Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F00661
HULL, J.Following a joint trial before separate juries, defendants Leonard Allen Clark and John Andrew Hearne were convicted of burglary (Pen. Code, § 459; further undesignated section references are to the Penal Code), robbery (§ 211), two counts of oral copulation (§ 288a, subd. (d)), two counts of rape in concert (§ 264.1), sodomy (§ 286, subd. (d)), and sexual battery (§ 243.4, subd. (c)). In addition, various enhancements relating to the use of a firearm (§§ 12022, subd. (a), 12022.53, subd. (b), 12022.3, subd. (a), 667.61, subd. (e)(4)) and commission of the offenses during a burglary (§ 667.61, subd. (e)(2)) were found true. Both defendants were sentenced to an aggregate unstayed prison term of 48 years plus a consecutive indeterminate term of 25 years to life.
They appeal. Defendant Clark contends the trial court erred in admitting evidence of an uncharged offense and in instructing the jury on the use of such evidence. Defendant Hearne contends the trial court impermissibly relied on the same fact to impose a one strike sentence and an enhancement.
We reject Clark’s contentions but agree with Hearne that the trial court improperly relied on the same gun-use factor to support two separate sentence enhancements. We also conclude this error applies to both defendants. We shall strike the four-year enhancement on count 3 as to both defendants but otherwise affirm the judgments.
Facts and Proceedings
In August 2005, A.F. was living with her four-year-old son in an apartment near the intersection of Walerga Road and Elkhorn Boulevard in Sacramento County. During the early morning hours of August 15, A.F. was in the kitchen of her apartment making lunch for the next day and her son was in the living room watching television. Just as A.F. finished preparing lunch, she noticed an African-American male outside her apartment. He was dressed all in black, wore gloves and had a bandanna over the lower part of his face. She also saw another African-American male jump over her patio fence and begin forcing her patio door open. This second man was also dressed in black and wore gloves and a ski mask. He was tall and slim, whereas the other man was shorter and stockier. The shorter man had a half circle scar near his right eye, which A.F. could see above his bandanna.
While A.F. held onto her son, the taller man forced open the patio door and entered the apartment. He pointed a handgun at A.F., walked to the front door and opened it for the shorter man. The shorter man entered the apartment. He was also armed with a handgun. The men told A.F. to be quiet and not scream and threatened to kill A.F. and her son if she did not comply. They also told A.F. to put cartoons on the television for her son, which she did.
While the taller man searched the apartment and asked A.F. where she kept money, the shorter man walked her to the bathroom. When A.F. reached the bathroom, she saw that the shorter man was holding his penis. He commanded her to touch it, which she did. He then pulled down his pants and told A.F. to “suck it.” She orally copulated him. A.F. began gagging, and the man turned her around and penetrated her anus with his penis. When A.F. started screaming because of the pain, he put his penis into her vagina instead. She believes he eventually ejaculated inside her.
After the shorter man finished with A.F., he ordered her to take off her clothes, take a bath and wash her vagina “very well.” A.F. took a shower but did not use soap.
After A.F. dried herself off, the taller man took her into her bedroom. There, he told A.F. to “suck it, ” and she orally copulated him. He then put a condom on and penetrated her vagina with his penis. He eventually ejaculated while inside A.F.
The two men took money they found in the apartment and some groceries. As they departed through the front door, the men threatened A.F. with death if she told anyone what had happened.
About five minutes after the men departed, A.F. called her aunt and then grabbed her son and fled to her aunt’s home. When she arrived, A.F. was trembling, crying and was “very bad emotionally.” A.F. said two men had come into her home and raped her. A.F.’s aunt called 911.
A.F. was taken to the U.C. Davis Medical Center for a sexual assault examination. The results of the exam were consistent with A.F.’s report of what had happened.
