Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FBA009638, Steve C. Malone, Judge.
Randy S. Travis for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), during which he used a handgun (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)), possession of a firearm by an ex-felon (§ 12021, subd. (a)(1)) and discharge of a firearm in a school zone (§ 626.9, subd. (d)). The jury further found that all three offenses had been committed to benefit a criminal street gang (§ 186.22, subds (b)(1)(A) & (C)) and defendant had inflicted great bodily injury while discharging a firearm in a school zone. In bifurcated proceedings, the trial court found defendant had suffered a prior conviction for which he served a prison term, based on defendant’s admission. (§ 667.5, subd. (b)) Defendant was sentenced to prison for 21 years. He appeals claiming the trial court misinstructed the jury about matters of which it took judicial notice in relation to the gang enhancement allegations, insufficient evidence supported the gang enhancement and great bodily injury true findings, his admission of his prior was taken without adequate advisements and waivers and sentencing error occurred. We reject all his contentions, save the sentencing one. As to that, we agree with defendant that the sentencing court violated section 654 by imposing enhancements for his use of a firearm and for his infliction of great bodily injury, while, at the same time, relying on both of those facts to impose a greater gang enhancement than it could have absent those facts. We therefore affirm the convictions, the true findings and the sentences for the convictions and the findings, except for the sentences imposed for the findings attached to the assault with a firearm. As to those, we reverse and remand the matter to the trial court to resentence defendant in a manner consistent with the views expressed in this opinion.
All further statutory references are to the Penal Code unless otherwise indicated.
We commend appellate counsel for defendant for raising and thoughtfully examining some very interesting issues that criminal law professors would delight in including on final exams.
Facts
On July 9, 2005, defendant, a gang member, along with others, confronted the victim, a probable member of a rival gang, and two other probable fellow members, as the latter were walking in territory which defendant’s gang claimed. After a verbal exchange, one of defendant’s companions handed him a gun and defendant shot twice, hitting the ground near the victim and his associates. The victim turned and ran, but was hit twice by bullets. More facts will be discussed in relation to the issues addressed.
Issues and Discussion
1. Gang Enhancement Findings
a. Judicial Notice and Instructions
In order to return its true findings that all three offenses had been committed for the benefit of a gang, the jury had to find, inter alia, that members of the gang engaged in or have engaged in a pattern of gang activity, which required, in part, the conviction of carjacking, murder, vehicle theft or possession of a controlled substance for sale, at least one of which occurred after September 26, 1988, and the most recent of which occurred within three years of one of the earlier crimes, and on separate occasions or by two or more persons.
Pursuant to a written request by the People, the trial court took judicial notice that a person whom the detective testified was a fellow gang member of defendant’s and was convicted by jury of carjacking; another was convicted by jury of murder; another pled guilty to unlawfully taking a vehicle, and a fourth pled guilty to possessing a controlled substance for sale, all of which had occurred between August 1, 1996 and April 11, 2001. The trial court informed the jury that the facts that these people had been convicted of or had pled guilty to these crimes, on the dates specified, committed on the dates specified, were “deemed conclusive[,]” “established” and “[t]here’s no dispute as to that.” The trial court later instructed the jury, concerning these facts and a stipulation entered into by the parties, “[These] are established facts. They are not in dispute. When you make your decision, you should conclude those facts are established.”
Defendant did not object below to the trial court taking judicial notice of the convictions suffered by these four people nor of the court’s instructions to the jury concerning them. However, for the first time on appeal, he objects to the instructions, claiming they were improper and they “effectively” directed a verdict as to the gang enhancement allegations. He does not object to the trial court taking judicial notice of the convictions. Indeed, he is correct in this regard. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1228 [opinion of this court].)
The trial court and the parties discussed this, and other matters raised in the People’s trial brief and motions in limine, in chambers, then placed that discussion on the record. That memorialization was as follows,
Defendant claims the instructions were improper because they directed the jury to consider as factually true that these four people had been convicted of the crimes specified, on the dates specified. Yet, Evidence Code section 457 provides, “If a matter judicially noticed is a matter which would otherwise have been for determination by the jury, the trial court may, and upon request shall, instruct the jury to accept as a fact the matter so noticed.”
