Opinion
D058176 Super. Ct. No. FBA900385
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY NAVARRO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Bernardino, John B. Gibson, Judge. Affirmed as modified.
A jury found Michael Ray Navarro guilty of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)) arising out of a confrontation he and his son, Anthony Paul Navarro, had with Jessica Dickinson and Sandra Robles. The jury also found true the allegation that Michael had a prior conviction of assault with a deadly weapon. The trial court sentenced Michael to prison for 12 years.
Subsequent undesignated statutory references are to the Penal Code.
Anthony was a codefendant at trial but is not a party to this appeal. Because Michael and Anthony have the same surname, we use their first names for clarity and brevity; in doing so, we intend no disrespect or undue familiarity.
On appeal, Michael challenges his convictions on the basis of insufficiency of the evidence and instructional error. He also contends the trial court abused its discretion in imposing consecutive sentences and erroneously refused to stay execution of the sentence on the assault with a deadly weapon conviction. We reject Michael's contentions; modify the judgment to impose a mandatory five-year enhancement for Michael's prior conviction (§ 667, subd. (a)(1)), which the trial court erroneously omitted; and affirm the judgment as modified.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Assaults on Dickinson and Robles
Dickinson and Robles were sitting outside Robles's apartment complex one evening while their children played nearby. As Dickinson was talking to a friend, a van drove out of the complex and stopped between her and the friend.
When the van stopped, Michael exited from the passenger side, yelled at Dickinson and Robles, and asked whether they had a problem. Michael pointed a gun and told Robles he was going to "blow up" or "light up" the house and "shoot anybody over there." He told Dickinson he was going to shoot her three-month-old daughter in the face. Dickinson was holding the child in her arms at the time.
Anthony exited the driver's side of the van, approached Dickinson and told her he wanted to fight her brother. While Dickinson and Anthony were arguing, Dickinson's brother arrived. Anthony then began arguing with Dickinson's brother, swung at him and stabbed him in the chin with a box cutter.
Dickinson tried to break up the fight by stepping between her brother and Anthony, but Anthony pulled her toward himself and stabbed her. She fell to the ground and shouted that she had been stabbed. Dickinson then saw a "big spark" or "flash" and heard a "loud pop" or "loud bang" as Michael and Anthony ran toward the van and drove away.
Dickinson went to the hospital, where stab wounds on her neck and right arm and forearm were sutured. While at the hospital, Dickinson spoke to Officer Ugo Carlos. Dickinson told Officer Carlos that during the confrontation outside Robles's apartment, Michael pulled a black handgun from his waistband, pointed it at her and Robles and asked, "What the f*** did you say, Homey?"
At trial, Dickinson testified she did not see a gun during the incident. She also testified that the day after the incident, Anthony telephoned her and Robles to warn them not to go to the police or he would harm their children.
Later that evening, Officer Carlos interviewed Robles about the incident at her apartment complex. Robles also told him that Michael had a gun. B. Charges, Verdicts and Sentences
At trial, Robles testified she did not see any weapons during the incident.
The People charged Michael with assault with a firearm on Dickinson (count 2) (§ 245, subd. (a)(2)), assault with a firearm on Robles (count 3) (ibid.), assault with a deadly weapon (knife or box cutter) on Dickinson (count 4) (§ 245, subd. (a)(1)) and dissuading a witness (count 5) (§ 136.1, subd. (c)(1)). During trial, the court granted Michael's motion for judgment of acquittal on count 5 and dismissed that charge.
The jury found Michael guilty on counts 2, 3 and 4. The People then amended the information to add an allegation that Michael had a prior conviction of assault with a deadly weapon. The jury found the allegation true as to counts 2, 3 and 4.
The prior conviction was alleged in the felony complaint and in earlier versions of the information filed against Michael. Through clerical error, the allegation was omitted from the fifth amended information on which Michael went to trial. The day after the jury returned its verdicts on the current offenses, the trial court permitted the People to file a sixth amended information to correct the clerical error. Because Michael had denied the prior conviction allegations upon arraignment, the trial court did not conduct another arraignment; it proceeded directly to a trial of the prior conviction allegations before the same jury that found Michael guilty of the current crimes.