After obtaining keys from A.F., Deputy Patrick Walker drove to her apartment and went in with her. He examined the patio door and found fresh pry marks. The master bedroom of the apartment appeared to have been ransacked. It appeared someone had rifled through a vanity, a makeup case appeared to have been dumped out, all dresser drawers were open with the clothes moved around, and several purses were found on a closet floor.
After all leads were exhausted, the police put the case in pending status. However, the following year, DNA from a sperm sample taken from A.F. was run through an offender database and a match was found to an individual named John Finch, which was an alias for defendant Hearne. Hearne has a scar near his right eye.
Around the time of the offense, Tina T. was friends with Hearne. In fact, she later dated him and they got engaged to be married in October 2005. At the same time, defendant Clark was living with Tina as her adopted son. Clark and Hearne worked together at a local moving company. Christina M. saw Clark and Hearne hanging out together at an apartment where she lived. Hearne was at that apartment when he was arrested for this crime.
In May 2007, while Hearne was in the county jail, he met with a man and asked if DNA evidence from a sexual contact can remain inside a woman after she takes a shower. In a telephone conversation with a woman the following month, he asked essentially the same question.
At about the time of Hearne’s arrest, Clark was already in custody in connection with another matter (to be discussed later). In December 2006, Detective Sophia McBeth-Childs interviewed Clark in jail. During the interview, Clark acknowledged having been in A.F.’s apartment. Clark claimed he met A.F. in June and she later picked him up and took him to her apartment where they had sex.
Clark and Hearne were charged with burglary, robbery, sodomy, sexual battery, and two counts each of oral copulation and rape in concert. They were tried jointly before separate juries.
The Clark jury alone heard evidence about another home invasion robbery committed by defendants on the evening of August 15, 2005, less than 24 hours after the A.F. home invasion. P.G. was home alone sleeping when she awoke and saw shadows outside her bedroom door. She grabbed the phone and called 911. However, two men walked into the room and one of them grabbed the phone and hung it up. One of the men was tall and lean, while the other was shorter and stockier. They both had guns.
The men took P.G. into the kitchen and asked where she kept money. She took cash out of her handbag and gave it to them. The shorter man asked where there was more money, and she gave him her credit cards. They also took her handbag, cell phone and car keys and drove away in her car. There was no sexual assault.
P.G. later selected Hearne from a photographic lineup as the shorter man. Clark pleaded guilty to one count of robbery in connection with this incident.
The defense presented the testimony of two upstairs neighbors of A.F., a mother and daughter, who testified that they were awake in the early morning hours of August 15 and did not hear any screaming or other noise from A.F.’s apartment.
Counsel for both defendants argued to the jury that their clients did not commit a home invasion at A.F.’s apartment. They acknowledged their clients had had sex with A.F. at some time, but claimed it was consensual. Counsel for Hearne further argued A.F. thought she had lost her engagement ring and made up a story about a home invasion in order to cover for it.
Clark and Hearne were convicted on all charges. On the robbery count, both defendants received the middle term of four years plus a 10 year enhancement for use of a firearm, with those terms stayed pursuant to section 654. On the burglary count, they also received the middle term of four years, this time with a one-year enhancement. These terms too were stayed pursuant to section 654. On the two rape-in-concert counts, the sodomy count, and one of the oral copulation counts, defendants received full consecutive terms of seven years, plus enhancements of four years for firearm use. On the sexual battery count, they received the middle term of two years plus a one-year enhancement, with those terms to run concurrently. Finally, on the other oral copulation count, defendants received a one-strike sentence of 25 years to life, to run consecutively to the aggregate determinate term of 48 years.
Both defendants appeal.
Discussion
I
Uncharged Offense Evidence
Defendant Clark contends the trial court erred in admitting evidence of the uncharged home invasion of P.G. The prosecution moved in limine to admit the evidence to prove motive, intent and identity. Clark requested that the evidence be excluded as unduly prejudicial and not sufficiently similar to the charged offenses. The trial court concluded the two crimes were sufficiently similar to rule out being random acts. The court then weighed potential prejudice against probative value and found the evidence admissible under Evidence Code section 352. We agree the evidence was properly admitted.
