Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super.Ct.No. INF053482
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant Benjamin Henry Brown.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant Joe Batan Henderson.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Melissa Mandel and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
Defendants Benjamin Henry Brown and Joe Batan Henderson invaded the tunnel in which Henderson’s ex-girlfriend and two male transients were living. Brown, who was holding a knife, took money from the two men and handed some of it to Henderson. Both Brown and Henderson, who was wielding a metal rod, forced the ex-girlfriend to leave and to go to Henderson’s apartment. As a result, both defendants were convicted on two counts of robbery; Henderson was convicted of felony false imprisonment, and Brown was convicted of misdemeanor false imprisonment.
Henderson has appealed, arguing:
1. There was insufficient evidence that Henderson aided and abetted the two robberies by Brown.
2. There was insufficient evidence that Henderson used the metal rod in the commission of a crime to support a deadly or dangerous weapon use enhancement.
3. The trial court erred by denying Henderson’s posttrial motion to strike his “strike” prior.
4. Once the trial court imposed a prior serious felony enhancement based on a 1992 conviction, it erred by imposing a prior prison term enhancement based on a 1995 conviction that was served concurrently.
Brown, too, has appealed, raising no specific arguments, but invoking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493].
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. The Prosecution’s Case.
Estela Guillen lived with defendant Henderson for two or three months in the summer of 2005. He asked her to stay at his apartment, because he “didn’t want [her] to be on the street.” He indicated that he would be away for a while, attending some kind of program, so she would have it to herself. Because she wanted “to get out of the heat,” she accepted.
Thereafter, they became “a couple.” Henderson told Guillen that he loved her and wanted to marry her; he gave her a ring. After two or three weeks, however, he began to hit her and to threaten to kill her. Around September, she moved out.
As of February 8, 2006, Guillen was living in a tunnel in Cathedral City, along with Armando Macias Leal (Macias) and Wilfrido Cruz Santiago (Cruz). All three were admittedly methamphetamine users. Around 9:00 p.m., they went to sleep.
They were awakened by defendants Henderson and Brown. Brown was holding a folding knife. Henderson was holding a metal rod, bar, or tube. They both told the victims not to move.
Henderson told Guillen, “Get up. Get your stuff. We’re going.” She said, “[N]o.” They continued to argue. She was crying.
Henderson told Brown “to watch [them],” and “if [they] got up[,] to hurt [them] . . . .” Accordingly, Brown stood guard over Macias and Cruz, holding them at knifepoint and threatening to hurt them if they moved.
Brown asked, “Do you have drugs?” Cruz responded, “[N]o, I don’t have any. Do you know where I can get some?” Brown said, “[Y]es.” Cruz then handed Brown $20 and said, “[C]an you get me $20 [worth] of drugs?” At trial, he explained that he did this in hopes that it would get defendants to leave. Instead, Brown said, “[O]h, you’ve got money, have you? Let me see your wallet[.]” Cruz gave it to him. Brown took out all the money, about $70. He handed some of it to Henderson.
Brown then demanded Macias’s wallet. Macias gave it to him. Brown took out all his money, another $70. He showed it to Henderson, remarking, “[L]ook, these fuckers are full.” Brown also took Macias’s flashlight and gave it to Henderson.
Brown told Guillen, “Let’s go, or I’m going to fuck these guys up.” Guillen then said, “No, no, don’t hurt them. I’ll go with you guys.” As they were leaving, both defendants threatened to kill the victims if any of them called the police. Nevertheless, after they left, Cruz walked to a store and called the police.
Defendants put Guillen into a van and drove off. When they stopped at a gas station, Brown went inside to pay. Guillen wanted to talk to Brown. Henderson hit her and said that, if she turned against him, he would kill her. After Brown got back in, she asked if they were going to kill her, and Henderson said, “Yes.”
Brown dropped Henderson and Guillen off at Henderson’s apartment. Once inside, Henderson hit her some more and threatened her. Eventually, he went out to buy more drugs. He said that if she left, he would kill her. He also said that Brown was outside, watching her. She stayed because she was afraid. While Henderson was out, she went to sleep. When he returned, he showed her the methamphetamine he had purchased, and she used some.
Meanwhile, around 1:00 or 2:00 a.m., Cruz led police to an apartment in Cathedral City, where he believed that defendants lived. The police knocked on the door, but there was no response.