The trial court sentenced Michael to prison for a total of 12 years. The court imposed eight years for the conviction on count 2, selecting the upper term of four years (§ 245, subd. (a)(2)) and doubling that term based on the prior conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). The court imposed consecutive sentences of two years each for the convictions on counts 3 and 4, selecting one year as one-third of the middle term (§§ 245, subd. (a)(1), (2), 1170.1, subd. (a)) and doubling that term based on the prior conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
II
DISCUSSION
A. Substantial Evidence Supports the Conviction on Count 4
Michael contends his conviction on count 4 for assault with a deadly weapon on Dickinson must be reversed because there was insufficient evidence he cut Dickinson or aided or abetted Anthony in cutting her. We disagree.
In considering a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Maury (2003) 30 Cal.4th 342, 403.) "[W]e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Albillar (2010) 51 Cal.4th 47, 60.) As we shall explain, the record contains substantial evidence to support Michael's conviction on count 4.
The People's theory at trial was that Michael aided and abetted Anthony in the assault with the box cutter on Dickinson. "[A] person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) Liability as an aider and abettor attaches if the defendant knew the perpetrator intended to commit the crime and the defendant intended to and did encourage or facilitate the perpetrator's commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561; People v. Em (2009) 171 Cal.App.4th 964, 970.) Whether a defendant aided and abetted commission of a crime is a question of fact, and on appeal we must resolve all conflicts in the evidence and draw all reasonable inferences in support of the judgment. (People v. Campbell (1994) 25 Cal.App.4th 402, 409; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) "Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense." (In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
Here, testimony at trial related to all of these factors. Michael and Anthony arrived at the crime scene together in the van. They are father and son. During the assaults, Michael pointed a gun at Dickinson and Robles while Anthony argued with Dickinson and her brother and then attacked Dickinson with a box cutter. After Anthony cut Dickinson, Michael and Anthony both ran back to the van and drove away together. From these facts, a reasonable jury could conclude that Michael knew Anthony intended to assault Dickinson and that Michael intended to and did facilitate the assault. (See, e.g., In re Juan G., supra, 112 Cal.App.4th at p. 5 [evidence that defendant was present at scene of robbery, stood beside perpetrator who pointed knife while demanding money from victim, and was with perpetrator immediately before robbery and during attempted escape was sufficient to support liability for aiding and abetting]; In re Lynette G., supra, 54 Cal.App.3d at p. 1095 [evidence that defendant was present at scene of crime, fled with perpetrator and two others, and was soon detained in their company was sufficient to support liability for aiding and abetting].) Accordingly, the jury reasonably could find Michael guilty of the assault with a deadly weapon on Dickinson. (See § 31 [aider and abettor is liable as principal]; McCoy, supra, 25 Cal.4th at p. 1117 [aider and abettor liable even if someone else commits criminal act].) B. The Trial Court Did Not Misinstruct the Jury That It Could Find Appellant Guilty as an Aider and Abettor on the Assault with a Firearm Charges
Michael asserts that we must reverse the convictions on counts 2 and 3 (assault with a firearm on Dickinson and Robles) because the trial court, over his objection, improperly instructed the jury with a portion of a standard aiding and abetting instruction (CALCRIM No. 400) that did not apply to the facts of this case. Specifically, Michael contends the paragraph pertaining to the natural and probable consequence doctrineshould not have been given and that the trial court's inclusion of that paragraph impermissibly permitted the jury to find him guilty on counts 2 and 3 as an aider and abettor rather than as a direct perpetrator, in violation of his federal constitutional rights to due process of law and a jury trial. The People concede, and we agree, the trial court should not have given the challenged portion of the instruction; but the People contend, and again we agree, the challenged portion of the instruction did not mislead the jury or violate Michael's constitutional rights.
The portion of the instruction that was read to the jury and to which Michael objected stated: "Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime."
"The natural and probable consequence doctrine is based on the recognition that those who aid and abet should be responsible for the harm they have naturally, probably, and foreseeably put in motion." (People v. Avila (2006) 38 Cal.4th 491, 567.) Under the doctrine, a defendant who aids and abets a crime may be liable not only for the crime aided and abetted, but also for any other crime that was a natural and probable consequence of the crime aided and abetted. (Ibid.)