Evidence Code section 1101, subdivision (a), prohibits the admission of character evidence, including evidence of specific instances of uncharged offenses, to prove the conduct of a person on a particular occasion. Notwithstanding this prohibition, evidence of uncharged offenses may be admitted when relevant to prove some fact in issue, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or consent. (Evid. Code, § 1101, subd. (b).) The admissibility of evidence of uncharged offenses under this section depends upon the fact sought to be proven and the degree of similarity between the charged and uncharged offenses. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) Greater similarity is needed to prove a common design or plan than to prove intent, whereas the greatest degree of similarity is needed to prove identity. (Ibid.) “On appeal, we review a trial court’s ruling under Evidence Code section 1101 for abuse of discretion.” (People v. Gray (2005) 37 Cal.4th 168, 202.)
Although the prosecution indicated it was introducing evidence of the P.G. home invasion in order to prove intent, motive and identity, intent and motive were never at issue. Both defendants argued to the jury that the sex with A.F. was consensual. However, there was no evidence to support this argument. Clark told investigators during an interview that he had been in A.F.’s apartment and had sex with her on one occasion. However, this purportedly occurred in June 2005, two months before the home invasion. And even if Clark was wrong about the date, he never testified that he was in the apartment with Hearne and they both had consensual sex with the victim. Hearne’s counsel argued that his client had been in a consensual sexual relationship with A.F. However, there was no evidence presented at trial to support this assertion.
The evidence was presented against Clark alone. In his motion seeking to exclude the evidence, Clark argued there is no physical evidence linking him to the alleged robbery and sex offenses. In his opening statement to the jury, Clark’s attorney did not claim consensual sex but instead asserted there was no evidence placing his client at the scene of the crime. Hence, at the time of the court’s ruling, the defense was not claiming consensual sex but that, if there was a crime, Clark was not involved.
The prosecution presented evidence of a forced entry into A.F.’s residence, robbery and forcible sex offenses by two African-American males, one of whom was tall and slim while the other was shorter and stockier. The defense presented evidence that A.F.’s upstairs neighbors heard nothing during the time of the alleged home invasion, suggesting no crime had in fact occurred.
This was not a case where the defendant was found in possession of the victim’s property and claimed it had been given to him by the victim rather than stolen. Nor was this a case where there was evidence suggesting the defendant had engaged in sex with the victim and he claimed the sex was consensual. In this case, once the jury got past the question whether there had been a home invasion at all, the only issue was the identity of the perpetrators. Hearne’s DNA found on a vaginal swab taken from the victim clearly put him at the scene of the crime. In addition, Hearne has a scar near his right eye like that of the shorter intruder, and, after his arrest, Hearne asked two different people if DNA evidence could remain on a rape victim after she takes a shower.
But there was less clear evidence identifying Clark as the taller intruder. Clark matched the general description of the other intruder, and the prosecution presented evidence that Clark and Hearne hung out together. The prosecution also had Clark’s interview statements admitting he had been in the victim’s apartment and had engaged in sex with her on a prior occasion. The uncharged offense evidence helped to further place Clark with Hearne at A.F.’s apartment at the time of the offenses.
As noted above, the highest degree of similarity between the charged and uncharged offenses is needed to admit uncharged offense evidence on the issue of identity. “‘To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. [Citation.] Evidence of an uncharged crime is relevant to prove identity only if the charged and uncharged offenses display a “‘pattern and characteristics... so unusual and distinctive as to be like a signature.’” (People v. Carter (2005) 36 Cal.4th 1114, 1148.)
