court had observed Arenas on Friday morning (when he was medicated and engaged in a lengthy discussion of the witness list) and on Monday morning (when he was not medicated and had cross-examined two witnesses). The court determined that he was able to concentrate during these proceedings. At the time of his request for counsel on Monday afternoon and Tuesday morning, Arenas had been provided with pain medication. After the court denied Arenas's request for counsel on Tuesday, on that same day Arenas conducted an extensive examination of Officer Volm, made a motion for acquittal, and examined seven of his own witnesses. On Wednesday and Thursday, Arenas examined 10 more witnesses, testified at length on his own behalf, and presented closing arguments.
Because of the late stage of the proceedings at the time of Arenas's request for counsel, the record supports the trial court's finding that a continuance to appoint counsel (whether to provide representation or advisory services) would likely have required the trial to start over because of problems with juror retention. Given the number of witnesses who had testified during five trial days, this would have imposed a significant burden on judicial resources and all those involved with the trial. Under these circumstances, the trial court could reasonably deny Arenas's request for counsel absent compelling circumstances showing his due process rights would be violated. The trial court was in the best position to observe any differences in Arenas's demeanor and concentration before and after the accident, and found none. We cannot second-guess this determination based on a cold record. Further, our own reading of the record, which shows Arenas's active participation in discussions and witness examination after the accident, supports the court's finding that his claims of pain did not hinder his ability to continue to represent himself.
Additionally, the trial court could reasonably infer that Arenas's repeated requests for a continuance before the accident, followed by his request for time off from trial and for counsel after the accident, reflected an overriding desire to delay the trial rather than a true inability to concentrate. The record reveals that throughout trial the court gave careful attention to Arenas's various motions and continually explained to Arenas issues and procedural matters that arose during his self-representation. It is apparent the court was cognizant of the need to protect Arenas's due process rights and consistently took measures to ensure a fair trial. Considering the totality of the circumstances, the trial court reasonably exercised its discretion to deny Arenas's midtrial request for counsel. Further, we are satisfied there was no violation of his constitutional rights.
II. Discharge of Juror
Arenas asserts the trial court erred when it discharged juror number 11 during trial.
The dismissal of juror number 11 occurred after Arenas's investigator informed the court that a juror had spoken to him during a lunch break on the fourth day of testimony. The investigator explained that when the juror started speaking to him, he immediately told her he could not talk with her. The juror nevertheless asked him the definition of "tripping" (a term which had been used during witness testimony). The investigator told her she had to ask the judge. The court noted that this was the same juror who had been nodding off during trial the previous day, at which time the court had spoken to her to ensure that she was awake. The court stated that it would bring the juror in for questioning, and if it was determined that she could still be impartial the court would admonish her that she had to follow the court's orders.
When the juror was brought into the courtroom, she confirmed the investigator's description of their interaction. The court told the juror that it was concerned about her nodding off the previous day, but noted there was no harm because it did not occur during testimony. The juror denied that she had been nodding off, but the court stated it had watched her carefully and saw the behavior on two occasions. The court asked the juror why she spoke with the investigator when she knew she was not supposed to discuss the case. The juror responded that she "did it on impulse" and she just wanted to know the definition of the term. After further admonishment from the court, the juror stated that she would not speak about the case again; she had not talked to anyone else about the case; and she could be impartial.
The juror was instructed to step outside the courtroom, and the trial court discussed the matter with the parties. The prosecutor wanted the juror to be excused, noting that she had violated a clear court order and she had tried to obtain information outside the evidence. Arenas wanted to retain the juror. The court ruled that there was good cause to dismiss the juror because she could not adequately perform her functions. The court cited the facts that she nodded off on two occasions and that she violated a court order not to discuss the case with anyone. The court noted the order not to discuss the case was given every time the jurors were dismissed and the jurors had repeatedly heard this order by this point in the trial. The court reasoned that given the juror's deliberate violation of the order, there was no way to ensure that she would not ask other people about the case.
A trial court has discretion to dismiss a juror if upon "good cause shown to the court [the juror] is found to be unable to perform his or her duty . . . ." (§ 1089; People v. Boyette (2002) 29 Cal.4th 381, 462.) The juror's inability to perform as a juror must appear in the record as a demonstrable reality. (People v. Boyette, supra, at p. 462.) We review the court's ruling for abuse of discretion, and uphold the ruling if there is any substantial evidence to support it. (Ibid.)
