Opinion
H036302
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. RUBEN PRADO QUIROZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Monterey County Super. Ct. No. SS101723
1. Introduction
After a jury trial, defendant Ruben Prado Quiroz was convicted "as charged" of committing robbery (count 1; Pen. Code, § 211) involving personal use of a knife (§ 12022, subd. (b)(1)) "for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote criminal conduct by gang members in violation of Penal Code Section 186.22(b)(1)" and of trying to deter the performance of an executive officer's duties (count 2; § 69) "for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote criminal conduct by gang members in violation of Penal Code Section 186.22(b)(1)."
Unspecified section references are to the Penal Code. References to section 186.22(b)(1) are to section 186.22, subdivision (b)(1).
Section 186.22(b)(1) provides for a range of sentence enhancements for such a crime, either two, three, or four years (§ 186.22(b)(1)(A)), or five years if the crime is a serious felony (§ 186.22(b)(1)(B)), or 10 years if the crime is a violent felony (§ 186.22 (b)(1)(C)). Robbery is classified by California statutes as both a serious (§ 1192.7, subd. (c)(19)) and a violent felony (§ 667.5, subd. (c)(9)).
The trial court sentenced defendant to 13 years in prison, including the lower term of two years for the robbery, enhanced by one consecutive year due to the personal use of a deadly weapon and 10 consecutive years "pursuant to Penal Code Section 186.22(b)(1)." The court also imposed the middle term of two years on count 2 with a three year middle term enhancement "pursuant to section 186.22(b)(1)" to be served concurrently.
On appeal, defendant urges that the 10-year gang enhancement is unauthorized, as the pleading gave him no notice that robbery is a violent felony subject to this possible enhancement and the jury did not find that he committed a violent felony. As we will explain, the jury finding that defendant committed a robbery established that he committed a violent felony, and the allegations of this enhancement complied with due process. For the reasons stated below, we will affirm the judgment.
2. Trial Evidence
A. The Crimes
On Friday night, July 16, 2010, 17-year old Joshua R. (Joshua) was supervising some children playing soccer in the back parking lot of a Salinas church when three young males about his age approached and surrounded him against a wall. Joshua was talking on his cell phone at the time. Defendant, one of the three males, asked, "Where do you bang?" Though Joshua was not in a gang, he recognized the question as asking if he was. He said he was nothing. Defendant, who was wearing a San Francisco 49ers cap, pulled a knife from his pocket, opened it, and said, " 'Give me your phone or I'm going to stab you.' " One of the children Joshua was supervising ran off when the knife was pulled out. Joshua stalled. The boy on his left started to reach under his shirt towards his belt. Joshua thought he had a weapon. Defendant grabbed Joshua's phone and ran off down an alley with his companions. Joshua borrowed a cell phone from a church member, Floriberto Delacruz, and called 911. Delacruz had seen the same young males drinking beer in the parking lot earlier that night.
Salinas Police Officer Gavin McVeigh was on patrol in the area that night when he heard a radio dispatch of a robbery. He saw three subjects on the sidewalk matching the radio description. He pulled up behind them and asked them to stop. They turned and looked at him. Defendant looked around and walked away around a pillar. Defendant came back into view, stopped walking and sat at the curb. The other two followed him around the pillar and to the curb. When the youths were out of sight, McVeigh heard a metal object hit the cement and heard something else hit metal. After backup officers arrived, McVeigh retraced their steps and found a black folding knife on the ground and a white cell phone at the base of a pay phone. Defendant was wearing a 49ers cap. The other two were juveniles. One, defendant's younger brother Jessie, was wearing a San Francisco Giants cap. They smelled of alcohol but did not otherwise appear intoxicated.
Police officers brought Joshua's cell phone back to him that night. He also identified the knife they showed him as the one defendant used. Joshua identified defendant that night in an in-field show-up, after an officer put the 49ers cap on defendant at Joshua's request.
Officer McVeigh transported defendant that night, first to the Salinas Police Department and then to the Monterey County jail. While en route to the jail, McVeigh informed defendant of the charges against him. This made defendant angry. He denied robbing anyone. He said he was going to follow the officer home and kill him and his family. He was going to blast him. It would be on the television news.
B. The Gang Enhancement
Robert Zuniga, a Salinas police officer, testified as a criminal street gang expert as follows. The color red and 49er colors have been adopted as symbols of the Hispanic Norteno criminal street gang. The San Francisco Giants have also been adopted as a Norteno symbol, though the colors are orange and black. "SF" is said to mean "scrap free," and "scrap" is a derogatory term used by Nortenos for members of the rival Hispanic gang Surenos. Asking "Where are you from?" is a common gang challenge and often the precursor of violence, sometimes before the target has an opportunity to respond.
According to Zuniga, robberies, shootings, homicides, carjacking, and drug trafficking are primary activities of Nortenos. There are about 3,000 documented Norteno members in Salinas. Zuniga described three prior convictions of Nortenos in Salinas, one a February 26, 2008 robbery of two victims with a special criminal street gang charge. The other involved two Nortenos trying to take beer from a Safeway store without paying on January 12, 2008. They were convicted of active participation in a criminal street gang and robbery.
Zuniga cited six police contacts with defendant from July 2007 through June 17, 2010. Two involved physical fights with Surenos. Two other times, in 2007 and 2008, defendant identified himself as a Norteno. In August 2008, he was arrested while at high school for possessing Norteno songs on his cell phone. Most recently he was identified as part of a group that assaulted a boy after asking where he was from. Defendant was not identified as an assailant.