Clark contends the present matter is comparable to People v. Haston (1968) 69 Cal.2d 233 (Haston). In Haston, Donald McDowell and Odell Haston were charged with three armed robberies at department stores. The robberies occurred between November 1964 and April 1965 and took place when the stores were closed but while employees were still on the premises. In each case, the robbers wore masks, held the employees captive, enlisted other employees to help in gathering currency, and fled with the loot. McDowell pleaded guilty to three counts of robbery and Haston was tried alone. The primary issue at trial was the identity of the other robber with McDowell. On this issue, the prosecution was permitted to present evidence about two restaurant robberies committed by Haston and McDowell in 1962. (Id. at pp. 238-239.)
On Haston’s argument that the uncharged crimes evidence was not properly admitted, the Supreme Court agreed the circumstances of the two sets of crimes were not sufficiently similar to warrant admission. According to the court: “[T]here exist a number of similarities between [Haston]’s prior offenses and the charged offenses. For example, all of such offenses were committed when the establishment in question was closed for business but employees were nevertheless present. All were committed by two armed Caucasian men of middle height who wore handkerchiefs over their faces. In each the robbers entered the particular place of business by means of a door normally used as an employees’ entrance and exit and during the course of the robbery forced one or more employees to lie face down on the floor. In none of the robberies was an employee physically injured, although jostling, pushing, or kicking took place, apparently for the purpose of enforcing compliance with the robbers’ orders. In each case one of the robbers seemed principally concerned with holding employees at bay, while the other appeared involved with obtaining money from the safe. [¶] We do not think that any of these ‘common marks’ [citation] is of that distinctive nature necessary to raise a logical inference that the perpetrators of the prior offenses bearing such marks were the perpetrators of the charged offenses. [Citation.] It is common knowledge that each and all of the indicated marks are shared not only by the charged and uncharged crimes herein involved, but also by very many armed robberies.” (Haston, supra, 69 Cal.2d at pp. 247-248, fns. omitted.)
Clark contends Haston is directly on point with the present matter. He argues the similarities between the uncharged offenses committed against P.G. and the charged offenses committed against A.F., i.e., they were both home invasions committed by two African-American males and the offenses occurred close in time, are insufficient to allow admission. This argument, of course, ignores other similarities, such as the fact both offenses occurred in the middle of the night, the victim’s were women living without a male companion, the heights and builds of the perpetrators were similar, and both perpetrators used handguns and wore gloves and masks.
Clark argues the most glaring difference between the offenses was that, “[t]he focus of the A.F. home invasion was the sexual assaults, ” whereas the focus of the P.G. home invasion was robbery.
But Clark ignores a significant similarity between the two sets of offenses as well as the rest of the Supreme Court’s analysis in Haston. In Haston, the court did not ultimately conclude, as Clark suggests, that evidence of the prior restaurant robberies should have been excluded due to lack of similarities. On the contrary, the court concluded the offenses were sufficiently similar by virtue of the fact Donald McDowell was involved in both sets of offenses. The court explained that, in the prior restaurant robberies, it had been established that both McDowell and Haston participated. It was further established that McDowell participated in the three charged robberies, by virtue of his guilty pleas. Thus, the only question was whether Haston was involved in the later robberies as well.
The court explained: “It appears, however, that a common mark additional to those above considered is involved in this case. That mark, which seems to have been accorded little significance by the parties hereto, is the very presence of Donald McDowell as one of the perpetrators of both the charged and uncharged offenses. It is clear that McDowell’s presence, unlike the other features common to the charged and uncharged offenses, is a mark whose distinctive nature tends to differentiate those offenses from other armed robberies. There is only one Donald McDowell, and his conjunction with [Haston] in earlier robberies, together with his admitted participation in the robberies charged, supports the inference that [Haston] and not some other person was his accomplice in those charged offenses. It thus appears that evidence of the uncharged offenses has some probative value on the issue of identity.