The record supports the trial court's dismissal of juror number 11. Jurors must follow the court's instructions to ensure a fair trial and a verdict rendered according to the law. At the commencement of trial, the court instructed the jurors: "[Y]ou must determine the facts from the evidence received in the trial and not from any other source. . . . [¶] . . . [¶] You must not independently investigate the facts o[r] the law or consider or discuss facts as to which there is no evidence. This means, for example, you must not on your own visit the scene, conduct experiments or consult reference works or persons for additional information. [¶] You must not converse among yourselves [except during deliberations], or with anyone else, including but not limited to, spouses, spiritual leaders or advisers, or therapists, on any subject connected with the trial. . . . [¶] . . . [¶] . . . During recesses, you must not discuss with anyone any subject connected with this trial." At trial breaks, the court repeated the instruction not to discuss the case with anyone.
Juror number 11 violated these instructions when she spoke to the investigator. Further, she did not engage in an innocuous communication about the case but rather spoke to a person clearly associated with one party and asked for information outside the evidence. This conduct violated important restrictions on juror contact and access to information designed to ensure a fair trial. The trial court reasonably concluded that her violation of the court's instructions showed that she was unable to properly perform her duties and should be discharged.
III. Sufficiency of the Evidence to Support Gun Discharge Enhancements
Arenas challenges the sufficiency of the evidence to support the jury's finding that he personally and intentionally discharged a firearm when he committed the assaults on the officers. (§ 12022.53, subd. (c).) He contends the evidence shows the discharge of the gun was an accident. The assertion is unavailing.
In evaluating the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the enhancement true beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
Although the jury could have credited Lopez's and Arenas's testimony that the gun discharged accidentally as Arenas was wrestled to the ground, it was not required to do so. The police officers consistently testified that Arenas tried to shoot directly at them, and that the bullet was deflected away from them because Lopez and/or Muniz wrestled with him as he shot the gun. The jury was entitled to credit the officers' testimony, and on appeal we defer to the fact-finder's credibility determinations.
IV. Sufficiency of the Evidence to Support Gang Enhancements
The prosecution charged gang enhancements for the firearm possession offense and the offenses associated with the standoff and shooting at the police (i.e., exhibiting a firearm in the presence of an officer, exhibiting a deadly weapon to an officer to resist arrest, resisting an officer, assaults on officers with a firearm, and grossly negligent firearm discharge). The jury found these enhancements true as charged. Arenas challenges the gang enhancement findings, contending the evidence does not show the offenses were for the benefit of the gang and were committed with the specific intent to promote the gang.
To establish the gang enhancement, the prosecution had to prove that the crime was (1) "for the benefit of, at the direction of, or in association with" a criminal street gang, and (2) that the defendant had "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) These elements essentially require that both the crime and the defendant's specific intent be "gang related." (People v. Gardeley (1996) 14 Cal.4th 605, 619, 621-622, 625, fn. 12.) A defendant's mere membership in the gang does not suffice to establish the gang enhancement. (Id. at pp. 623-624; In re Frank S. (2006)141 Cal.App.4th 1192, 1199 (Frank S.).) Rather, '' '[t]he crime itself must have some connection with the activities of a gang . . . .' " (Frank S., supra, at p. 1199.)
In Frank S., the court concluded there was insufficient evidence to support a finding that a minor possessed a concealed dagger for the benefit of his gang and with the specific intent to promote, further, or assist criminal gang behavior. (Frank S., supra, 141 Cal.App.4th at pp. 1195, 1199.) In Frank S., the minor told the authorities that he needed the knife for protection from a rival gang. (Id. at p. 1195.) The prosecution's gang expert opined that the minor possessed the knife for protection; that a gang member would use a knife for protection from rival gangs and to assault rival gangs; and that possession of the knife benefited the minor's gang by providing the gang members with protection should they be assaulted. (Id. at pp. 1195-1196.) Finding this evidence insufficient to support the gang enhancement, the court in Frank S. noted that there was no evidence "that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Id. at p. 1199.)