Michael is correct that the trial court should not have instructed the jury with the portion of CALCRIM No. 400 pertaining to the natural and probable consequences doctrine. There was no evidence that Michael aided and abetted any crime other than Anthony's assault on Dickinson with the box cutter or that some other crime was the natural and probable consequence of that assault. For this reason, the last paragraph of CALCRIM No. 400 was "an 'abstract' instruction, i.e., 'one which is correct in law but irrelevant[.]'" (People v. Rowland (1992) 4 Cal.4th 238, 282.) "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
"Nonetheless, giving an irrelevant or inapplicable instruction is generally ' "only a technical error which does not constitute ground for reversal. (People v. Cross (2008) 45 Cal.4th 58, 67 (Cross).) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (Id. at pp. 67-68.) In evaluating the defendant's challenge, we consider whether it is reasonably likely that the trial court's instructions caused the jury to misapply the law or to interpret the instructions in a way that violated the defendant's rights. (People v. Carrington (2009) 47 Cal.4th 145, 192; People v. Smith (2008) 168 Cal.App.4th 7, 13.) We consider the entire charge to the jury, not just one particular instruction or part of an instruction (Carrington, at p. 192); and we assume jurors are sufficiently intelligent to understand and apply all instructions given (People v. Butler (2009) 46 Cal.4th 847, 873). Applying these standards, we conclude that the trial court's erroneous instruction with the final paragraph of CALCRIM No. 400 does not require reversal of Michael's convictions of assault with a firearm on Dickinson and Robles.
The trial court gave general instructions on liability as a direct perpetrator, liability as an aider and abettor, and on the distinctions between the two types of liability. The court also specifically instructed the jury that it could return a verdict of guilty against Michael, but not Anthony, for aiding and abetting the crime of assault with a deadly weapon. Significantly, the court gave no similar instructions that Michael could be found guilty as an aider and abettor on either of the assault with a firearm charges. In other instructions (concerning intoxication), the trial court specifically referenced both Michael's liability as an aider and abettor of Anthony's assault with a deadly weapon and Anthony's liability as an aider and abettor of Michael's assaults with a firearm. Thus, the instructions identified for the jury the crimes for which Michael could be liable as an aider and abettor of Anthony and those for which Anthony could be liable as an aider and abettor of Michael.
There was testimony at trial that before the assaults, Michael and Anthony had been attending a birthday party at which the guests were drinking beer and liquor.
The trial court erroneously instructed the jury that Michael, but not Anthony, was charged in the two counts of assault with a firearm. The information charged both Michael and Anthony with these crimes. This instructional error, however, could only have benefitted Michael, because the error suggests that as the only defendant charged in the assault with a firearm counts, Michael was the direct perpetrator of these crimes rather than an aider and abettor of Anthony.
When these instructions are read together and considered in light of the evidence at trial that Michael threatened Dickinson and Robles with a gun and Anthony attacked Dickinson with a box cutter, it is clear that Michael's liability as an aider and abettor was limited to the assault with a deadly weapon charge and that his liability for the assault with a firearm charges was as a direct perpetrator. Hence, the trial court's error in giving the portion of CALCRIM No. 400 pertaining to the natural and probable consequence doctrine "would not have misled a rational jury into concluding" that Michael could be found guilty of the assault with a firearm charges as an aider and abettor and "did not violate [his] state or federal constitutional rights." (Cross, supra, 45 Cal.4th at p. 69.) C. The Trial Court Did Not Err in Failing to Instruct the Jury to View Michael's Extrajudicial Statements with Caution
Michael argues his convictions on counts 2 and 3 must be reversed because the trial court did not perform its sua sponte duty to instruct the jury to consider with caution Dickinson's and Robles's testimony concerning Michael's threats to "blow up" or "light up" Robles's house, to "shoot anybody over there," and to shoot Dickinson's daughter in
the face. (See CALCRIM No. 358.) Although we agree the cautionary instruction should have been given, we hold its omission was harmless.
The instruction states: "You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s].