“It remains to be determined, however, whether the common mark of McDowell’s presence, considered in combination with the other common marks to which we have adverted, invests the evidence of other crimes with probative value sufficient to outweigh its clear prejudicial effect. We think that it does. Although, as we have stated, the other common marks are so lacking in distinctiveness that even considered in combination they would be insufficient to warrant admission, the addition of McDowell’s presence--a significantly distinctive mark--into the combination yields a different result.” (Haston, supra, 69 Cal.2d at pp. 249-250, fn. omitted.)
It is no doubt because of this second part of the Haston analysis that the prosecution relied on the case to support its motion to admit the uncharged offenses evidence.
In the present matter, Clark pleaded guilty to the P.G. home invasion and acknowledged during an interrogation that Hearne was also involved. Other evidence also pointed to Hearne as Clark’s accomplice, including an eyewitness identification. In connection with the charged offenses, the evidence established without question that Hearne had been one of the participants. His DNA was found on a vaginal swab taken from the victim, Hearne has a scar near his right eye, as described by the victim, and, after his arrest, Hearne asked two different people if DNA evidence could remain on a rape victim after she takes a shower.
Admittedly, the present matter is not directly on point with Haston. In Haston, McDowell had been convicted of the uncharged offenses and pleaded guilty to the charged offenses. Here, there is nothing in the record to suggest Hearne was convicted of the uncharged offenses against P.G., and he did not enter a guilty plea to the charged offenses. Nevertheless, there is substantial evidence of his guilt as to both. But in our view, this merely goes to the weight of the evidence.
Further, unlike in Haston, the present matter involves uncharged offenses and charged offenses that occurred within 24 hours of each other, making them part of a mini crime spree. This is an additional factor suggesting that the people involved in the P.G. home invasion were the same people who committed the A.F. home invasion.
We conclude the similarities between the charged and uncharged offenses, including the fact they both were committed by Hearne and another who fit Clark’s description, and the fact both were committed essentially on the same day, rendered the evidence admissible on the issue of identity.
Clark argues the evidence should nevertheless have been excluded under Evidence Code section 352 as more prejudicial than probative. Evidence Code section 352 permits the exclusion of relevant evidence where “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “‘Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome” [citation].’ [Citation.] ‘The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 805.) We review a trial court order under Evidence Code section 352 for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 213.)
We have already discussed the probative value of the evidence. The evidence linking Hearne to the A.F. home invasion was substantial. His DNA was found on the victim, he has a scar matching that of the smaller intruder, and he asked two people whether DNA would remain on a victim after she takes a shower. But the only thing linking Clark to the A.F. crimes was his general description as taller and thinner than Hearne, his association with Hearne, and his commission of a similar type of offense less than 24 hours after the A.F. home invasion. Without this latter evidence, there was probably not enough to convict Clark.
“The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.) “Prejudice” within the meaning of Evidence Code section 352 is used in its “‘etymological sense of “prejudging” a person or cause on the basis of extraneous factors.’” (People v. Zapien (1993) 4 Cal.4th 929, 958.)
In the present matter, there was very little potential for Clark being prejudiced by admission of the P.G. home invasion evidence. That home invasion involved much less serious offenses than were committed in the charged offenses. Hence, there is little likelihood the jury would convict him of the charged offenses just because he committed the uncharged offenses. Likewise, the jury was informed Clark entered a guilty plea to the uncharged offenses, thereby making it unlikely the jury would convict him of the charged offenses just to punish him for the uncharged offenses.
The trial court understood its obligation to weigh potential prejudice against probative value. In admitting the evidence, the court explained: “[T]he Court has weighed all of the [Evidence Code section] 352 issues, including undue consumption of time, confusing the jury potential, undue prejudice in the sense of it being so strongly emotional that it might overcome the jury’s reason. In careful balancing of [Evidence Code section] 352, as the Court is required to do, under all of the cases under the Evidence Code section, it appears that, in balance, it is admissible, and the Court will admit it.” Under the circumstances presented, there was no abuse of discretion.