When defendant was interviewed on July 17, 2010, prior to being housed in the Monterey County jail, according to Sheriff's Deputy Greg Borg, Sheriff's Deputy Barrajas recorded defendant as saying that he associates with Nortenos and his enemies are the rival gang of Surenos. Defendant signed the questionnaire filled out by Barrajas. Defendant was housed in K-Pod, one of the jail pods where the jailers keep Nortenos. The jailers keep rival gang members segregated. Gang dropouts are removed from the gang areas. The jailers get information on gang behavior from dropouts, from prison notes called "kites" that describe gang operations, and sometimes from gang members.
According to Borg, not only do the jail classification officers try to ensure that gang members are housed safely, the gang members themselves screen new inmates before allowing them to be housed in their gang areas. If a new inmate does not fit in, he is told to "roll up," which means to leave. If a person is put in the wrong place, he could be assaulted before being removed. Defendant was housed in K-Pod until trial in September 2010.
Based on defendant's jail housing and his prior police contacts, gang expert Zuniga believed that defendant was an active Norteno. He also believed that a crime like the group taking of Joshua's cell phone was done to benefit the gang. A gang's reputation benefits from committing crimes because it instills fear in the community and discourages witnesses. Threatening a police officer benefits a gang by demonstrating its potential dangerousness and violent tendencies. A robbery also benefits the gang because the stolen item can be converted into cash to purchase either firearms or drugs.
C. The Defense
Defendant testified at trial. His defense was that he did not remember what happened the evening of July 16, 2010 because he was so intoxicated from drinking beer. Neither the knife nor the 49ers cap located by Officer McVeigh is his.
He denied being a gang member. He has rejected prior attempts to recruit him as a Norteno and as a Sureno. He said he had fought Surenos in the past because they had instigated fights. He had no problem staying in K-Pod because some of his friends in K-Pod are Nortenos.
3. The Pleadings, Instructions, and Sentencing
The information alleged in part in count 1 that defendant had committed the felony of second degree robbery in violation of section 211, "who did willfully, unlawfully, and by means of force and fear take personal property from the person, possession, and immediate presence of JOHN DOE.[] It is further alleged that the above offense is a serious FELONY within the meaning of Penal Code section 1192.7(c)(19)."
Count 1 further separately alleged under the heading "E: CRIMINAL STREET GANG" that "defendant committed said crime for the benefit of, at the direction of, or in association with NORTENO CRIMINAL STREET GANG, with the specific intent to promote, further, or assist in any criminal gang by gang members, in violation of Penal Code Section 186.22(b)(1)." This allegation followed a separate section, "E: SPECIAL ALLEGATION - USE OF DEADLY WEAPON," which alleged that defendant had used a knife as a deadly and dangerous weapon "within the meaning of Penal Code section 12022(b)(1) and causing the above offense to be a serious felony within the meaning of Penal Code section 1192.7(c)(23)."
At a hearing before the jury was selected, the court put on the record that defendant had rejected an offer of five years four months. The court advised defendant before the jury was selected that "if the jury comes back with a finding of true on the gang enhancement on the robbery charge, that's a 10-year enhancement." Defense counsel explained that defendant, then 18 years old, was aware of the alternatives and had made his decision.
The jury was instructed on the nine elements of establishing a gang enhancement in terms of CALCRIM 1401. The jury was also instructed on the five elements of robbery in terms of CALCRIM 1600. However, the jury was neither instructed that robbery is a serious or violent felony nor was it asked to determine whether robbery is a serious or violent felony.
The jury was asked to determine (1) whether a criminal street gang existed, which involves finding (a) an ongoing organization, association, or group of three or more individuals (b) with a common name (c) among whose primary activities are the commission of homicides, robberies, and drug sales, (d) whose members have engaged in a pattern of criminal gang activity, which involves (i) convictions of two or more robberies (ii) committed on separate occasions or by two or more individuals, with (iii) one occurring after September 26, 1988, and (iv) the most recent crime occurring within three years of an earlier crime, (2) for whose benefit, at whose direction, or in whose association defendant committed a felony (3) with the specific intent to assist, further or promote criminal conduct by gang members.
The jury was instructed: "The defendant is charged in Count 1 with robbery, in violation of Penal Code Section 211. To prove that the defendant is guilty of this crime the People must prove that: [¶] One, the defendant took property that was not his own; [¶] Two, the property was taken from another person's possession and immediate presence; [¶] Three, the property was taken against that person's will; [¶] Four, the defendant used force or fear to take the property or to prevent the person from resisting; [¶] And five, when the defendant used force and fear to take the property he intended to deprive the owner of it permanently."
After defendant was convicted, the People filed a sentencing memorandum recommending a sentence of 14 years, including a middle term sentence for robbery and a 10-year enhancement pursuant to section 186.22 (b)(1)(C). Defendant recommended a sentence of 12 years, the lower term for robbery and a 10-year enhancement pursuant to section 186.22 (b)(1)(C). The original probation report stated in part that "[t]he jury found true the enhancements as alleged in Count I, § 186.22(b)(1)[(C)] PC, which adds a consecutive term of 10 years." The probation officer initially recommended denying probation and committing defendant "to the custody of the California Department of Corrections and Rehabilitation for the term prescribed by law." At sentencing, the probation officer submitted "alternate recommendations" that sentence be imposed and execution of sentence be suspended in favor of four years formal probation.
At the sentencing hearing, defense counsel expressed some confusion about how the probation officer got to four years on the alternate recommendations. He asked for probation with a suspended sentence of 12 years. "I think Mr. Quiroz still stands by the 12 years. I think by law the Court has to impose that." The trial court rejected probation and imposed a sentence of 13 years in prison, including the lower term of two years for the robbery, enhanced by one consecutive year due to the personal use of a deadly weapon and 10 consecutive years "pursuant to Penal Code Section 186.22(b)(1)."
4. The Statutory Framework
Section 186.22 provides in relevant part: "(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows:
"(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion.
"(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.
"(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years."