"[Consider with caution any statement made by (the/a) defendant tending to show (his or her) guilt unless the statement was written or otherwise recorded.]" (CALCRIM No. 358.)
The trial court should have instructed the jury to consider with caution the testimony concerning Michael's threats to shoot. The purpose of the instruction is to assist the jury in determining whether a defendant made the statement, and when the evidence warrants the court must instruct the jury sua sponte to view with caution evidence of a defendant's oral admissions. (People v. Dickey (2005) 35 Cal.4th 884, 905 (Dickey).)In particular, such an instruction is required when the evidence consists of statements made by the defendant that tend to prove his intent to commit a crime. (See, e.g., People v. Carpenter (1997) 15 Cal.4th 312, 392 (Carpenter)[instruction required as to defendant's statement, made before murdering victim, that he wanted to rape her]; People v. Stankewitz (1990) 51 Cal.3d 72, 93-94 (Stankewitz)[instruction required as to defendant's statement, made after shooting victim, "Did I drop her or did I drop her?"]; People v. Beagle (1972) 6 Cal.3d 441, 455, fn. 5 [cautionary instruction required for pre-offense statements of intent].) Here, Michael's threatening to "blow up" or "light up" Robles's house, to "shoot anybody over there" and to shoot Dickinson's daughter in the face, when combined with his pointing a gun at Robles and Dickinson and firing the gun as he ran toward the van after Anthony cut Dickinson, tended to prove the intent element of the assault with a firearm charges. (See People v. Parks (1971) 4 Cal.3d 955, 961-962 [defendant's waving gun, shooting it out window and threatening victim constituted substantial evidence of intent element of assault with firearm].) Accordingly, the trial court should have given the jury the cautionary instruction.
The trial court's failure to give the cautionary instruction does not require reversal of the convictions on counts 2 and 3, however. "The standard of review for erroneous failure to give the cautionary instruction is 'the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.'" (Dickey, supra, 35 Cal.4th at p. 905.) According to Michael, there is a "strong possibility" the jury would have reached different verdicts on the assault with a firearm charges because Robles's and Dickinson's testimony about the precise wording of Michael's threats was in "sharp conflict," and the other evidence supportive of these charges was "weak and conflicted." We are not persuaded.
The discrepancy in the witnesses' testimony regarding the precise wording of Michael's threats did not render the failure to give the cautionary instruction prejudicial. Where, as here, the fact that a defendant made a threat is what matters and there is no dispute that he did, the failure to give the jury a cautionary instruction is not prejudicial even though there is a dispute about the specific wording of the threat. (People v. Padilla (1995) 11 Cal.4th 891, 922-923, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; see also Stankewitz, supra, 51 Cal.3d at p. 94 ["In assessing potential prejudice, we stressed that the primary purpose of the cautionary instruction 'is to assist the jury in determining if the statement was in fact made.'"].) Here, Robles and Dickinson, the only witnesses to testify on the issue, both testified that Michael made threats to shoot them or their family members. Their testimony differed only as to the specific language Michael used: Robles testified he threatened to "blow up" or "light up" her house, and Dickinson testified he threatened to "shoot anybody over there" and to shoot her daughter in the face. Thus, since the witnesses agreed Michael made threats and the only conflict in their testimony concerned the wording of his threats, the trial court's failure to give the cautionary instruction was harmless. (See Padilla, at pp. 922-923.)