II
Instruction on Uncharged Offense Evidence
In arguing for admission of the P.G. home invasion evidence, the prosecutor explained the evidence was being presented on the issues of intent, motive and identity. As to intent and motive, the prosecutor assured the court the evidence was being presented only as to the theft offenses. However, on the issue of identity, the prosecutor explained the evidence would be admissible on all offenses. The trial court agreed to give a limiting instruction to this effect.
The instruction ultimately given by the court read: “The People will be presenting evidence that the defendant, Leonard Clark, committed other offenses that were not charged in this case, specifically, the robbery of [P.G.] on August 16th, 2006. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense.
“Proof by a preponderance of the evidence is a different burden of proof than beyond a reasonable doubt. A fact proved by a preponderance of the evidence if you--a fact is proved by a preponderance of the evidence if you conclude that it’s more likely than not that the fact is true.
“If the People have not met this burden, then you must disregard this evidence entirely. If you decide that the defendant committed the uncharged offenses, you may, but you’re not required, to consider that evidence for the limited purpose of deciding whether or not the defendant was the person who committed the offenses alleged in this case. That’s for identity or for intent. The defendant acted with the intent to commit theft in this case.
“In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offenses. Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant’s credibility. Do not conclude from this crime that the defendant has a bad character or is disposed to commit crime.
“If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of the charged offenses. The People must still prove each element of every charged offense beyond a reasonable doubt.” (Italics added.)
Clark contends the italicized portion of the foregoing instruction is defective for two reasons. First, he argues, the instruction failed to limit use of the uncharged offense evidence to the theft offenses as the court had indicated it would do. Second, Clark argues the last sentence of the italicized portion of the instruction amounted to a directed verdict. According to Clark, this statement “left the jury with no choice but to find [him] guilty of” the burglary and robbery counts.
The People contend Clark failed to object to the instruction on the foregoing bases and therefore has forfeited the argument for purposes of appeal. Failure to object to instructional error forfeits the objection on appeal unless the defendant’s substantial rights are affected. (§ 1259; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192-1193; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) “Substantial rights” are equated with errors resulting in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) To the extent Clark is correct that the instruction amounted to a directed verdict on the burglary and robbery counts, it negatively affected his substantial rights, and the argument may be raised on appeal even without an objection. However, as we shall explain, the instruction did not amount to a directed verdict and was not otherwise defective.
When viewed in context, and as it was likely read by the trial court, the last sentence of the italicized portion of the instruction did not amount to a directed verdict but instead provided the limitation that Clark contends was missing from the instruction. First, the court instructed the jury that it may use evidence of uncharged offenses for the limited purpose of deciding if Clark was the person who committed the alleged offenses. This was, of course, the issue of identity. As reflected in the reporter’s transcript, the court then said: “That’s for identity or for intent. The defendant acted with the intent to commit theft in this case.”
Although this concluding portion of the paragraph is transcribed as two sentences, it is clear from the context it was in fact one, with the court saying: “That’s for identity or for intent, the defendant acted with the intent to commit theft in this case.” The concluding clause was no doubt intended to limit the preceding word “intent” and thereby get across that the uncharged offense evidence may be used on the issue of intent only as to the theft-related offenses. Presumably, the correct punctuation was reflected in the written instruction from which the court was reading, which would explain why defense counsel found it unnecessary to object to the instruction.
Thus, as properly read, the instruction limited use of the evidence on the issue of intent, as the court had indicated it would do.
But even considering the instruction in the form written by the court reporter, there was no prejudicial error. “‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’” (People v. Carrington (2009) 47 Cal.4th 145, 192.) Instructional error that directs a finding or partial verdict on one particular element, is not a structural defect in the trial mechanism that defies harmless error review. (People v. Flood, supra, 18 Cal.4th at pp. 502-503.) Such error is subject to the Chapman test of harmless error. (Flood, at pp. 504-505; see Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].)