Section 186.22(b)(1) thus provides for a range of sentence enhancements that depend on the nature of the underlying felony. (People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7; People v. Rodriguez (2009) 47 Cal.4th 501, 505.) "An enhancement is 'an additional term of imprisonment added to the base term.' (Cal. Rules of Court, rule 4.405(3) . . . .)" (People v. Torres (2011) 198 Cal.App.4th 1131, 1147 (Torres).)
Section 186.22 does not contain an express pleading and proof requirement. However, section 1170.1, subdivision (e) was broadened in 1997 to provide that "[a]ll enhancements 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. 1997, ch. 750, § 3, p. 5067.)
Prior to this amendment, since 1978, section 1170.1 had required the pleading and proof of certain enhancements that were specified in former subdivision (e). (Stats. 1977, ch. 165, § 17, p. 650.)
As noted above, "robbery or bank robbery" is statutorily designated a serious felony (§ 1192.7, subd. (c)(19)) and "[a]ny robbery" qualifies as a violent felony (§ 667.5, subd. (c)(9)). Also "any felony in which the defendant personally used a dangerous or deadly weapon" is listed as a serious felony. (§ 1192.7, subd. (c)(23).)
Subdivision (c) of section 667.5 currently states: "For the purpose of this section, 'violent felony' shall mean any of the following: [¶] (1) Murder or voluntary manslaughter. [¶] (2) Mayhem. [¶] (3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262. [¶] (4) Sodomy as defined in subdivision (c) or (d) of Section 286. [¶] (5) Oral copulation as defined in subdivision (c) or (d) of Section 288a. [¶] (6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288. [¶] (7) Any felony punishable by death or imprisonment in the state prison for life. [¶] (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55. [¶] (9) Any robbery. [¶] (10) Arson, in violation of subdivision (a) or (b) of Section 451. [¶] (11) Sexual penetration as defined in subdivision (a) or (j) of Section 289. [¶] (12) Attempted murder. [¶] (13) A violation of Section 12308, 12309, or 12310. [¶] (14) Kidnapping. [¶] (15) Assault with the intent to commit a specified felony, in violation of Section 220. [¶] (16) Continuous sexual abuse of a child, in violation of Section 288.5. [¶] (17) Carjacking, as defined in subdivision (a) of Section 215. [¶] (18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. [¶] (19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code. [¶] (20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code. [¶] (21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary. [¶] (22) Any violation of Section 12022.53. [¶] (23) A violation of subdivision (b) or (c) of Section 11418."
Robbery was added to this statutory list of violent felonies by the passage of Proposition 21 on March 8, 2000. (Doe v. Saenz (2006) 140 Cal.App.4th 960, 974; People v. Deporceri (2003) 106 Cal.App.4th 60, 6566, fns. 6, 7.)
5. The Prosecution was not Required To Plead Or Prove
That Robbery is a Violent Felony.
On appeal, defendant asserts that the 10-year gang enhancement authorized by section 186.22 (b)(1)(C) cannot be imposed without the prosecution pleading and the jury finding that the robbery committed by a defendant, in addition to being "for the benefit of, at the direction of, or in association with any criminal street gang" and "with the specific intent to promote, further, or assist in any criminal conduct by gang members" was also a violent felony. Thus, the trial court imposed an unauthorized sentence, which can be challenged for the first time on appeal. (People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 (Mancebo).)
A. The Pleadings
On appeal defendant asserts, "[a] violent felony was not pleaded so that section 186.22(b)(1)(C)'s added ten years could not be imposed." "The prosecution waived section 186.22, subdivision (b)(1)(B)'s or (C)'s application by failing to have the matter resolved at trial." "[T]he 10-year section 186.22(b)(1)(C) enhancement violated [defendant's] right to [be] informed of the nature and cause of the charges against him guaranteed by the Sixth and Fourteenth Amendments."
As this court recently reiterated in Torres, supra, 198 Cal.App.4th 1131, 11391140: " 'Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. (U.S. Const., 6th Amend. ["the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation"]; id., 14th Amend.; Cal. Const., art. I, § 15.) "Notice of issues to be resolved by the adversary process is a fundamental characteristic of fair procedure." [Citation.] "The 'preeminent' due process principle is that one accused of a crime must be 'informed of the nature and cause of the accusation.' [Citation.] Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial." (People v. Jones (1990) 51 Cal.3d 294, 317.)' (People v. Seaton (2001) 26 Cal.4th 598, 640-641.)"
Even before section 1170.1, subdivision (e) was amended to require pleading and proof of all enhancements, appellate courts had recognized that the due process requirement of fair notice also applies to sentence enhancements. Summarizing People v. Najera (1972) 8 Cal.3d 504 (Najera) (criticized on other grounds in People v. Wiley (1995) 9 Cal.App4th 500, 588), (People v. Hernandez (1988) 46 Cal.3d 194 (Hernandez) (criticized on other grounds in People v. King (1993) 5 Cal.4th 57, 78, fn. 5), and People v. Haskin (1992) 4 Cal.App.4th 1434 (Haskin), Mancebo, supra, 27 Cal.4th 735 stated that, despite factual distinctions, "all three decisions acknowledge at the threshold that, in addition to the statutory requirements that enhancement provisions be pleaded and proven, a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes." (Id. at p. 747.)
A criminal defendant is entitled to pleading notice that the prosecution is seeking a sentence enhancement, but the pleading need not cite the enhancement statute accurately (People v. Neal (1984) 159 Cal.App.3d 69, 73; cf. People v. Thomas (1987) 43 Cal.3d 818, 826-827) or indeed at all (People v. Tardy (2003) 112 Cal.App.4th 783, 787), so long as the pleading otherwise alleges every fact and circumstance on which imposition of the enhancement depends. (Ibid.)