The basic logical fallacy of defendant’s contention was made clear in People v. Barre (1992) 11 Cal.App.4th 961. Therein, the defendant was charged with petty theft, having suffered a prior conviction for petty theft with a prior. (Id. at p. 963.) The trial court informed the jury, “ . . . [T]he court does take judicial notice that this defendant was convicted on December 13th, 1989 [of petty theft with a prior] . . . . [¶] . . . [¶] The court does take judicial notice of that fact of that conviction.” (Id. at p. 964.) The appellate court construed the foregoing as the trial court “determin[ing conclusively] . . . [that] the prior-conviction allegation [was] true and it was no longer a fact to be determined by the jury.” (Id at p. 966.) Thus, even though the trial court in Barre did not utter the words defendant here finds objectionable, the appellate court resolved the case as though it had. We fail to see how lay jurors, when confronted with facts which have been judicially noticed, would have a basis upon which to treat them any differently from facts which have been judicially noticed and about which the trial court instructs have been proved conclusively. Indeed, in Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564, the appellate court commented, “It is the consequence of judicial notice that the ‘fact’ noticed is, in effect, treated as true for purposes of proof.”
In light of defendant’s failure below to object to the trial court taking judicial notice of the prior convictions and to the instructions on it, his statement here that if the trial court had just taken judicial notice of the priors “then there would not have been a violation of [his] rights”, and the fact that jurors would not reasonably react any differently to judicially noticed facts without the instructions with which defendant takes issue than they would to the same facts with such instructions, we conclude that the trial court did not err in giving the instructions it did.
However, assuming that the instructions were erroneous, the error does not require reversal of the gang enhancement findings. “ . . . [A]n instructional error that improperly . . . directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution.” (People v. Flood (1998) 18 Cal.4th 470, 503 (Flood).) In Flood, as here, the instruction at issue went to one of several elements. The California Supreme Court held, “Unlike the deficient reasonable doubt instruction in Sullivan [v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078]], which undermined each and every finding underlying the guilty verdict, the . . . instruction in the present case affected only one aspect of one of the eight elements of the offense . . . . [T]he trial court’s instruction . . . was based on overwhelming and uncontradicted evidence, and defendant has made no attempt, either in the trial court or on appeal, to argue that the [fact was not so]. . . . [T]he instructional error . . . did not prevent defendant from presenting evidence concerning a contested element of the crime. . . . The trial court’s removal of the uncontested [element] from the jury’s consideration cannot be considered to have rendered defendant’s trial fundamentally unfair or prevented the trial from reliably serving its function as the means for determining defendant’s guilt or innocence. Nor did the trial court’s action affect the framework within which the trial proceeded. [¶] . . . [¶] [N]othing in the record suggests that [defendant] objected to the trial court’s [instruction to the jury]. Defendant never referred to this element of the crime during the trial and did not argue to the jury that the prosecution had failed to prove this element beyond a reasonable doubt; indeed, he did not ask that the issue even be considered by the jury. Furthermore, defendant presented no evidence regarding [that] element, and failed to dispute the prosecution’s evidence regarding the issue. . . . [I]n our view, defendant’s actions described above are tantamount to a concession [of the fact]. [¶] Furthermore, . . . there is no reasonable or plausible basis for finding that the instructional error affected the jury’s verdict. The verdict demonstrates that the jury resolved every contested issue in favor of the prosecution . . . [D]efendant does not (and could not) contend that he lacked notice of the element or that he did not have a full opportunity to present any evidence relevant to the issue. Finally, . . . all of the evidence at trial relevant to the issue in question indicated that [the fact was true], and thus there is no rational basis upon which the instructional error could have affected the jury’s verdict. Given all of these circumstances, we are satisfied that the record establishes beyond a reasonable doubt that the trial court’s instructional error on the peripheral . . . issue did not contribute to the jury’s guilty verdict and thus must be found harmless under the Chapman [v. California (1967) 386 U.S. 18 [87 S.Ct.824]] standard.” (Id. at pp. 503-505.)
Defendant relies on Sullivan in arguing that the error here was structural and requires reversal per se.