Moreover, other instructions adequately advised the jury how to consider any conflicts in the testimony regarding Michael's threats or other matters. The trial court gave detailed instructions on how to assess witness credibility, and those instructions specifically directed the jury to consider, among other things, any discrepancies between a witness's testimony and other evidence in the case and between a witness's statements before and during trial. (See CALCRIM Nos. 226, 318.) The trial court also instructed the jury that in the case of a conflict in the evidence, it "must decide what evidence, if any, to believe"; and that although the testimony of any one witness was sufficient to prove a fact, it "should carefully review all the evidence" before accepting that testimony as proof of the fact. (CALCRIM Nos. 301, 302.) Since these instructions adequately advised the jury on how to assess witness credibility and provided guidance on whether to credit a witness's testimony, we conclude that any error in failing to give an explicit cautionary instruction was harmless. (See Carpenter, supra, 15 Cal.4th at p. 393 [failure to give cautionary instruction harmless error when trial court "fully instructed the jury on judging the credibility of a witness, thus providing guidance on how to determine whether to credit the testimony"]; People v. Quach (2004) 116 Cal.App.4th 294, 299-300 [failure to give cautionary instruction harmless error when trial court instructed jury "to exercise caution in considering all the evidence which bore on the proof of any fact"].) D. The Trial Court Did Not Err in Sentencing Michael to Consecutive Prison Terms
Michael raises several challenges to the trial court's decision to impose consecutive sentences for the convictions on counts 3 and 4 (assault with a firearm on Robles and assault with a deadly weapon on Dickinson). He contends the court's use of his prior record both to impose the upper term on count 2 (assault with a firearm on Dickinson) and to impose a consecutive term on count 3 constituted impermissible "dual use" of his prior record. He further contends that since the offenses charged in counts 2 and 3 were committed at the same time and in the same place (and therefore indicated a single period of aberrant behavior), the sentences for the conviction on these two counts should not be consecutive. Regarding the conviction on count 4, Michael contends the imposition of a consecutive sentence was improper because no evidence supported the trial court's conclusion that he had separate intents regarding counts 2 and 4. He further contends the sentence on count 4 must be stayed pursuant to section 654 because the same criminal act and same victim were involved in counts 2 and 4. These arguments have no merit.
As a preliminary matter, Michael forfeited his "dual use" challenge to the consecutive sentence imposed for the conviction on count 3. At the sentencing hearing, the trial court used Michael's prior record as a factor both to impose the upper term on count 2 and to impose a consecutive prison term for the conviction on count 3, but Michael did not object to this "dual use." Our Supreme Court has held that "the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott (1994) 9 Cal.4th 331, 353, italics added.) Michael therefore may not urge improper "dual use" as a basis for reversal of the consecutive sentence imposed for the conviction on count 3.
Even if Michael had not forfeited his "dual use" argument, it would fail on the merits. Michael is correct that the trial court could not use his prior record to impose a consecutive sentence for the conviction on count 3, because the court already had used that factor to impose the upper term for the conviction on count 2. (See Cal. Rules of Court, rule 4.425(b)(1) [any aggravating or mitigating fact may be considered in deciding whether to impose consecutive rather than concurrent sentences except a fact used to impose an upper term].) But the court also based its decision to impose consecutive prison terms for the convictions on counts 2 and 3 on the fact that those counts involved separate victims, namely, Dickinson and Robles. A trial court has discretion to impose consecutive sentences where, as here, a defendant has committed crimes against multiple victims. (People v. Calhoun (2007) 40 Cal.4th 398, 408; People v. Leon (2010) 181 Cal.App.4th 452, 468.) Since only a single aggravating fact is required to impose consecutive sentences (People v. Osband (1996) 13 Cal.4th 622, 728-729), the trial court properly could impose consecutive sentences for the convictions on counts 2 and 3 based solely on the aggravating fact that those counts involved different victims. The court's improper use of Michael's prior record to impose a consecutive sentence for the conviction on count 3 therefore was not prejudicial and does not require resentencing. (Osband, at pp. 728-729; Leon, at p. 469.)
This conclusion also disposes of Michael's alternative argument that consecutive sentences should not have been imposed for the convictions on counts 2 and 3 because the offenses were committed at the same time and place and therefore indicated a single period of aberrant behavior. (See Cal. Rules of Court, rule 4.425(a)(3) [listing as one criterion affecting decision to impose consecutive rather than concurrent sentences the fact that crimes were committed at different times or at separate places, rather than being committed so closely in time and place as to indicate single period of aberrant behavior]; People v. Valenzuela (1995) 40 Cal.App.4th 358, 363-365 [trial court may use multiple-victims factor to impose consecutive sentences when crimes are so related in time and place that they constitute one criminal transaction].)