Defendant asserts that People v. Neal, supra, 159 Cal.App.3d 69 has been implicitly abrogated by subsequent authority. We disagree. People v. Thomas, supra, 43 Cal.3d 818 observed that Neal "engaged in the proper analysis." (Id. at p. 830.) People v. Thomas was distinguished in Mancebo, supra, 27 Cal.4th 753, 747-748, but it was not disapproved. In any event, as we will show, subsequent authority does not support defendant's contentions.
In this case the information, in a separate paragraph under count 1 with the heading "E: CRIMINAL STREET GANG," alleged that "defendant committed said crime for the benefit of, at the direction of, or in association with NORTENO CRIMINAL STREET GANG, with the specific intent to promote, further, or assist in any criminal gang by gang members, in violation of Penal Code Section 186.22(b)(1)." It is fairly apparent that this separate allegation under count 1 was intended to justify a sentence enhancement. The information not only alleged the existence of facts qualifying defendant for imposition of the enhancement, but also cited the statutory subdivision that includes the entire range of enhancements for such conduct. As noted above, section 186.22(b)(1) provides for different enhancements, including five years if the felony is serious (§ 186.22(b)(1)(B)) and 10 years if the felony is violent (§ 186.22(b)(1)(C)).
It is true that this paragraph of the information did not allege the specific enhancement sought, either by citing the applicable subsection of the subdivision cited or by naming a term of years. However, we are aware of no authority requiring such exactitude as a matter of due process.
As we will explain, none of the six cases on which defendant relies establishes that there was a pleading error in our case. Indeed, they confirm that the information's allegation of the section 186.22(b)(1) enhancement afforded defendant the process he was due.
The three earliest cases cited by defendant simply establish, under varying factual patterns, that a trial court cannot impose a sentence enhancement when the information neither cited the applicable enhancement statute nor alleged all the facts required to justify its imposition and those facts were neither admitted by the defendant (Haskin, supra, 4 Cal.App.4th 1434, 1440 ["Because appellant was neither statutorily nor factually charged with, nor consented to, a substituted section 667 enhancement in conjunction with the 1979 offense, the trial court was without authority to impose a sentence greater than that authorized by section 667.5, subdivision (b), the charging statute which appellant admitted."]) nor found by the fact-finder. (Najera, supra, 8 Cal.3d 504, 512 ["the People waived the application of section 12022.5 [pertaining to personal firearm use] by failing to have the matter resolved at trial."]; Hernandez, supra, 46 Cal.3d 194, 208 [it was a violation of due process to impose a kidnapping enhancement on a rape conviction under section 667.8 when "no notice whatsoever, not just of the code section but of the mens rea required by section 667.8, was given either in the information, arguments of counsel, or evidence produced at trial."].)
In two of those cases the court determined that the factual questions involved in imposing the enhancements should be found by a jury unless waived. (Najera, supra, 8 Cal.3d 504, 510 ["Section 12022.5 therefore requires a jury determination of the factual question whether or not defendant used (fn. omitted) a firearm in the commission of the underlying offense, unless defendant has waived a jury trial or has pleaded guilty."] Hernandez, supra, 46 Cal.3d 194, 208 ["Interpreting section 667.8 to require pleading and proof of its specific mental state before its additional three-year term may be imposed will also avoid constitutional problems."].)
In all of those cases, the information had alleged some, but not all, of the facts warranting imposition of the enhancement. In Najera, supra, 8 Cal.3d 504, where a firearm use enhancement was imposed, the information alleged and the jury found that the defendant was armed with a gun during a robbery, but this finding "was insufficient to establish his use of a firearm." (Id. at p. 510.) In Hernandez, supra, 46 Cal.3d 194, when a kidnapping enhancement was imposed on a rape conviction, the defendant was convicted of the crimes of kidnapping and rape, but "section 667.8 must be read to require not just a motive but a specific mental state which must be found to exist before the enhanced term may be imposed. Certainly it involves a new fact not established merely by defendant's conviction for rape and kidnapping." (Id. at p. 204.) In Haskin, supra, 4 Cal.App.4th 1434, when a fiveyear serious felony enhancement was imposed on a 1979 burglary conviction under section 667, the information did charge that the defendant had some prior serious felony convictions, but it did not so characterize the 1979 conviction for which he served a prison term. As to that conviction, "appellant was charged under a specific enhancing statute—section 667.5, subdivision (b)—and the factual allegations thereto supported that charging statute. However, those factual allegations were insufficient to support a section 667 enhancement, the statute upon which appellant's sentence was based." (Haskin, supra, 4 Cal.App.4th 1434, 1439.)
In our case, unlike these cases, the information alleged all the facts warranting imposition of a section 186.22(b)(1) enhancement and also cited this subdivision. None of these cases discussed whether due process requires alleging the precise subsection of an enhancement statute before the enhancement can be imposed at sentencing.
This issue was considered in Mancebo, supra, 27 Cal.4th 735, which involved a complicated factual and legal situation. The defendant was charged with committing ten sex offenses on two victims on separate dates, each time using a gun to get his way. (Id. at p. 740.) Presumably guided by Najera, each count alleged that he "had personally used a gun within the meaning of section 12022.5(a)." (Ibid.) The information also included other allegations to bring the defendant under provisions of the "One Strike" law, section 667.61, which "set forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force." (Id. at p. 741; fn. omitted.) Among the statute's provisions is that an indeterminate sentence of 25 years to life applies if a current offense involves two or more circumstances specified in subsections of section 667.61, subdivision (e). As to six counts, the information alleged two special "circumstances of kidnapping and gun use." (Id. at p. 740.) As to two other counts, "it was alleged that the circumstances of gun use and 'tying or binding' the victim applied." (Ibid.)