As the People correctly point out, one of the convictions was admitted at trial by its perpetrator, who testified for the prosecution. There was no evidence that any of these convictions had not occurred precisely as reported to the jury. Although he had notice of the allegations, defendant failed to present evidence at trial to contradict that judicially noticed information. Defendant did not, below, and does not here even assert that the information is incorrect. He failed, at trial, to object to the taking of judicial notice of the priors and the trial court’s instructions as to the effect of that. Except for the charge of attempted murder, the jury resolved every contested issue in favor of the prosecution. Thus, as in Flood, we conclude that any error that occurred in the giving of the instructions about the judicially-noticed information was harmless beyond a reasonable doubt.
Defendant concedes that we are bound by Flood, but he argues that Flood was incorrectly decided.
b. Sufficient Evidence
Defendant contends there was insufficient evidence that defendant’s gang “has, as one or more of its primary activities, the commission of [c]arjacking, [m]urder, [v]ehicle [t]heft, or [p]ossession of a [c]ontrolled [s]ubstance for [s]ale . . . [¶] . . . [¶] In order to qualify as a primary activity, the crime must be one of the g[ang]’s chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the g[ang].”
The prosecution’s gang expert, a police detective, testified that his main experience was dealing with gangs and he dealt with gang members almost on a daily basis for 34 years in Barstow. He said defendant’s gang had been in Barstow since the early 1980s, he had had contact with them then, he had personally had contact with the majority of the 30-40 members at the time of the crimes and had “handled many serious crimes where [self-admitted] members [of the gang ] have been identified as the suspects in those . . . crimes.” He testified that defendant’s gang claims the area within which the shooting occurred. When asked what is the primary activity of the members of the gang, he responded, “It’s sales of controlled substances, it’s violence, attacking other gang members and certain individuals in the community. They’ve been known--engaged in murders to claim their territory, possession [for] sales of narcotics, stolen vehicles, intimidation.” As already discussed, the trial court took judicial notice of the conviction of four people, whom the expert identified as members of the gang, for carjacking, murder, unlawfully taking/driving a vehicle and possessing a controlled substance for sale. The expert said that he had investigated the murder for which defendant’s fellow gang member had been convicted and was aware that another specified member of the gang had been convicted of murder. When asked how the 30-40 individuals he said were active in the gang at the time of these crimes act in concert so as to be considered a gang, he responded, “[T]he . . . definition of a gang is three or more individuals that band together to commit certain type offenses, and those offenses are listed . . . in the Penal Code. . . . [T]hey have an object . . . . [¶] . . . [I]t’s the officer[s’] contacts with these individuals. . . . [O]ther officers . . . contact individuals, and ask them, ‘ . . . What group are you with?’ Those individuals will identify themselves as being part of . . . whatever gang[] . . . they belong to. And then the officers share that information amongst themselves and the detectives by filling out gang cards or what we call ‘field interrogation cards’ . . . . [¶] . . . [T]he detectives share the information . . . . [¶] [Law enforcement is] always interested if you have a drive-by . . ., you have an assault, you have a fight, you have a rape, you have someone that’s alleged to be selling controlled substances. [Police officers in the field and detectives] share the information and we try to get a name, a moniker, and what gang they’re with. [¶] So, based on that, the sharing of the information, we sort of keep a running tab of who’s active, who’s not, who’s gone to jail, who’s on parole, who’s on probation, who’s associated with whom.” When asked if he recognized the difference between a group that is organized for criminal purposes as opposed to a collection of people who commit crimes separately “in a separate capacity[,]” he said, “ . . . [T]he gang . . . would be this group of individuals that their primary purpose is to commit certain crimes. . . . That, in my mind, is a . . . criminal street gang. He repeated that the commission of murder or attempted murder is one of the primary activities of defendant’s gang. However, he had no statistics, “from [sic] going back from 2005,” as to how many murders were attributable to that gang. On redirect examination, the prosecution’s expert repeated that defendant’s gang’s “primary purpose is to commit certain crimes, and there’s several crimes that are outlined in the Penal Code[.]”
Barstow is a fairly small, isolated town.
Contrary to the assertion in defendant’s reply brief, the expert did not testify in the reporter’s transcript at page 398 or anywhere else that the last such crime he investigated was in the early 2000’s.