Around 5:00 a.m., the police returned to the apartment. This time, a van was parked outside. They found Brown in the back of the van, asleep on the floor. On the floor next to him, they found an open folding knife. He was in possession of $21 and some change.
The police then knocked at the apartment door again. This time, Henderson opened it. He immediately said, “[S]he’s okay,” and began calling Guillen by name. Guillen was crying hysterically. A metal rod matching the description given by Guillen was found in Henderson’s apartment.
When the police first interviewed Guillen, she said that she did not hear defendants make any threats. However, she did tell them that she left with defendants “because she was afraid her friends were going to get hurt . . . .” She also told police that she did not want defendants prosecuted, because she was afraid of them, and she did not believe the police could protect her.
B. The Defense Case.
Two of Henderson’s neighbors testified that Guillen appeared to be still living at Henderson’s apartment up until the time he was arrested. They saw her all the time, even when Henderson was not home. After he was arrested, she came and took “bags of stuff” out of the apartment.
When Henderson was arrested, however, he told police that Guillen was “homeless” and living in the tunnel.
While Henderson was in jail, Guillen asked an acquaintance who was going to jail to give Henderson her phone number and ask him to get in touch with her.
Henderson’s sister testified that, two or three weeks before trial, Macias phoned her and said he had some “expensive information with respect to [Henderson].” She said she did not have any money. He said he would call her again later, but he never did.
II
PROCEDURAL BACKGROUND
Both defendants were found guilty on two counts of second degree robbery. (Pen. Code, §§ 211, 212, subd. (c).) On count 3, which charged both defendants with simple kidnapping (Pen. Code, § 207, subd. (a)), Henderson was found guilty of the lesser included offense of felony false imprisonment; Brown was found guilty of the “lesser lesser” included offense of misdemeanor false imprisonment (Pen. Code, §§ 236, 237, subd. (a)).
With respect to Brown, in connection with the two robbery convictions, an enhancement for the personal use of a deadly or dangerous weapon, to wit, a knife (Pen. Code, § 12022, subd. (b)(1)), was found true. Brown was sentenced to a total of five years four months in prison, plus four months to be served in prison or in jail.
With respect to Henderson, in connection with the false imprisonment conviction, an enhancement for the personal use of a deadly or dangerous weapon, to wit, a metal rod (Pen. Code, § 12022, subd. (b)(1)), was found true. One strike prior (Pen. Code, §§ 667, subds. (b)-(i), one prior serious felony enhancement (Pen. Code, § 667, subd. (a)), and four 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) were also found true. Henderson was sentenced to a total of 13 years in prison.
III
THE SUFFICIENCY OF THE EVIDENCE THAT HENDERSON WAS GUILTY OF ROBBERY AS AN AIDER AND ABETTOR
Henderson contends that there was insufficient evidence to support his conviction of robbery from Cruz and Macias (counts 1 and 2).
“To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict — i.e., evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357, quoting People v. Maury (2003) 30 Cal.4th 342, 403 and People v. Bolin (1998) 18 Cal.4th 297, 331.) It was Brown who held Macias and Cruz at knifepoint, who demanded their wallets, and who took the money from them. Henderson therefore argues that he could be found guilty of robbery, if at all, only on an aiding and abetting theory. The trial court did, in fact, instruct the jury on aiding and abetting. (Judicial Council of California Criminal Jury Instructions (CALCRIM) Nos. 400, 401, 1603.)
The trial court did not instruct the jury on the natural and probable consequences doctrine. (See generally People v. Prettyman (1996) 14 Cal.4th 248, 254, 260-265.) Accordingly, we do not consider whether Henderson’s conviction could be upheld on this theory. (See People v. Flynn (2000) 77 Cal.App.4th 766, 771.)
“‘[A]n aider and abettor is a person who, “acting with (1) knowledge of the unlawful purpose of the perpetrator[,] and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.”’ [Citation.]” (People v. Jurado (2006) 38 Cal.4th 72, 136, quoting People v. Prettyman, supra, 14 Cal.4th at p. 259, quoting People v. Beeman (1984) 35 Cal.3d 547, 561.)