The jury found the defendant guilty as charged and found all the enhancement allegations true. (Mancebo, supra, 27 Cal.4th 735, 740.) The issue on appeal was whether the trial court, at sentencing, was warranted in substituting a new special circumstance as to each victim so that the gun use findings could be used to justify imposition of 10-year gun use enhancements and the underlying terms would still be indeterminate. The special circumstance employed by the trial court was that the defendant had committed offenses against two victims, even though "the information never alleged the multiple victim circumstance and was never amended to include it, nor was its numerical subdivision ((e)(5)) ever referenced in the pleadings." (Ibid.)
In a four to three decision, the Supreme Court concluded "that given the express pleading and proof requirements of section 667.61, gun use, having been properly pled and proved as a basis for One Strike sentencing, was unavailable to support section 12022.5(a) enhancements." (Mancebo, supra, 27 Cal.4th 735, 739.) As the court explained, section 667.61, subdivision (f) explicitly provides that, if a special circumstance justifying application of the One Strike law is pled and proved, it must be used to impose the term provided by section 667.61 and cannot be used to impose the punishment authorized under any other law, unless the prosecution has pled and proved additional special circumstances. (Id. at pp. 743-744.)
The People in Mancebo argued that the multiple victim special circumstance was effectively pled and proved, as the information described crimes involving two victims. (Mancebo, supra, 27 Cal.4th 735, 744.) The court rejected this contention as follows. "The language of subdivision (i) of section 667.61, requiring that '[f]or 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,' is straightforward and plain. So too is the further requirement of subdivision (f) that the 'circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) [be] pled and proved . . . .' The information in this case expressly alleged the gun-use, kidnapping, and tying or binding circumstances, and made specific reference to subdivision (e) of section 667.61 in which they are set forth. There can be little doubt that the prosecution understood the One Strike law's express pleading requirements and knew how to comply with them. We agree with the Court of Appeal's conclusion that the People's failure to include a multiple-victim-circumstance allegation must be deemed a discretionary charging decision. Not only is this conclusion supported by the record, but respondent does not contend, much less suggest, how the failure to plead the multiple victim circumstance was based on mistake or other excusable neglect. Under these circumstances, the doctrines of waiver and estoppel, rather than harmless error, apply. (Hernandez, supra, 46 Cal.3d at pp. 208-209 ['It is unnecessary to . . . engage in a harmless-error analysis when defendant's due process right to notice has been completely violated']; Najera, supra, 8 Cal.3d at p. 512 ['We conclude that the People waived application of section [667.61, subdivision (e)(5)] by failing to have the matter resolved at trial'].)" (Mancebo, supra, 749.)
The court cautioned "that our holding is limited to a construction of the language of section 667.61, subdivisions (f) and (i), read together as controlling here." (Mancebo, supra, 27 Cal.4th 735, 745, fn. 5.) It was not intended as an interpretation of the pleading and proof requirements in other statutes. (Ibid.)
The court noted another limitation of its holding. "[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. We do not purport to choose among them." (Mancebo, supra, 27 Cal.4th 735, 753-754.)
Thus, Mancebo supports the proposition that, even under the detailed pleading requirements of section 667.61, there is no need to cite the specific statutory subsection in the information, so long as there is a general reference to the statute and an allegation of any qualifying factual circumstances.
People v. Ramirez (2003) 109 Cal.App.4th 992 (Ramirez), on which the People rely, also rejected a contention that the charging document must allege the specific subdivision of an enhancement statute. A felony complaint alleged two counts, a violation of section 191.5, gross vehicular manslaughter while intoxicated, and a violation of Vehicle Code section 20001, subdivision (a). (Id. at p. 996.) Vehicle Code section 20001, subdivision (a) defines the crime of a driver refusing to stop at the scene after being involved in an injury accident. Subdivision (b) of that statute provides different sentence ranges depending on whether death or permanent serious injury results from the accident. Subdivision (c) of that statute states in pertinent part: "A person who flees the scene of the crime after committing a violation of Section 191.5 of, or paragraph (1) of subdivision (c) of Section 192 of the Penal Code, upon conviction of any of those sections, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact." (Ramirez, supra, 109 Cal.App.4th at p. 997.)
In Ramirez the defendant signed a felony disposition statement pleading guilty to violations of section 191.5, subdivision (a) and Vehicle Code section 20001, subdivisions (a) and (c) and acknowledged he could receive a sentence of up to 15 years. (Ramirez, supra, 109 Cal.App.4th 992, 996.) The trial court imposed a nine-year term which included a consecutive five-year term as provided in Vehicle Code section 20001, subdivision (c). (Id. at p. 995.) On appeal the defendant contended that "the trial court erred by imposing this latter term because the felony complaint did not specifically allege subdivision (c) of [Vehicle Code] section 20001 or provide appellant adequate notice of the mandatory consecutive five-year term." (Ramirez, supra, 109 Cal.App.4th 992, 995.) The appellate court distinguished Mancebo and found no violation of due process. (Id. at pp. 1000-1001.) "Here, the felony complaint specifically alleges that appellant committed gross vehicular manslaughter while intoxicated, and that he left the scene of that incident in violation of section 20001. It thus alleges every fact necessary to place appellant on notice that he is subject to the mandatory consecutive five-year term under section 20001, subdivision (c). Although it is better practice, the People were not required to allege the specific subdivision of the statute that appellant violated, per se, so long as the complaint contained 'words sufficient to afford notice to [appellant] of the offense charged . . . .' [Citation.] The complaint here served that function." (Id. at pp. 999-1000.)
Other opinions after Mancebo on which defendant relies add nothing pertinent. In People v. Botello (2010) 183 Cal.App.4th 1014 (Botello), the information alleged and the jury found true multiple enhancements of the crimes of shooting at an inhabited dwelling and attempted premeditated murder. The jury found a gang enhancement under section 186.22 (b)(1)(C) and enhancements for personal use and discharge of a firearm under section 12022.53, subdivisions (b), (c), and (d). (Id. at p. 1021.) There was, however, no allegation under section 12022.53, subdivision (e), that extends the application of those enhancements to a person who does not personally use or discharge a firearm if the person is a principal in the offense and violated section 186.22(b) and another principal in the offense personally used or discharged a firearm. (Id. at p. 1022.)