Defendant relies on the following language in People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith), citing People v. Gardeley (1996) 14 Cal.4th 605, 620 (Gardeley), “Sufficient proof of the gang’s primary activities might . . . be expert testimony, as occurred in [a case in which] . . . a police gang expert testified that the gang . . . was primarily engaged in the sale of narcotics and witness intimidation . . . . The gang expert based his opinion on conversations he had with [the defendant] and fellow gang members, and on ‘his personal investigation of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies.” However, defendant fails to assert how this is substantially different than the testimony of the prosecution’s expert in this case. Defendant also frequently ignores the fact that both Gardeley and Sengpadychitch consider the requirement of expert testimony as an alternative to evidence that the group’s members consistently and repeatedly have committed criminal activity listed in section 186.22.
Defendant’s assertion that the expert “did not discuss . . . whether ‘the commission of one or more of the statutorily enumerated crimes [was] one of the group’s “chief” or “principal” occupations.’” This is belied by the record.
Defendant takes issue with the fact that the expert had no statistics, “from [sic] going back from 2005,” as to the number of murders the gang had committed. However, taking defendant’s interpretation of this testimony, i.e., that the expert had no statistics concerning the number of murders the gang had committed since 2005, that matter would be irrelevant, as the determination whether the gang fits within the definition of section 186.22 depends, as defendant, himself, concedes, on what has occurred or was occurring at the time of the crimes.
Contrary to defendant’s assertion, the fact that the expert testified that he “had not seen [the gang] very active until” around the time of the crimes does not undermine his oft-repeated opinion about their primary activities. He went on to state that before the time of these crimes, he could only recall crimes occurring in the late 1990’s or early 2000’s and he attributed this lack of activity to the fact that many members were in prison. He went on to testify that they were subsequently released and returned to the gang, whose younger members now looked up to them because they had been to prison, thus, reinvigorating the gang. Moreover, as long as there was sufficient activity at the time of the crimes, which can include the current offenses (People v. Duran (2002) 97 Cal.App.4th 1448, 1465), it cannot be said that the requirement has not been met. (Sengpadychith, supra, 26 Cal.4th at p. 323.)
Nor does the fact that the crimes, of which the trial court took judicial notice, occurred between August 1996 and April 2001.
Defendant asserts that the expert’s opinion cannot be based on “nonspecific hearsay and arrest information” and “vague, second-hand testimony.” However, these matters did not form the basis for the expert’s opinion. As Gardeley and Sengpadychith held, the expert’s conversations with gang members, his investigation of crimes involving gang members, and information from colleagues were proper bases for his opinion. Additionally, a gang member’s involvement with law enforcement does not have to result in convictions (In re Leland D. (1990) 223 Cal.App.3d 251, 258) and reliance by the expert on field identification cards was proper. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)
2. Great Bodily Injury True Finding
The victim was hit with a .25-caliber bullet in the right buttock and with another in the leg a few inches above his right ankle. After being hit, he continued to run to his girlfriend’s apartment, then the two walked to her mother’s house. He was taken to the hospital by ambulance and remained at the hospital for three hours, where he was seen by a doctor, had the wounds cleaned, was X-rayed and given some pain pills. A few days later, he popped out the bullet that had entered above his ankle when a “blood blister” formed near it. Later, he went to the hospital for an hour to have this blister drained. The bullet in his buttock remained there because, the victim said, removing it “might cut [his] nerve or something.”
Defendant contends the foregoing was insufficient to prove that the victim suffered great bodily injury. It was defined for the jury as “significant or substantial physical injury” and “greater than minor or moderate harm.”
“ . . . [T]he determination of great bodily injury is essentially a question of fact, not of law. “‘If there is sufficient evidence to sustain the jury’s finding . . ., we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.’” [Citations.]” (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar).)
Although defendant correctly asserts that the injury inflicted must be more than of the sort routinely associated with assault with a firearm, he also acknowledges that such an assault does not require an injury of any kind. Defendant candidly acknowledges that whether the victim’s injuries were great is such a fact-specific determination that discussion of other opinions, unless the victims were injured nearly identically to the victim here, is not particularly helpful. We agree.