We also reject Michael's arguments that the trial court could not impose a consecutive sentence for the conviction on count 4 (assault with a deadly weapon on Dickinson) because that crime "involved the same victim," was "committed at the same time and place," "had an identical objective," and was based on the same act (pointing a gun at Dickinson) as the crime charged in count 2 (assault with a firearm on Dickinson). Although the two assaults involved the same victim and occurred during the same incident, they were not based on the same act. Michael aided and abetted Anthony's assault with a deadly weapon on Dickinson by accompanying Anthony to and from the scene of the crime and pointing a gun at Dickinson and Robles while Anthony cut Dickinson. Michael committed the assault with a firearm by pointing the gun at Dickinson, threatening to shoot her daughter in the face, and firing the gun as he and Anthony fled. "[N]o rule proscribes multiple prosecution or multiple punishment where, as here, a defendant is charged with himself having directly committed the act of [assault] and with aiding and abetting . . . [an] accomplice[] in [his assault] of the same victim." (People v. Beasley (1970) 5 Cal.App.3d 617, 639, fn. omitted.)
Moreover, the trial court found Michael had different motivations with respect to the assaults charged in counts 2 and 4. As discussed above, Michael's intent as to the assault with a deadly weapon charge was to encourage or facilitate Anthony's attack on Dickinson with a box cutter. (See part II.A., ante.) His intent as to the assault with a firearm charge was to perform an act likely to result in the application of physical force against Dickinson — here, firing the gun. (See In re Tameka C. (2000) 22 Cal.4th 190, 198 [assault with firearm requires intent to perform act likely to produce physical force against victim].) Where, as here, violent crimes committed against the same victim on one occasion have separate intents, objectives or motives, the prohibition on multiple punishment for the same criminal conduct does not apply (§ 654, subd. (a); People v. Harrison (1989) 48 Cal.3d 321, 335) and consecutive sentencing is proper (Cal. Rules of Court, rule 4.425(a)(1), (2); People v. Calderon (1993) 20 Cal.App.4th 82, 87). Therefore, since the trial court reasonably could conclude, based on the evidence introduced at trial, that Michael had different intents as to the assaults charged in counts 2 and 4, we must uphold its decision to impose consecutive sentences for the convictions on those counts. (See, e.g., People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Blake (1998) 68 Cal.App.4th 509, 512.) E. The Trial Court Erred by Not Imposing the Mandatory Five-year Enhancement for Michael's Prior Conviction of Assault with a Deadly Weapon
As relevant here, section 654, subdivision (a) states: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
After briefing, we noticed that the trial court had not imposed the five-year enhancement prescribed by section 667, subdivision (a)(1) for Michael's prior conviction of assault with a deadly weapon. We requested letter briefs from the parties on the issue. (See Gov. Code, § 68081.) Michael contends the trial court could not impose the five-year enhancement because the People did not plead that specific enhancement. The People contend the trial court was required to impose the five-year enhancement. We agree with the People.
As pertinent here, section 667, subdivision (a)(1) provides that "any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately." (Italics added.) "Where a person has been convicted of a serious felony in the current case, and it has been alleged and proved the person suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), the trial court must impose a consecutive five-year term for each such prior conviction. The trial court has no discretion and the sentence is mandatory." (People v. Purata (1996) 42 Cal.App.4th 489, 498, italics added (Purata); accord, People v. Rivadeneira (1991) 232 Cal.App.3d 1416, 1420 ["Imposition of the enhancements for the prior serious felony convictions is mandatory."].) The conditions for imposition of the mandatory five-year enhancement are satisfied here.
Michael was convicted in the current case of one count of assault with a deadly weapon and two counts of assault with a firearm. In the current case, the People also alleged in the felony complaint and in the subsequent accusatory pleadings (except the fifth amended information) (see fn. 5, ante) that Michael previously had been convicted of a serious felony, namely, assault with a deadly weapon. The jury found the allegations true. The current and prior offenses are all serious felonies and were so identified in the accusatory pleadings. (§§ 667, subd. (a)(4), 1192.7, subd. (c)(31).) On this record, the trial court was required to impose the consecutive five-year prison term prescribed by section 667, subdivision (a)(1). (Purata, supra, 42 Cal.App.4th at p. 498.)