In contrast, in People v. Garcia (2007) 153 Cal.App.4th 1499, 1511-1512, the court found sufficient evidence to support a finding that the defendant possessed a loaded, unregistered firearm for the benefit of his gang and with the specific intent to promote, further, or assist the gang. In Garcia, the defendant was found with a gun hidden in his truck. (Id. at p. 1503.) The prosecution's gang expert testified that gang members often give guns for safe-keeping to gang members who are not on probation and are not subject to search. (Ibid.) The defendant gave the police information identifying gang members who were committing shootings and disclosing where they had hidden their guns. Further, the defendant stated the gun in his truck was given to him by another gang member for the defendant's protection after the defendant was shot. (Id. at pp. 1504-1507.) The Garcia court concluded that although the evidence might reasonably support a finding that the defendant possessed the gun only for his own protection, the evidence was sufficient to support the jury's finding that the weapon was possessed for the benefit of his gang. (Id. at p. 1512.)
As reflected in the Frank S. and Garcia decisions, to establish the gang enhancement there must be some evidentiary connection between the crime and the gang apart from the fact that the defendant is a gang member. In a case where a defendant/gang member commits a felony with another gang member, the jury can readily infer that the crime was in association with the gang and the defendant intended to promote the gang. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198; In re Ramon T. (1997) 57 Cal.App.4th 201, 204, 206-207 [gang enhancement supported by fact that minor, in association with two other gang members, assaulted police officer to free minor from officer's grasp].) In contrast, "the typical close case is one in which one gang member, acting alone, commits a crime." (People v. Morales, supra, 112 Cal.App.4th at p. 1198.)
Here, Arenas did not engage in criminal conduct in conjunction with other gang members but acted on his own. There was no evidence that he acted at the direction of, or in association with, the gang when he possessed the gun and engaged in the standoff/shooting with the police. Thus, to establish the requisite gang connection for the first element of the enhancement there must be evidence showing the offenses were for the benefit of the gang.
We first evaluate whether the record supports the gang benefit finding for the standoff/shooting offenses because our conclusion on this issue will inform our evaluation of the gang enhancement applied to the firearm possession offense. Officer Volm testified that Arena's use of the gun to engage in a standoff and to shoot at the police was for the benefit of the gang because these offenses showed the gang's recklessness and served to instill fear to prevent the community from calling the police. Significantly, the facts support a finding that Arenas engaged in the standoff/shooting because Gutierrez and Ruiz summoned the police. During the assault of the two women in the parking lot, Arenas explicitly threatened that if they called the police, he would engage in a shoot out. There was evidence from which the jury could infer that persons in the community knew that Arenas was a gang member. From this evidence, the jury could reasonably conclude that Arenas's gang membership was no secret, and that his conduct inside the restaurant was for the benefit of the gang because it conveyed a strong message to the community that gang members will not tolerate being reported to the police and are willing to take extreme responsive measures when the police are called regardless of any ensuing peril to innocent lives.
There is evidentiary support for a finding that Gutierrez, Ruiz, Adam, Lopez, Muniz, and Darlene knew about Arenas's gang connections. Gutierrez testified that Arenas told her he was a Black Angels gang member; Arenas referred to Ruiz as a "home girl" and to Darlene as "Joker's home girl" which suggested these women had a connection to the gang; Arenas and Adam discussed the "homeboys" reaction to the shooting; Arenas told Lopez that a "homeboy" was going to try to make an example of the situation; and Arenas told Muniz that he was trying to handle the incident "the gangster way."
Our holding is not meant to suggest that every time a single gang member engages in reckless criminal conduct, he or she is automatically subject to the gang enhancement even if the conduct is divorced from the gang's typical criminal behavior. Here, however, the reckless conduct was preceded by a threat designed to thwart a victim's call to the police, and was directed at the very persons who are charged with protecting the community from gang violence. Under these circumstances, the jury could reasonably find the offenses directed at the police were for the benefit of the gang because they served to maintain the gang's stranglehold on the community through means of an extreme response by a gang member when police are summoned by community members.