In support, he cites People v. Wallace (1993) 14 Cal.App.4th 651, which he attributes to this court. In fact, Wallace is an opinion of District One, Division Three.
In People v. Mendias (1993) 17 Cal.App.4th 195, the victim’s upper thigh was hit with a .22-caliber bullet. (Id. at p. 201.) The victim hunched over, but did not fall. (Ibid.) The wound “burned.” (Ibid.) The victim ran, but fell down when he rounded a corner and was thereafter unable to walk, reporting that it hurt and burned. (Ibid.) He was taken to the hospital and treated there, but released the next day. (Ibid.) The bullet was not removed, but was not painful as it remained in the victim’s body, where it moved about. (Ibid.) The appellate court concluded this was sufficient evidence to sustain the jury’s finding of great bodily injury.
In People v. Lopez (1986) 176 Cal.App.3d 460, the appellate court applied the more stringent requirements embodied in People v. Caudillo (1978) 21 Cal.3d 562 (Caudillo), which were later overturned in Escobar. One of Lopez’s victims had been shot in the “right cheek of the hip” and felt nothing except hitting the ground, but was disoriented and screamed. (Lopez, supra, at pp. 462, 465.) The other victim had been shot “through and through” in the left leg. (Ibid.) Although she felt “fire” in her leg, she was able to pull the first victim, a man, to safety. (Ibid.) There was no evidence that either victim sought or received medical aid. (Id. at p. 463, fn. 5.) The appellate court upheld the jury’s finding of great bodily injury. (Id. at p. 465.)
Finally, in People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott), also decided before Escobar, the victim was hit in the calf with a bullet, which fragmented and cut the victim’s arms and legs. (Wolcott, supra, at p. 97.) A doctor removed one of the fragments from the victim’s arm, which had penetrated about one inch, but left the other five or six to work themselves out naturally. (Id. at p. 107.) The victim felt pain if touched near the fragments. (Ibid.) The victim lost little blood and no sutures were required. (Ibid.) He returned to work the next day. (Ibid.) Concluding that the injuries were more substantial than those in Caudillo, the appellate court held, “in as much as some [bullet] fragments remain in his body the injury is not a ‘short-lived’ or ‘transitory’ one.” (Wolcott, supra, at p. 108.)
Here, as in Wolcott, the fact that the bullet to the victim’s right buttock remained there supported the jury’s finding that the injury was not minor or moderate. While we acknowledge that the victim did not, like in the cases cited, mention the pain he experienced, other than to say he was given pain pills at the hospital, we also note that it is clear, even from the cold record before us, that he was extremely embarrassed about receiving the wound to his buttock. Moreover, because he was probably a member of a gang, he could not be expected to elaborate on the extent to which the wound hurt him. Therefore, the jury could reasonably infer from the nature of the wounds, and the fact that he was prescribed pain medication, that they were, indeed, painful, even hours after they were inflicted. Thus, there was substantial evidence to support the jury’s finding.
3. Defendant’s Admission of the Priors
The Information alleged, as to count 3 (ex-felon in possession of a firearm), that defendant had previously been convicted in case number FBA06196 of violating Health and Safety Code section 11377, subdivision (a) in February 2001 and in case number FBA05434 of violating section 417, subdivision (c) in March 2001. Both of these prior convictions were alleged in connection enhancements under section 667.5, subdivision (b). Before trial began, the following colloquy occurred, in the presence of defendant,
“THE COURT: We’ve had priors alleged in the information. One issue is we have a felon in possession of a firearm that’s alleged as [c]ount . . . 3, and I understand there’s going to be a stipulation that will read[,] simply[, “T]he defendant has suffered a prior felon[y] conviction[,”] or words to that effect.
“[THE PROSECUTOR]: . . . I’ll prepare such a stipulation.