“[M]ere ‘presence at the scene of a crime or failure to prevent its commission [is not] sufficient to establish aiding and abetting.’ [Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 1024, quoting People v. Stankewitz (1990) 51 Cal.3d 72, 90.) “However, ‘[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409, quoting In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)
Henderson argues that there was insufficient evidence that (1) he knew that Brown intended to commit a robbery, or (2) he did anything to promote Brown’s commission of a robbery. He claims that he went to the tunnel solely to try to get Guillen to leave with him, not to rob anyone. Indeed, according to Henderson, there is no evidence that Brown intended to commit a robbery — at least until Cruz fortuitously handed him $20 in a misconceived effort to get defendants to go away.
This overlooks the fact that, after Brown took money from Cruz’s wallet, defendants “divided the money up between themselves. They split the money.” Moreover, after Brown took Macias’s flashlight, he handed that, too, to Henderson. Henderson’s unhesitating participation in divvying up the loot supports the inference that he was a party to a preconceived plan to rob the victims.
Henderson therefore argues that Cruz’s testimony that defendants split the loot was not credible, because none of the victims had mentioned this to the police. However, Cruz was not the only witness who testified to this; Guillen did, too. Moreover, the officers did not testify that they specifically asked any of the victims about this. In any event, any conflict in the evidence merely raised a factual issue for the jury to resolve.
Henderson also argues that he had no reason to suppose that the victims — transients living in a tunnel — had any money to take. As regular drug users, however, they were likely to have either drugs or money for drugs. Indeed, Brown asked the victims for drugs before he asked them for money; inferably, defendants’ main plan was to take their drugs, and only incidentally to take any other valuables they might have.
Finally, Henderson also argues that there was no evidence that he was found with any money, and Brown was found with only about $21. The evidence, however, showed that in the meantime, Brown bought gas for the van, and Henderson bought drugs.
In any event, separately and alternatively, even assuming that Brown first formed the intent to commit robbery when Cruz took out the $20, Henderson could join in a robbery by aiding and abetting it at any time before the loot reached a place of temporary safety. (People v. Pulido (1997) 15 Cal.4th 713, 723.) He did so by keeping Guillen under his control, and thus preventing her from either helping the other victims or escaping. He also did so by threatening to kill the victims if they called the police, and by transporting some of the loot away from the scene on his person.
We therefore conclude that there was sufficient evidence that Henderson was guilty of robbery as an aider and abettor.
IV
THE SUFFICIENCY OF THE EVIDENCE THAT HENDERSON USED A WEAPON
Henderson contends that there is insufficient evidence to support the deadly or dangerous weapon use enhancement (Pen. Code, § 12022, subd. (b)(1)) to count 3 (false imprisonment).
Macias and Cruz both testified that Henderson was holding a metal rod in his right hand; however, he did not wave it around or threaten anyone with it.
Guillen testified that Henderson was holding a metal rod “when he was yelling at [her].” She agreed that he did not “wave” it at anybody. However, she also testified that he did “threaten” her with the rod: “[I]n the tunnel when everything would happen and that would make him upset he would raise his hand with it.”
Officer Bucklin, who had interviewed Guillen, testified that she told him that “she did not hear any threats . . . regarding the . . . metal bar.”
Under Penal Code section 12022, subdivision (b)(1), a one-year enhancement applies to “[a]ny person who personally uses a deadly or dangerous weapon in the commission of a felony . . . .” Henderson does not dispute that the metal rod could be found to be a deadly or dangerous weapon. He argues, however, that there was insufficient evidence that he used the rod.
“In order to find ‘true’ a section 12022(b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. [Citations.]” (People v. Wims (1995) 10 Cal.4th 293, 302-303.) “The obvious legislative intent to deter the use of [deadly and dangerous weapons] in the commission of the specified felonies requires that ‘uses’ be broadly construed.” (People v. Chambers (1972) 7 Cal.3d 666, 672 [construing Pen. Code, § 12022.5].)
“By employing the term ‘uses’ instead of ‘while armed’ the Legislature requires something more than merely being armed. [Citation.]” (People v. Chambers, supra, 7 Cal.3d at p. 672.) Accordingly, case law distinguishes “use” from “mere possession” (People v. Granado (1996) 49 Cal.App.4th 317, 326, 329) or “passive display” (People v. Hays (1983) 147 Cal.App.3d 534, 548). “The litmus test for the distinction is functional: did the defendant take some action with the [weapon] in furtherance of the commission of the crime? If so the [weapon] was ‘used’ . . . . If, on the other hand, the defendant engaged in no weapons-related conduct, or such conduct was incidental and unrelated to the offense, no ‘use’ occurred . . . . [Citations.]” (Granado, at p. 324, fn. 7.)