People v. Arias (2010) 182 Cal.App.4th 1009 (Arias) is not really an enhancement case. The jury was instructed to determine whether alleged attempted murders involved premeditation and deliberation, though the charging document "did not allege the attempted murders were willful, deliberate, and premeditated. Nor did counts 2 and 3 reference subdivision (a) of section 664. No request was made to amend the information to include the required allegations, and nothing in the record suggests the information was ever amended." (Id. at p. 1017.) Under these circumstances, the appellate court reversed a sentence for attempted premeditated murder, noting "neither the information nor any pleading gave defendant notice that he was potentially subject to the enhanced punishment provision for attempted murder under section 664, subdivision (a)." (Id. at p. 1019.)
Though Arias characterized the punishment for attempted premeditated murder as a "special sentencing enhancement" (id. at p. 1020), attempted premeditated murder is properly understood as a separate and greater offense than attempted murder. (People v. Seel (2004) 34 Cal.4th 535, 548.) The pleading defect in Arias thus was the equivalent of omitting an element of the offense.
Oddly, in Botello, supra, 183 Cal.App.4th 1014, the trial court instructed the jury on the components of the uncharged section 12022.53, subdivision (e) enhancement, but did not provide the jury with verdict forms on that enhancement and no findings were made. (Id. at p. 1021.)
On appeal, the People conceded there was insufficient evidence to support imposition of any indeterminate enhancements of 25 years to life for personal use or discharge of a firearm. (Id. at p. 1022.) However, the People sought to preserve those enhancements on appeal on a different theory, namely the jury had found all the facts under other allegations justifying imposition of an enhancement under section 12022.53, subdivision (e). The appellate court rejected this contention, stating: "the information charged each defendant with personally committing acts specified in the firearm enhancements of section 12022.53, subdivisions (b) through (d), but did not mention the applicability of those enhancements through subdivision (e)(1), either by designation of that provision or by description of the required circumstances, i.e., that defendants were subject to the enhancements of subdivisions (b) through (d) because they violated section 186.22, subdivision (b) and because a principal committed an act described in section 12022.53, subdivisions (b) through (d). Thus, 'no factual allegation in the information or pleading in the statutory language informed defendant[s] that if [they were] convicted of the underlying charged offenses,' they would be subject to the firearm enhancements of section 12022.53, subdivisions (b) through (d) by virtue of the circumstances listed in subdivision (e)(1)." (Botello, supra, 183 Cal.App.4th 1014, 1027, quoting Mancebo, supra, 27 Cal.4th at p. 745.)
Mancebo, the most relevant precedent cited by defendant, must be understood as primarily an interpretation of the special pleading and proof requirements of the One Strike statute, section 667.61. Section 186.22(b)(1) does not contain similarly restrictive requirements. Indeed, it contains no explicit pleading and proof requirements, though we do not question that the prosecution is required, both by statute (§ 1170.1, subd. (e)) and due process (see In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1002, fn. 7), to plead and prove the facts warranting imposition of gang enhancements.
The precedent discussed above establishes that due process requires no more of a charging document than either it references the specific statutory subdivision that authorizes the sentence enhancement sought by the prosecution or it alleges the facts warranting imposition of the enhancement in a way that provides notice to the defendant of the prosecution's intent. It is also sufficient to both allege all the qualifying facts and generally reference the enhancement statute, as did the section 186.22(b)(1) allegations in this case.
Defendant's opening brief reviews the above precedent in detail, but it paints with broad strokes in suggesting what, if anything, is missing from the information. Defendant suggests that the information was required to allege that robbery is a violent felony.
We note that the count 1 allegations of a robbery included that the "above offense is a serious FELONY within the meaning of Penal Code section 1192.7(c)(19)." We assume that this allegation was made in an attempt to prequalify the robbery as a serious felony under section 969f. (See People v. Leslie (1996) 47 Cal.App.4th 198, 204.) Section 969f, subdivision (a) provides: "Whenever a defendant has committed a serious felony as defined in subdivision (c) of Section 1192.7, the facts that make the crime constitute a serious felony may be charged in the accusatory pleading. However, the crime shall not be referred to as a serious felony nor shall the jury be informed that the crime is defined as a serious felony. This charge, if made, shall be added to and be a part of the count or each of the counts of the accusatory pleading which charged the offense. If the defendant pleads not guilty to the offense charged in any count which alleges that the defendant committed a serious felony, the question whether or not the defendant committed a serious felony as alleged shall be tried by the court or jury which tries the issue upon the plea of not guilty. If the defendant pleads guilty of the offense charged, the question whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant." Defendant does not expressly assert that he was misled by the information characterizing robbery as a serious felony.
Section 969f was enacted effective in 1991 (People v. Leslie, supra, 47 Cal.App.4th 198, 204), before the 1994 enactments of the Three Strikes statutes (§§ 667, subds. (b)-(i); 1170.12). (People v. Hazelton (1996) 14 Cal.4th 101, 104-105.) In 1991, the consequence of pleading and proving a prior serious felony conviction under section 667, subdivision (a) was a five-year enhancement if the person was convicted of a new serious felony. (People v. Equarte (1986) 42 Cal.3d 456, 461.)
In People v. Yarbrough (1997) 57 Cal.App.4th 469, this court pointed out that there are two essentially different types of serious felonies. Most of the categories of serious felonies listed in section 1192.7, subdivision (c) "are based on defined offenses," but some felonies qualify as serious felonies only if accompanied by special circumstances such a personal infliction of great bodily injury or personal use of a dangerous or deadly weapon. (Id. at p. 474.) "Thus, while a robbery, rape or murder conviction is ipso facto a serious felony conviction," it requires additional evidence to establish that these other felonies are serious. (Ibid.) Though robbery is ipso facto a serious felony, the information before us also separately alleged as an enhancement that defendant had used a knife as a deadly and dangerous weapon, causing the robbery to be a serious felony within the meaning of section 1192.7, subdivision (c)(23).