“[DEFENSE COUNSEL]: That’s correct. [¶] . . . [¶]
“THE COURT: Mr. Brown, the benefit of that [is that] . . . the jury . . . [is] not going to know what the convictions are or how many. . . . [¶] . . . [¶] The People are tending to prove the felony, bring in the copies of the prison records and go through a long disclosure of what your past criminal history is. This way has the least minimal effect on you as possible. Then what we’ll do is if you are found not guilty, that covers it. If the jury does come back to the verdict of guilt as to any Counts, then we’ll have to see a second trial in front of the jury regarding the question of, one, whether or not you were convicted and what those convictions were. [¶] The jury would have to find whether or not they believe those are true. Then we have a new case called Cunningham . . . . The Cunningham case . . . says I, as a judge, cannot sentence you to the aggravated [term] based on my own decision what . . . aggravating factors exist. The jury is the one that’s going to have to make a finding whether or not they believe the aggravating factors exist. [¶] In that second trial, if you will, what we’ll do is present any priors plus we’ll have to come up with a list of . . . what aggravating factors apply, and we’ll argue the second round to the jury whether or not those factors apply. Basically, we’re having two trials.” Defendant acknowledged he understood this.
Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856].
During trial, defendant and the People stipulated that defendant “was previously convicted of a felony as it applies to [c]ount 3.” During jury deliberations, the trial court stated that there was a stipulation, “As to case number FBA 50424, Penal Code section 417, date of conviction March 1st, 2001, . . . that . . . defendant served a term of imprisonment and did not remain free of custody during a period of five years subsequent to that term[.]” When asked if he joined in the stipulation, defense counsel said, “ . . . [A]fter discussing this with my client, we will stipulate to that . . .; is that correct, Mr. Brown?” The defendant responded, “Yes . . . .” During sentencing, the trial court noted, without objection from the defense, that defendant had admitted the section 667.5, subdivision (b) allegation and it imposed a term based on that finding.
The parties agree that defendant admitted the allegation without first being advised of and waiving his rights, which is a violation of state law. (People v. Howard (1992) 1 Cal.4th 1132, 1174, 1175.) They disagree on whether reversal of the finding and term imposed for it are required because they disagree whether the record affirmatively shows that it was voluntary and intelligent under the totality of the circumstances. (Ibid.)
“ . . . [A]n appellate court must go beyond the courtroom colloquy to assess a claim [that proper advisements have not been given]. [Citation.] . . . [I]f the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of ‘the entire proceeding’ to assess whether the defendant’s . . . admission of the prior conviction was intelligent and voluntary in light of the totality of the circumstances.” (People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby).) In People v. Hinton (2006) 37 Cal.4th 839, 875, footnote 12 (Hinton), the California Supreme Court rejected the defendant’s contention that the failure to advise him of his rights to jury trial, to confrontation, to call witnesses and against self incrimination did not render his admission of the truth of a prior murder conviction special circumstance not voluntary and intelligent. There, the defendant said he had discussed the admission with his attorney and understood its effect and consequence, he was aware of all these rights in connection with other special circumstance allegations and was about to exercise them, and he had been present when the trial court told the jury that if defendant was found guilty of first degree murder, the jury would be asked to determine if any of the special circumstances are true.
People v. Christian (2005) 125 Cal.App.4th 688, which defendant cites, was authored before Hinton. Contrary to defendant’s suggestion, it was not a “truly silent record” case, for which Mosby requires reversal because the defendant there was advised of his right to jury trial. It was clearly an “incomplete advisal” case and the appellate court concluded, on facts different from those here (most notably, that the defendant did not sit through a jury trial and witness all the rights that flowed therefrom), that knowledge and waiver of the rights could not be inferred.
The defendant here was clearly informed that he had a right to a jury trial as to all the priors before trial of the charged offenses began. When he admitted one of the section 667.5, subdivision (b) allegations, he did so after having sat through a jury trial, during which he exercised his right not to incriminate himself, his attorney confronted and cross-examined the witnesses against him and he was aware of his ability to call witnesses on his behalf. Additionally, defendant’s other prior was the result of a guilty plea. Therefore, the record demonstrates that his admission was voluntary and intelligent.
Specifically, defense counsel told the trial court in defendant’s presence, “. . . [A]fter discussing the possibility of testifying with my client, we’ve discussed it at length and my client has decided that he does not wish to take the stand and testify on his own behalf. Is that correct, Mr. Brown?” Defendant replied, “Yes . . . .”