As to the firearm possession offense, Officer Volm testified that Arenas's possession of the gun was for the benefit of the gang's reputation because it indicated a gang member's readiness to commit crimes for the gang. Even if Arenas's possession of the gun, standing on its own, might not have been sufficient to show a gang connection, the requisite connection was sufficiently shown when viewed in context of his threat to use the gun if the police were summoned and his subsequent standoff and shooting at the police in the restaurant. Arenas's threat to use, and actual use of, the gun to intimidate and endanger the community established a factual nexus between the gun possession and gang activity to support the jury's finding that the gun possession was for the benefit of the gang.
The record also supports the jury's finding regarding the second element of the enhancement—i.e., that Arenas committed these offenses with the specific intent to promote, further, or assist the gang's criminal conduct. Although there was evidence that Arenas may have been afraid that the police were going to shoot him based on his past experience, the jury could rely on Arenas's postincident statements that he was "taking care of business" and that he did not surrender to find the requisite gang-related specific intent. From these statements, the jury could reasonably infer that Arenas armed himself with a gun and chose to stand off and shoot at the police because he wanted to enhance the gang's reputation by engaging in unyielding violence in the face of police confrontation. Arenas's statements provide sufficient evidentiary support for the specific intent element of the gang enhancement.
V. Imposition of Multiple Gang Enhancements
The trial court imposed gang enhancements on count 8 (assault on a peace officer with a semiautomatic firearm) and on count 1 (possession of a firearm by an ex-felon). (§ 186.22, subds. (b)(1)(A), (C).) Arenas argues that the trial court violated section 654's proscription against multiple punishment for an indivisible course of conduct by imposing the gang enhancement for both the assault and gun possession offenses. He asserts that for both gang enhancements, he had the single objective of benefiting his gang.
When a defendant sustains multiple convictions arising out of a single act or indivisible course of conduct, section 654 permits only one punishment for the defendant's conduct. (People v. Oates (2004) 32 Cal.4th 1048, 1062.) The purpose of section 654 is to insure that a defendant's punishment is commensurate with his or her culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) The issue of whether section 654 generally applies to enhancements has not yet been resolved by the California Supreme Court, and, as noted by our high court, the analysis of this issue by the lower appellate courts has not been consistent. (See People v. Palacios (2007) 41 Cal.4th 720, 728 (Palacios); People v. Coronado (1995) 12 Cal.4th 145, 157 (Coronado); see also People v. Oates, supra, 32 Cal.4th at p. 1066, fn. 7.) Some courts have concluded that section 654 prohibits multiple punishment for the same act regardless whether the violations are defined as offenses or enhancements, whereas other courts have determined that section 654 is inapplicable to enhancements because enhancements do not define an offense but relate only to the penalty to be imposed. (See People v. Arndt (1999) 76 Cal.App.4th 387, 394-395; People v. Reeves (2001) 91 Cal.App.4th 14, 55-56; People v. Martinez (2005) 132 Cal.App.4th 531, 535; compare People v. Price (1992) 4 Cal.App.4th 1272, 1277 with People v. Palmore (2000) 79 Cal.App.4th 1290, 1298.)
In two cases addressing section 654's applicability to enhancements, the California Supreme Court resolved the issue by analyzing the specific language of the enhancement statute (Palacios, supra, 41 Cal.4th 720) and by analyzing the nature of the particular enhancement (Coronado, supra, 12 Cal.4th 145). In Palacios, the court held there was no bar to imposition of three gun discharge enhancements under section 12022.53 based on the firing of one shot at a single victim during the commission of the three separately punishable offenses of attempted murder, kidnapping for robbery, and kidnapping for carjacking. (Palacios, supra, 41 Cal.4th at pp. 724, 726-728.) The court concluded the language of the enhancement statute evinced a legislative intent "to create a sentencing scheme unfettered by section 654." (Id. at p. 728.) In Coronado, the court held that section 654 did not bar use of a prior conviction to elevate an offense to a felony and use of the prison term resulting from the prior conviction to enhance the sentence. (Coronado, supra, 12 Cal.4th at p. 159.) The Coronado court based its holding on the distinction between enhancements that pertain to the nature of the offense and enhancements that pertain to the nature of the offender. (Id. at pp. 156-158.) The court concluded that a prior prison term enhancement, which was "attributable to the defendant's status as a repeat offender," did not constitute punishment for an "act or omission" within the meaning of section 654. (Coronado, supra, at p. 158.)