The California Supreme Court later made the same point. "Section 1192.7, subdivision (c), lists some felonies that are per se serious felonies, such as murder, mayhem, rape, arson, robbery, kidnapping, and carjacking. If a defendant's prior conviction falls into this group, and the elements of the offense have not changed since the time of that conviction, then the question whether that conviction qualifies as a serious felony is entirely legal." (People v. Kelii (1999) 21 Cal.4th 452, 456 (Kelii).)When the seriousness of a felony depends on a special qualifying circumstance, then "the determination does have a factual content." (Ibid.)
These same observations apply to the list of violent felonies in section 667.5, subdivision (c). Many felonies, including robbery, are deemed violent by statute and may be regarded as inherently violent. Because of this statutory equivalence, proving that a defendant committed a robbery necessarily establishes that the defendant committed a violent felony. No additional fact needs to be alleged, proved, or found. Identifying robbery as a violent felony requires nothing more than reading section 667.5, subdivision (c)(9). Alleging that robbery is a violent felony would thus be a mere tautology. The allegation, as it is a legal conclusion, is incapable of factual proof.
These observations apply equally to the allegation in this case that robbery is a serious felony, but there is no question in this appeal about whether due process or section 969f required or authorized this allegation. We believe that the section 969f provisions are intended to apply when certain facts must be proved to qualify as felony as serious.
While a criminal information would doubtless be more informative to a defendant if, in addition to alleging the facts justifying a criminal conviction and a prison sentence, the information also explained all possible legal ramifications of the facts alleged and quoted applicable provisions of the Penal Code, due process is not this exacting. The information was required to allege what facts needed to be found in order to impose one of the several section 186.2(b)(1) enhancements on defendant. Those facts were alleged in this case, namely that defendant committed a robbery for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal gang by gang members. As robbery is inherently a violent felony by statute, we conclude that due process did not require the prosecution to allege this statutory equation. Defendant has identified no pleading deficiency in the allegation of the section 186.22(b)(1) gang enhancement.
B. The Jury Findings
Defendant also asserts, "the jury did not make a finding that the charged felony was a serious felony or a violent felony." Consequently neither the five-year enhancement authorized by 186.22(b)(1)(B) nor the 10-year enhancement authorized by section 186.22(b)(1)(C) applies. Defendant argues further that, assuming the verdict finding defendant guilty "as charged in Count 1" meant that the crime was a serious felony, the jury did not find that it was a violent felony.
In this case, as noted above, the jury was neither instructed that robbery is a serious or violent felony nor was it asked to make such a finding. We do not construe the verdict as reflecting a jury finding that robbery is a serious felony within the meaning of section 1192.7, subdivision (c)(19). As we will explain, defendant was not entitled to a jury finding that robbery is a violent felony within the meaning of section 667.5, subdivision (c)(9).
In Kelii, supra, 21 Cal.4th 452, the California Supreme Court answered the related question "whether the court or the jury determines if a prior felony conviction qualifies as a 'serious felony' for purposes of the 'Three Strikes' law." (Id. at p. 454.) The court noted that sections 1025 and 1158 confer a statutory right to have a jury determine whether a defendant had suffered a prior conviction. (Id. at p. 455.) As quoted above, the court explained that some felonies are per se serious felonies under section 1192.7, subdivision (c). As to those felonies, "the question whether that conviction qualifies as a serious felony is entirely legal." (Id. at p. 456.) While the existence of circumstances qualifying other felonies as serious (such as whether a burglary was of a residence) does involve "a factual content," "these factual questions are of limited scope" (ibid.) and it " ' is the type of inquiry traditionally performed by judges as part of the sentencing function.' " (Id. at p. 457.) Kelii concluded "that the court, not the jury, determines whether a conviction is serious." (Id. at p. 454.) This statement was made in the context of determining the nature of a prior felony conviction. Kelii did not discuss or even mention the provisions of section 969f authorizing the prosecution to obtain a jury determination of whether the current offense qualifies as a serious felony.
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny, decided after Kelii, have changed the legal foundation for requiring sentence enhancements to be pled and proved. Apprendi established the general rule under the Sixth Amendment that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.)
The prior conviction exception in Apprendi was made to accommodate the high court's decision in Almendarez-Torres v. U.S. (1998) 523 U.S. 224. (People v. McGee (2006) 38 Cal.4th 682, 698-699 (McGee).) In McGee, the California Supreme Court explored "(1) the breadth or scope of the so-called Almendarez-Torres exception applicable to an increase in sentence based upon a defendant's recidivism, and (2) the specific nature of the inquiry that is required to be made under California law in this matter." (Id. at p. 702.) In light of this exception in Apprendi, McGee essentially adhered to Kelii and concluded that there is no federal constitutional right to have a jury determine whether a prior out-of-state robbery conviction qualifies as a serious felony and a strike under the Three Strikes statutes. "[W]e are reluctant, in the absence of a more definitive ruling on this point by the United States Supreme Court, to overturn the current California statutory provisions and judicial precedent that assign to the trial court the role of examining the record of a prior criminal proceeding to determine whether the ensuing conviction constitutes a qualifying prior conviction under the applicable California sentencing statute. Such a function is a task for which a judge is particularly well suited." (Id. at p. 686.)