The fact that he was aware of his ability to testify in his own behalf (see fn. 12, ante) indicates this.
4. Sentencing
Defendant was sentenced to the midterm for his conviction of assault with a firearm. To that term was added a four-year enhancement for use of a handgun, a three-year enhancement for inflicting great bodily injury and a 10-year enhancement for committing the crime for the benefit of a gang. Defendant here contends that his 10-year gang enhancement must be stayed pursuant to section 654 because it was based on his use of a firearm and infliction of great bodily injury, for which his sentence was also enhanced. He correctly points out that he received a 10-year, rather than a five-year enhancement under section 186.22, subdivision (b)(1)(C) because he inflicted great bodily injury and used a firearm. (See §§ 186.22, subds. (b)(1)(B) & (C); 667.5, subd. (c)(8).) Had neither of these findings been made, he would only have received a five-year gang enhancement. (§§ 186.22, subd. (b)(1)(B) & 1192.7, subd. (c)(31).)
The parties agree that the California Supreme Court has yet to determine whether section 654 is applicable to enhancements other than those provided for by section 12022.53. However, years ago, this court made the decision that it is (People v. Moringlane (1982) 127 Cal.App.3d 811, 818, 819 (Moringlane)) and that decision has served as a foundation for our more recent holdings on the subject. (People v. Akins (1997) 56 Cal.App.4th 331, 338 (Akins); People v. Douglas (1995) 39 Cal.App.4th 1385, 1392 (Douglas) [“‘ . . . [I]t is now well-accepted that section 654 applies to enhancements.’ [Citation.]”
The applicability of section 654 to section 12022.53 enhancements was determined in People v. Palacios (2007) 41 Cal.4th 720, 728. The parties also recognize that the precise issue presented here is currently pending before the California Supreme Court in People v. Rodriguez(2007) 157 Cal.App.4th 14, review granted March 12, 2008, S159497.
We note that mention of Moringlane, Akins and Douglas is missing from the People’s discussion of this issue. Unfortunately for his position, appellate counsel for defendant fails to mention the latter two decisions.
Having concluded, consistent with our earlier opinions, that section 654 applies, it necessarily follows that defendant cannot have his enhancement for assaulting the victim for the benefit of his gang further enhanced based on his use of a firearm and infliction of great bodily injury while, at the same time, have his sentence for assault enhanced for using a firearm and inflicting great bodily injury.
We do not agree with the People’s argument that such a conclusion undermines the purpose of section 186.22, which was to impose severe penalties on gang-related felonies. If the trial court ultimately chooses to impose the section 186.22 enhancement, and stay the firearm use and infliction of great bodily injury enhancements, defendant will be imprisoned, by virtue of the gang enhancement, for more than three times the length of the sentence for the assault. If the trial court elects to impose a five-year term for the section 186.22 enhancement and add to it four years for defendant’s use of a firearm and three years for inflicting great bodily injury, defendant will be separately punished for each enhancement found by the jury and will serve four times the term for the assault for them. Either way, defendant will be punished for committing the crime to benefit his gang and his total sentence will be a severe penalty when compared to the term for the offense.
Defendant states that this would be appropriate.
Defendant states that this would also be appropriate.
At defendant’s urging, we will remand the matter to the trial court to permit it to choose one of the alternatives discussed above.
Disposition
The convictions, true findings and the sentences for assault with a firearm and for the prison prior are affirmed. The sentences based on the true findings that the crime was committed for the benefit of a gang, that defendant used a handgun and that he inflicted great bodily injury are reversed. The matter is remanded to allow the trial court to resentence defendant on those enhancements in a manner consistent with the views expressed in section four of this opinion.
We concur: RICHLI, J. MILLER, J.
“THE COURT: We talked about judicial notice of priors.
“[THE PROSECUTOR]: Yes.
“THE COURT: So certainly judicial notice of prior court records, certified records is admissible . . . .” The record before us does not disclose at what point, and under what circumstances, the instructions the trial court gave the jury concerning these priors were discussed by the parties and decided upon by the trial court. However, the record before us contains no objection by defense counsel either to the fact that the court below took judicial notice or to the instructions it gave the jury concerning it.