Section 12022.53 prescribes substantial sentence enhancements for using a firearm in the commission of certain listed felonies. (Palacios, supra, 41 Cal.4th at p. 723.) The Palacios court analyzed provisions in the statute stating that the enhancement should be applied " 'notwithstanding any other provision of law' "; stating that " 'one [enhancement] shall be imposed per person for each crime' "; and applying the enhancement to offenses already involving firearm use. (Id. at pp. 728-733.)
Unlike the statute at issue in Palacios, the gang enhancement statute at issue here (§ 186.22) does not contain any language illuminating the Legislature's intent relevant to section 654. Further, unlike the situation in Coronado, the gang enhancement statute punishes the defendant for his or her conduct associated with the current offense—i.e., whether the defendant committed a crime that was for the benefit of the gang. Thus, this is not a case that falls outside the purview of section 654 under the cases decided by the California Supreme Court. However, we need not decide the issue of the general applicability of section 654 to enhancements because, assuming its applicability, the record shows no error in imposing a gang enhancement for both the firearm possession and the officer assault offense.
The California Supreme Court has also held that multiple enhancements for crimes of violence against multiple victims, like multiple punishment for the underlying substantive offenses, are not barred by section 654 even if the defendant engaged only in a single act or indivisible transaction. (See People v. Oates, supra, 32 Cal.4th at pp. 1063-1066.) Because there was no violence against a victim associated with the firearm possession offense, the multiple-victim exception is not applicable to the gang enhancement imposed for this offense.
Whether a course of criminal conduct is divisible so as to allow multiple punishment under section 654 depends on whether the defendant had a separate criminal objective for each offense. (People v. Latimer, supra, 5 Cal.4th at p. 1208.) If the defendant " 'entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Akins (1997) 56 Cal.App.4th 331, 338-339.) When a defendant has an opportunity to reflect between offenses, the defendant's decision to continue a course of criminal conduct that creates a new risk of harm supports a finding that the defendant entertained separate criminal objectives. (People v. Kwok (1998)63 Cal.App.4th 1236, 1253-1257; see People v. Britt (2004) 32 Cal.4th 944, 952; People v. Latimer, supra, 5 Cal.4th at pp. 1211-1212.) This time-for-reflection principle may apply even when the multiple crimes share a common overall objective. (See People v. Harrison (1989) 48 Cal.3d 321, 338; People v. Trotter (1992) 7 Cal.App.4th 363, 368.)
Arenas does not dispute that he could properly be punished for both possession of the firearm and commission of the assault on the officer with the firearm. These two offenses involved both temporal and spatial separations, and reflected the distinct objectives of possessing the firearm and then using it against the officer. Likewise, the record supports the existence of distinct objectives with respect to the gang enhancements attached to the gun possession and assault offenses. Arena's gun possession commenced before he entered the restaurant. His gang-related motive was evinced when he was outside the restaurant and he threatened to use the gun if the women called the police, thereby advancing the gang's tactic of intimidating the community. After he made this threat, he had time to reflect on it and change the course of his behavior prior to the arrival of the police. Instead, he chose to escalate the situation by engaging in the standoff and shooting at the police, again displaying a gang motive through a violent response to police confrontation. Although Arenas's gun possession and officer assault offenses may have shared the same overall gang-related objective, the separation of time and location supports the existence of two distinct gang-related objectives—one, to enhance the gang's reputation when he possessed the gun outside the restaurant, and two, to further enhance the gang's reputation when he chose to engage in the assault inside the restaurant. There was no violation of section 654.
VI. Consecutive Sentences
The trial court selected count 8 (assault on an officer with a firearm) as the principal term. Based on a determination that the crimes involved separate acts or threats of violence, the court imposed consecutive sentences for count 1 (possession of a firearm by an ex-felon) and count 4 (assault with a firearm on victim Ruiz). Arenas argues the trial court imposed consecutive sentences based on facts that were not found by the jury beyond a reasonable doubt in violation of his jury trial rights under the Apprendi rule.