Notwithstanding the misleading statement at the end of the italicized portion of the instruction, the final sentence of the instruction read: “The People must still prove each element of every charged offense beyond a reasonable doubt.” Furthermore, as explained in the preceding section, the only relevant issue in this case was identity, not intent. Thus, even if the jury was told Clark had the requisite intent for the theft offenses, it still had to find that Clark was the person with Hearne at A.F.’s apartment. Thus, any error in the instruction was harmless beyond a reasonable doubt.
III
Cumulative Error
Because we find no error in the admission of uncharged offense evidence, we have no occasion to consider cumulative error.
IV
Dual Use of Facts for Sentencing
Section 667.61 sets forth an alternative sentencing scheme for certain forcible sex crimes, including oral copulation in violation of section 288a (§ 667.61, former subd. (c)(6); Stats. 1998, ch. 936, § 9, p. 6874). Under this provision, the court shall impose a sentence of 25 years to life where the defendant has committed an applicable sex offense and at least two of the circumstances specified in subdivision (e) apply or at least one of the circumstances specified in subdivision (d) applies. The circumstances under subdivision (e) include where the offense was committed during a burglary (§ 667.61, former subd. (e)(2); Stats. 1998, ch. 936, § 9, p. 6875) and where the defendant personally used a dangerous or deadly weapon or a firearm (§ 667.61, former subd. (e)(4); Stats. 1998, ch. 936, § 9, p. 6875). One of the circumstances under subdivision (d) is where the offense was committed during a burglary as defined in section 460, subdivision (a), i.e., first degree burglary. (§ 667.61, former subd. (d)(4); Stats. 1998, ch. 936, § 9, p. 6875.)
Defendants were charged in count 3 with oral copulation in violation of section 288a, subdivision (d). They were also charged with an enhancement under section 12022.3, subdivision (a), for the use of a firearm and with one-strike sentencing under section 667.61. In support of the one-strike sentence, the information alleged two circumstances under section 667.61, former subdivision (e): the offenses occurred during the commission of a burglary, and the defendants personally used firearms.
The jury found both defendants guilty on count 3 and found the enhancement and one-strike allegations true. The trial court sentenced both defendants on count 3 to an indeterminate term of 25 years to life, plus a determinate enhancement of four years.
Hearne contends the trial court improperly relied on the fact he personally used a firearm in connection with count 3 both to impose a life sentence and to impose a four-year enhancement. He cites section 667.61, former subdivision (f), which, at the time of the offenses, stated: “If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law....” (Stats. 1998, ch. 936, § 9, p. 6875.) In addition, Section 667.61, former subdivision (i) (now subdivision (j)), stated: “For the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” (Stats. 1998, ch. 936, § 9, p. 6876.) Hearne argues the prosecution pleaded and proved only the minimum number of circumstances under section 667.61, former subdivision (e), in support of the 25-year-to-life sentence, and therefore it could not rely on the firearm use to support an additional four-year enhancement.
The People contend this was nothing more than “harmless pleading error.” They argue that if the prosecution had charged commission of the offense during a burglary under section 667.61, subdivision (d)(4), rather than under section 667.61, subdivision (e)(2), that circumstance alone would have supported the life sentence, thereby leaving the firearm use to support the enhancement.
In People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), the defendant received two indeterminate 25-year-to-life terms, one for having committed forcible rape against one victim under the charged circumstances of firearm use and kidnapping, and the other for having committed forcible sodomy against another victim under the charged circumstances of firearm use and tying or binding. The jury also found the defendant personally used a firearm in the commission of the offenses, for which additional 10-year enhancements were imposed. (Id. at p. 738.) Because the trial court recognized it could not rely on the firearm use to support both the life sentence and the enhancement, it instead substituted the fact that the offenses were committed against multiple victims, another factor within subdivision (e). (Ibid.)