Michael insists, however, that the trial court was not authorized to impose the enhancement under section 667, subdivision (a)(1) because that enhancement "never was charged." To the extent Michael is arguing the enhancement cannot be imposed because the facts of the prior conviction were never alleged, he is wrong. As we explained in footnote 5, ante: (1) the People alleged the prior conviction in all accusatory pleadings except the fifth amended information on which Michael went to trial for the current offenses; (2) the omission of the prior conviction allegations from the fifth amended information was due to a clerical error; (3) the trial court permitted the People to correct the error by filing a sixth amended information the day after the jury returned its verdicts on the current offenses; and (4) the same jury then found the prior conviction allegations to be true. Thus, the fact that Michael had a prior felony conviction was properly charged. (See § 969a [authorizing amendment of information to charge prior felony convictions]; People v. Valladoli (1996) 13 Cal.4th 590 [People may amend information to include prior felony convictions after jury returns verdicts on substantive offenses charged in information but before jury is discharged].)
Michael also complains the prior conviction allegations did not provide adequate notice of the potential five-year enhancement because the allegations did not specifically mention section 667, subdivision (a)(1). It is true that the prior conviction allegations referenced only enhancement under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). But "the imposition of the five-year enhancement for the prior serious felony conviction [is] part and parcel of the Three Strikes statutory scheme." (People v. Dominguez (1995) 38 Cal.App.4th 410, 425.) In any event, "it is clear that a valid accusatory pleading need not specify by number the statute under which the accused is being charged" (People v. Thomas (1987) 43 Cal.3d 818, 826); it is sufficient that the accusatory pleading identify the factual basis for imposition of an enhanced penalty (People v. Flynn (1995) 31 Cal.App.4th 1387, 1392-1395; People v. Shoaff (1993) 16 Cal.App.4th 1112, 1118). Therefore, although it would be better practice for the People to allege the specific statutes under which they seek to enhance a defendant's sentence, we conclude that the information here provided adequate notice of the potential five-year enhancement by stating in separate allegations the facts supporting the sentence enhancement, namely, that Michael previously had been convicted of assault with a deadly weapon, a serious felony.
A contrary conclusion is not required by People v. Mancebo (2002) 27 Cal.4th 735, on which Michael relies. In Mancebo, the information charged the defendant with various sex crimes against multiple victims and alleged firearm use and kidnapping to support an enhancement under section 667.61. At the sentencing hearing, the trial court sua sponte substituted a multiple-victim circumstance for the firearm-use allegation to support the enhancement under section 667.61 and to free up the firearm-use allegation for use to support other enhancements, even though the multiple-victim circumstance had not been alleged by either statute number or descriptive facts. The Supreme Court reversed the sentence, holding that the trial court erred when it used an unpled multiple-victim circumstance to support an enhanced sentence under section 667.61. (Mancebo, at pp. 742-745.) "Mancebo thus stands for the limited proposition that a defendant is entitled to notice of the specific facts that will be used to support an enhanced sentence. Facts alleged and proved only as part of the substantive crime charged cannot later be used to support a sentencing enhancement." (People v. Tardy (2003) 112 Cal.App.4th 783, 789.) Mancebo is therefore not on point because Michael's sentence, unlike Mancebo's, will be enhanced on the basis of facts that were specifically pleaded and proved for the purpose of enhancement.
In sum, we conclude the trial court was required to impose the five-year enhancement prescribed by section 667, subdivision (a)(1). Its failure to do so resulted in an unauthorized sentence. (People v. Turner (1998) 67 Cal.App.4th 1258, 1269.) It is our duty to correct an unauthorized sentence on appeal even when doing so results in a longer prison sentence, as it will here. (People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on another ground by People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Solórzano (2007) 153 Cal.App.4th 1026, 1040-1041.) Since imposition of the five-year enhancement is mandatory based on Michael's prior serious felony conviction, we need not remand for resentencing and instead modify the judgment to impose the enhancement. (§ 667, subd. (a)(1); Purata, supra, 42 Cal.App.4th at pp. 498-499.)
DISPOSITION
The sentence is modified to add a consecutive prison term of five years based on Michael's prior conviction of assault with a deadly weapon. (§ 667, subd. (a)(1).) As so modified, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment to reflect the change in sentence and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
IRION, J. WE CONCUR:
BENKE, Acting P. J.
NARES, J.