For example, in People v. Hays, supra, 147 Cal.App.3d 534, during the commission of a robbery, the defendant had a rifle either “slung across [his] chest” or “strapped over his shoulders.” (Id. at p. 539.) There was no evidence that he held it in his hands or “display[ed] it in a menacing manner.” (Id. at p. 544.) The court held that the defendant “was ‘armed with’ the rifle during the robbery but there is no evidence to support a finding of ‘use.’ To hold otherwise would eliminate the distinction between ‘armed’ and ‘use,’ a distinction the Legislature clearly intended to make.” (Id. at p. 549.)
By contrast, in People v. Granado, supra, 49 Cal.App.4th 317, the defendant demanded money from the victims. When they did not comply, he pulled a gun out of his waistband. “Holding the gun in front of himself, but without pointing it at anyone, [the] defendant persisted in demanding money . . . .” (Id. at p. 320.) When one of the victims appeared to be about to give him money, he put the gun back in his waistband. (Id. at p. 321.)
The appellate court upheld a personal firearm use enhancement. It explained that use requires “a facilitative, gun-related act” but does not require “express threats.” (People v. Granado, supra, 49 Cal.App.4th at p. 325.) “[I]f the defendant is found on substantial evidence to have displayed a firearm in order to facilitate the commission of an underlying crime, a use of the gun has occurred both as a matter of plain English and of carrying out the [legislative] intent . . . . Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption . . . .
“Here there was no reasonable explanation for defendant’s conduct other than a desire to facilitate the crime. After the victims ignored his initial demands for money, he removed the gun from his waistband, repeated his demands, and returned the gun to his waistband. This was not conduct incidental to possession. The most obvious explanation, indeed the only apparent one, was a deliberate display, intended to convey menace, for the purpose of advancing the commission of the offense. [Citation.] This was sufficient to establish ‘use’ . . . .” (People v. Granado, supra, 49 Cal.App.4th at p. 325.)
The People point out that Henderson had “armed himself with a large, heavy, metal object which had no other apparent purpose other than to be used as a weapon.” This seems to miss the point that use requires something more than arming, possession or passive display. We may assume, without deciding, that merely holding a metal bar during the commission of a crime — even with the intention of intimidating the victims — would not constitute use. In this case, however, there was more. Guillen testified that, whenever Henderson got upset, he raised the rod and threatened her with it. She explained, “[I]t is a threat when you raise a certain item like that and you approach the person.” This was a sufficient “facilitative . . . act” to distinguish Henderson’s use of the rod from mere arming.
Admittedly, Macias and Cruz testified that Henderson did not threaten anyone with the rod. However, Macias admitted that he was focused on Brown’s knife; inferably, neither Cruz nor Macias was paying much attention to Henderson. Guillen’s testimony that Henderson made a threatening gesture with the rod was perfectly consistent with her statement to Officer Bucklin that “she did not hear any threats . . . regarding the . . . metal bar.” (Italics added.) In any event, if there were any conflicts in the evidence, they merely raised a factual question for the jury to resolve.
We therefore conclude that there was sufficient evidence to support Henderson’s deadly or dangerous weapon use enhancement.
V
ROMERO MOTION
Henderson contends that the trial court erred by denying his Romero motion.
A “Romero motion” is a motion to dismiss a strike prior in the interest of justice under Penal Code section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
A. Additional Factual and Procedural Background.
In Henderson’s case, one strike prior was alleged and found true. At sentencing, there was this discussion:
“[HENDERSON’S COUNSEL]: What I’m recommending, your Honor, is that the Court in its discretion strike the prior strike.
“THE COURT: Can’t. That’s automatic[ally] reversible. I need good cause.”
Henderson’s counsel then argued that the victim-witnesses in the present case lacked credibility. The trial court responded:
“THE COURT: Strike the strike prior because you think the witnesses[’] credibility is less than great?
“[HENDERSON’S COUNSEL]: Yes, your Honor.
“THE COURT: Maybe we should add that to the Rules of Court. I don’t think that’s one of the factors the Court — the nature of the case I can look at.”