The Court of Appeal concluded the multiple victim circumstance could not be used because it had not been pleaded or proven. The court therefore struck the gun use enhancement. (Mancebo, supra, 27 Cal.4th at p. 739.) The Supreme Court affirmed. The high court concluded section 667.61 means what it says and, because the prosecution did not plead and prove a multiple victims circumstance, the trial court could not rely on that circumstance to support the life sentence, even though the evidence was clear that the crimes involved multiple victims. (Id. at pp. 743-744.)
The People contend Mancebo is distinguishable, because there the information did not allege multiple victims, whereas here the information alleged the offense occurred during a burglary, albeit under section 667.61, former subdivision (e)(2), rather than former subdivision (d)(4). The People argue it is not necessary to cite the correct subdivision as long as the correct circumstance is alleged. In Mancebo, the court said: “[W]e do not here hold that the specific numerical subdivision of a qualifying One Strike circumstance under section 667.61, subdivision (e), necessarily must be pled. We simply find that the express pleading requirements of section 667.61, subdivisions (f) and (i), read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing. Adequate notice can be conveyed by a reference to the description of the qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with a reference to section 667.61 or, more specifically, 667.61, subdivision (e), or by reference to its specific numerical designation under subdivision (e), or some combination thereof.” (Mancebo, supra, 27 Cal.4th at pp. 753-754.)
We are not persuaded. Mancebo stands for the proposition that a criminal defendant has a due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes. (Mancebo, supra, 27 Cal.4th at p. 747.) In Mancebo, sentencing error occurred because the defendant “was given notice that gun use would be used as one of the two pleaded and minimally required circumstances in support of the One Strike terms, whereafter, at sentencing, the trial court used the unpled circumstance.” (Id. at p. 753.)
In the present matter, even if we accept that a bare allegation that an offense was committed during a burglary without any reference to a specific subdivision of section 667.61 would be sufficient to invoke former subdivision (d)(4), the information here specifically cited former subdivision (e)(2). Furthermore, former subdivision (d)(4) requires that the burglary have been in the first degree. Nowhere does the information allege the oral copulation was committed during a burglary in the first degree. And while it is clear from the evidence the burglary here was at the home of A.F., Mancebo makes clear that this is not enough. The defendant must be put on notice that he will be subject to one strike sentencing if it is proven the oral copulation occurred during a first degree burglary. That did not happen here. Therefore, the firearm use circumstance is necessary to support the one strike sentence and could not be used to support a four-year enhancement. That enhancement must be stricken.
Although defendant Clark does not raise this sentencing issue in his appellate briefs, the same information was used to charge both defendants and the jury made the same findings as to Clark. “If a trial court imposes a sentence unauthorized by law, a reviewing court may correct that sentence whenever the error is called to the court’s attention.” (People v. Crooks (1997) 55 Cal.App.4th 797, 811.) Imposition of the four-year enhancement on count 3 amounts to an unauthorized sentence, which we may correct on our own motion.
V
Abstracts of Judgment
We note several errors in the abstracts of judgment. Both defendants were sentenced to full consecutive terms on counts 4 through 7. However, Clark’s abstract does not reflect full consecutive sentencing on any of these counts. Hearne’s abstract indicates he received a full consecutive sentence on counts 2, 6 and 7. In addition, Clark received enhancements on counts 1 and 2 of one year and 10 years respectively, with the enhancements stayed pursuant to section 654. However, these enhancements are not reflected in his abstract. We shall direct that these errors be corrected.
VI
Section 4019
The recent amendments to section 4019 do not operate to modify either defendant’s entitlement to presentence credits, both because defendants are required to register as sex offenders and because they have been convicted of serious felonies as defined in section 1192.7. (§ 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
Disposition
The judgments are modified as to both defendants to strike the four-year enhancement for personal use of a firearm on count 3. The trial court is directed to amend the abstracts of judgment to reflect this modification, to correct the other errors in the abstracts identified in this opinion, and to forward a copy of the amended abstracts to the Department of
Corrections and Rehabilitation. As so modified, the judgments are affirmed.
We concur: RAYE, Acting P. J. BUTZ, J.