We reject the Attorney General's argument that Arenas has forfeited his right to raise the Apprendi issue because he did not raise it below. When Arenas was sentenced in 2006, the California Supreme Court had ruled in People v. Black (2005) 35 Cal.4th 1238, 1261-1264 (Black I) that consecutive sentences did not implicate the Apprendi rule. Based on Black I, it would have been futile for Arenas to raise this issue. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) After his sentencing, the Black I case was vacated by the United States Supreme Court, thus potentially calling into question its holding on the consecutive sentencing issue. (Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210].)
Under the Apprendi rule, a defendant has a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490; Blakely v. Washington (2004) 542 U.S. 296, 301; Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860] (Cunningham).) Under Apprendi and its progeny, the statutory maximum is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the United States Supreme Court abrogated the California Supreme Court's ruling in Black I, supra, 35 Cal.4th 1238 that the upper term was the statutory maximum. The Cunningham court held that the statutory maximum was the middle term because under California's sentencing scheme the trial court was required to select the middle term unless it found an aggravating fact that was not an element of the offense found by the jury. (Cunningham, supra, 127 S.Ct. at pp. 868-871.)
In response to Cunningham, effective March 30, 2007, the California Legislature amended section 1170, subdivision (b) to make the middle term a discretionary rather than presumptive term. (Stats. 2007, ch. 3, § 2; see People v. Sandoval, supra, 41 Cal.4th at pp. 845-847.)
After briefing was completed in the case before us, the California Supreme Court issued its opinion in the Black case upon remand after the Cunningham decision. (People v. Black (2007) 41 Cal.4th 799 (Black II).) In Black I, in addition to evaluating the upper term sentencing choice, our high court had concluded that a sentencing court's decision to impose consecutive rather than concurrent sentences did not implicate a defendant's Apprendi jury trial rights. (Black I, supra, 35 Cal.4th at pp. 1261-1264.) In Black II, the court re-evaluated this holding and concluded it was unaffected by Cunningham. (Black II, supra, 41 Cal.4th at pp. 820-823.) The Black II court reasoned that (1) a consecutive sentence does not equate with a lengthened sentence for an offense premised on facts that are the functional equivalent of elements of the offense, and (2) California's sentencing scheme does not create a presumption in favor of concurrent sentences so as to make a concurrent sentence the statutory maximum for purposes of triggering the Apprendi rule. (Black II, supra, at pp. 821-823.) Based on Black II, Arenas's Apprendi challenge to his consecutive sentences is unavailing.
VII. Sentencing Errors
After dismissing one of Arenas's two strike prior convictions, the trial court sentenced him to a total prison term of 64 years, four months. His sentence consisted of: (1) 14 years for count 8 (assault on an officer with a semi-automatic weapon; the middle term doubled for the strike prior), plus 20 years for the gun discharge enhancement and 10 years for a violent felony gang enhancement; (2) one year, four months for count 1 (possession of a firearm by an ex-felon; one-third the middle term, doubled), plus one year for the gang enhancement; (3) four years for count 4 (assault with a semi-automatic firearm, victim Ruiz; one-third the middle term, doubled), plus one year for the gun use enhancement; (4) 10 years for two prior serious felony convictions; and (5) three years for three prior prison terms. The sentences on the remaining felony counts and enhancements were imposed concurrently or stayed.
The Attorney General concedes (1) a sentencing error in the trial court's ruling, and (2) another sentencing error in the abstract of judgment. That is, the trial court erroneously sentenced Arenas to two (rather than one) five-year prior serious felony conviction enhancements (§ 667, subd. (a)(1)) because his two prior serious felony convictions were not brought and tried separately. Additionally, the abstract of judgment erroneously refers to four (rather than three) one-year prior prison term enhancements because only three such enhancements were charged and found true by the jury. (§ 667.5, subd. (b).)
Eliminating the erroneously-imposed five-year prior serious felony enhancement, Arenas's total sentence is 59 years, four months.
DISPOSITION
The judgment is modified to strike a five-year prior serious felony enhancement (§ 667, subd. (a)(1)). As so modified, the judgment is affirmed. The superior court is directed to correct the abstract of judgment to (1) remove a section 667, subdivision (a)(1) enhancement, (2) remove a section 667.5, subdivision (b) prior prison term enhancement, and (3) calculate the total sentence as 59 years, four months. The court shall transmit a copy of the corrected abstract of judgment to the Department of Corrections.
WE CONCUR: BENKE, Acting P. J., NARES, J.