The California Supreme Court restated this holding in terms of sentence enhancements. "This is what Apprendi teaches us: Except for sentence enhancement provisions that are based on a defendant's prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the 'prescribed statutory maximum' punishment for that crime. (Apprendi, supra, 530 U.S. at p. 490.)" (People v. Sengpadychith (2001) 26 Cal.4th 316, 326 (Sengpadychith).)In dictum, Sengpadychith observed that it would be federal constitutional error for a trial court to fail to instruct a jury on an element of a gang enhancement under section 186.22 (b)(1). (Id. at p. 327.)
A restriction on earning presentence custody credits after a violent felony conviction (§ 2933.1) is not understood as enhancing or increasing the penalty for the crime. People v. Garcia (2004) 121 Cal.App.4th 271 concluded that there is no statutory or federal constitutional right to a jury trial of facts relating to presentence conduct credits. (Id. at pp. 277-280.) The information in that case alleged that the burglary charged "was a violent felony under section 667.5, subdivision (c)(21), because 'another person, other than an accomplice, was present in the residence during the commission of the burglary.' " (Id. at p. 275, fn. omitted.) The appellate court concluded, "just as the trial court properly determines as a matter of state law whether a prior conviction qualifies as a strike (Kelii, supra, 21 Cal.4th at pp. 452, 457-458), so too determining whether a defendant's current conviction for first degree burglary is a violent felony for the purpose of calculating presentence conduct credits is properly a part of the trial court's traditional sentencing function." (Id. at p. 274.)
On the other hand, a failure to instruct on section 186.22, subdivision (b)(5), which sets a minimum date for parole eligibility, does not extend the maximum punishment for felony offenses already punishable by an indeterminate life term, and therefore does not violate Apprendi. (Sengpadychith, supra, 26 Cal.4th 316, 327.)
Of course, just because the trial court determines whether a prior felony conviction is serious does not necessarily mean that the court also determines whether a current felony conviction is serious or violent. As already noted, section 969f, quoted above (beginning on p.19), authorizes the prosecution to allege that the current conviction is a serious felony, and when such allegation is made, "the question whether or not the defendant committed a serious felony as alleged shall be tried by the court or jury which tries the issue upon the plea of not guilty." (Cf. People v. Taylor (2004) 118 Cal.App.4th 11, 27 (Taylor).)
We agree with Taylor that "[u]nder Apprendi, . . . a criminal defendant has a right to jury trial as to any factual issue that must be resolved in order to determine whether the charged offense is a serious felony for the purpose of imposing a sentence enhancement under section 667, subdivision (a)(1)." (Taylor, supra, 30.) The real question before us is what factual issues, if any, must be resolved to justify imposition of a 10-year gang enhancement under section 186.22 (b)(1)(C)
In Taylor, supra, 118 Cal.App.4th 11, a jury convicted the defendant of several crimes, including battery with serious bodily injury (§ 243, subd. (d)), while finding not true an enhancement for personally inflicting great bodily injury (§ 12022.7). (Taylor, supra, 118 Cal.App.4th 11, 17-18.) Notwithstanding the jury findings, the trial court concluded that the current crimes were serious felonies for purposes of imposing five-year enhancements for prior serious felony convictions (§ 667, subd. (a)(1)) due to the qualifying circumstance that defendant had personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)). (Id. at pp. 22-23.)
The issue on appeal in Taylor was not quite who decides whether the current crime is a serious felony, but whether the trial court was free to contradict the jury's findings in making its decision. The appellate court concluded, "Because the jury here specifically found that Taylor had not inflicted great bodily injury, and its finding of serious bodily injury was not equivalent to a finding of great bodily injury, the trial court was not at liberty to make what amounted to a legal determination that Taylor had in fact inflicted great bodily injury." (Id. at p. 27.)
As we understand Apprendi and Sengpadychith, in order for any gang enhancement to be imposed under section 186.22(b)(1), a jury must find each of the factual components described in that section. In other words, the jury must find that the defendant committed a felony for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal gang by gang members. The jury must also find any and all facts that qualify the felony as a serious or violent felony before either of those enhancements is imposed. (Cf. People v. Bautista (2005) 125 Cal.App.4th 646, 655 (Bautista) ["As to subdivision (c)(8) of section 1192.7, it is clear that appellant was entitled, under federal constitutional law, to a jury determination whether his count 1 offense included personal use of a firearm and was thus a serious felony."].)
In Bautista, supra, 125 Cal.App.4th 646, the charged crime of discharge of a firearm was not a serious felony for purposes of five-year enhancements under section 667 unless the jury found one of several special circumstances. The jury was not asked to find whether the charged crime of discharge of a firearm "included personal use of a firearm" so as to qualify the felony as serious. (Id. at p. 655.) However, the jury did find true a section 186.22(b)(1) enhancement. (Id. at p. 649.) The appellate court affirmed "the addition of a five-year enhancement term to appellant's sentence on count 1 pursuant to section 667, subdivision (a), on the basis the jury's finding on the section 186.22, subdivision (b)(1) enhancement was tantamount to a finding that the offense in count 1 was a serious felony pursuant to section 1192.7, subdivision (c)(28)." (Id. at p. 657.)
In this case, as already noted, the jury found that defendant committed a robbery. By so finding, the jury implicitly also found that defendant committed a violent felony. We believe that nothing more is required by Apprendi and its progeny to resolve this issue. When a crime is violent by statutory definition, the jury is not required to find the statutory definition. That is a legal, not a factual, determination. (Cf. Kelii, supra, 21 Cal.4th 452, 456.)
In this case, we conclude that the jury has already found every fact warranting imposition of a section 186.22(b)(1)(C) 10-year enhancement, namely, defendant was convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist criminal conduct by gang members, and that felony was robbery, which is violent as a matter of law. We reject defendant's suggestion that the jury was also required to find that section 667.5, subdivision (c)(9) provides that robbery is a violent felony.
6. Disposition
The judgment is affirmed.
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Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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WE CONCUR:
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BAMATTRE-MANOUKIAN, ACTING P.J.
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MIHARA, J.