B. Analysis.
In Romero, the Supreme Court held that a trial court has discretion to dismiss three-strikes prior felony conviction allegations under Penal Code section 1385. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) The touchstone of the analysis is “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 and People v. Preyer (1985) 164 Cal.App.3d 568, 573, respectively.)
Preliminarily, Henderson asserts that the trial court “never directly ruled on his motion.” Not so. As the portion of the record quoted above shows, the trial court denied it.
Henderson then argues that his motion should have been granted, because (1) his strike prior was remote, (2) most of his other prior convictions were drug related, and (3) in the current offense, he was “not a direct participant,” and the victims were not physically injured. He failed to argue any of these grounds below and hence has forfeited them for purposes of appeal. Admittedly, after the trial court had already denied the Romero motion, Henderson’s counsel did argue that Henderson’s prior convictions were drug related, and that what really happened in the tunnel was a drug deal gone bad (i.e., the victims lied). However, he concluded, “[I]f the Court looks at it in that light, . . . those are mitigating factors in terms of perhaps . . . imposing the lower term . . . rather than the mid term.” Plainly, he was not arguing these as grounds for granting the Romero motion; he was arguing them as grounds for selecting the lower term.
Finally, even if these arguments had been properly raised in the trial court, it would not have been required to grant the Romero motion. Henderson’s criminal record dated back to 1980, when he was 21 and was convicted of carrying a concealed firearm, a misdemeanor. (Pen. Code, § 12025, subd. (a).) Six years later, in 1986, he was convicted of spousal abuse, his first felony. (Pen. Code, § 273.5.) Six years after that, in 1992, he was convicted of the strike prior, a robbery. (Pen. Code, § 211.) Although his strike prior was somewhat remote, he had multiple subsequent felony convictions. Thus, “[h]e did not refrain from criminal activity during that span of time, and he did not add maturity to age.” (People v. Williams, supra, 17 Cal.4th at p. 163.) It is true that most of these subsequent convictions were for possession of drugs. (Health & Saf. Code, § 11377.) However, they also included unlawful taking or driving of a vehicle. (Veh. Code, § 10851.) In any event, “‘drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.’ [Citation.]” (People v. Cuevas (2001) 89 Cal.App.4th 689, 704, quoting People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) His record was further marred by repeated parole and probation violations. This recidivist criminal history record placed Henderson squarely within the spirit as well as the letter of the three strikes law.
We therefore conclude that the trial court properly denied Henderson’s Romero motion.
VI
THE IMPOSITION OF A PRIOR PRISON TERM ENHANCEMENT BASED ON HENDERSON’S 1995 CONTROLLED SUBSTANCE CONVICTION
Henderson contends that the trial court erred by imposing a prior prison term enhancement based on his 1995 conviction for possession of a controlled substance, because he did not serve that prison term separately.
A. Additional Factual and Procedural Background.
The information alleged that Henderson had a number of prior convictions, including the following:
1. A 1992 conviction for robbery (Pen. Code, § 211), which was alleged as:
a. A strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12);
b. A five-year prior serious felony enhancement (Pen. Code, § 667, subd. (a)); and
c. A one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
2. A 1995 conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), which was alleged as a one-year prior prison term enhancement.
At the hearing on the prior conviction allegations, the evidence showed the following: In 1992, in the robbery case, Henderson was initially placed on probation. In 1995, in the controlled substance case, he was sentenced to 16 months in prison. Thereafter, in 1996, his probation in the robbery case was revoked, and he was sentenced to five years in prison, to be served concurrently.
The trial court found the 1992 conviction true. It acknowledged, however, that it could not use the 1992 conviction as both a prior serious felony enhancement and a prior prison term enhancement. Accordingly, it struck the allegation that the 1992 conviction was a prior prison term enhancement. It then ruled — over defense counsel’s objection — that, because it was not using the 1992 conviction as a prior prison term enhancement, it could use the 1995 conviction as a prior prison term enhancement, even though the two convictions had been served concurrently.
Accordingly, at sentencing, the trial court used the 1992 conviction both as a strike and as a five-year prior serious felony enhancement; it used the 1995 conviction as a one-year prior prison term enhancement.
B. Analysis.
Under Penal Code section 667.5, subdivision (b), subject to conditions not applicable here, the trial court must impose a one-year enhancement “for each prior separate prison term” that the defendant has served. (Italics added; see also id., subd. (e).) Accordingly, if two prior prison terms were served concurrently, the trial court can impose only one prior prison term enhancement. (People v. Jones (1998) 63 Cal.App.4th 744, 747; People v. English (1981) 116 Cal.App.3d 361, 372-373.)
If one of the priors is a serious felony, however, the trial court is free to use it as a prior serious felony enhancement, while using the other as a prior prison term enhancement, even though they were served concurrently. (People v. Irvin (1991) 230 Cal.App.3d 180, 189-190; People v. Medina (1988) 206 Cal.App.3d 986, 989-992; People v. Vaughn (1989) 209 Cal.App.3d 398, 402-403.)
Defendant essentially argues that these cases are no longer good law in light of People v. Jones (1993) 5 Cal.4th 1142. Jones held that a single prior conviction cannot be the basis of both a prior serious felony enhancement and a prior prison term enhancement. (Id. at p. 1150.) It relied on former Penal Code section 667, subdivision (b), which provided, “‘This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.’” (Jones, at p. 1149.) The court read this as implying the converse — i.e., that, if another provision of law applied, but would not result in a longer term of imprisonment, then Penal Code section 667 applied to the exclusion of the other provision. It also reasoned that, under a contrary rule, almost every defendant who is subject to a five-year prior serious felony enhancement would also be subject to either a three-year prior violent felony prison term enhancement (Pen. Code, § 667.5, subd. (a)) or a one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b); “five-year enhancements [would] become [six-year or] eight-year enhancements in all but a very few cases.” (Jones, at p. 1150.)
As Henderson candidly acknowledges, however, his present argument was rejected in People v. Gonzales (1993) 20 Cal.App.4th 1607. There, the defendant’s prior convictions included convictions for:
1. An unspecified felony;
2. Spousal abuse (Pen. Code, § 273.5, subd. (a)); and
3. Possession of a controlled substance in jail or prison (Pen. Code, § 4573.6). (People v. Gonzales, supra, 20 Cal.App.4th at p. 1610.)
The terms for spousal abuse and for possession of a controlled substance had been served concurrently. Nevertheless, based on these three convictions, the trial court imposed two prior serious felony enhancements and two prior prison term enhancements. (People v. Gonzales, supra, 20 Cal.App.4th at p. 1610.)
The appellate court held that, under Jones, the unspecified felony could not be the basis of both a prior serious felony enhancement and a prior prison term enhancement. (People v. Gonzales, supra, 20 Cal.App.4th at p. 1610.) However, it further held that the spousal abuse conviction could be used as a prior serious felony enhancement, and the controlled substance conviction could be used as a prior prison term enhancement, even though the two terms had been served concurrently: “Jones does not preclude imposition of the [Penal Code] section 667.5 one-year enhancement . . . . Each of these cases . . . provides an independent basis for the . . . prior prison [term] allegation . . . . Each case involves a separate crime, which was committed separately and brought and tried separately. . . . Thus, under the circumstances presented here, imposition of a one-year enhancement for the . . . prior prison [term] allegation . . . does not result in Gonzales improperly suffering two enhancements for [the spousal abuse conviction].” (Id. at pp. 1610-1611.)
Henderson argues that Gonzales was wrongly decided because it was inconsistent with Jones. We disagree. As long as the prior serious felony enhancement and the prior prison term enhancement are based on two different convictions in two different cases, the Jones court’s concern that a single prior conviction might be the basis for “piling on” is not implicated. We also note that a number of subsequent cases have unanimously come to the same conclusion as Gonzales. (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1040-1041; People v. Ruiz (1996) 44 Cal.App.4th 1653, 1667-1669; People v. Brandon (1995) 32 Cal.App.4th 1033, 1055; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1303-1304.)
We therefore conclude that the trial court properly imposed both a prior serious felony enhancement based on the 1992 robbery conviction and a prior prison term enhancement based on the 1995 controlled substance conviction.
VII
BROWN’S WENDE APPEAL
Brown appealed, and at his request this court appointed counsel to represent him. His counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and any potential arguable issues and requesting this court to undertake a review of the entire record. We offered Brown an opportunity to file a personal supplemental brief, which he has not done. Having concluded our independent review of the record, we find no arguable issues.
VIII
DISPOSITION
The judgments are affirmed.
We concur: RAMIREZ, P.J., MILLER, J.