Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Super.Ct.No. FVI023321
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Andre Ledon Booker.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant Rudolph June Johnson.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Marvin E. Mizell and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Andre Ledon Booker appeals from his conviction of robbery (Pen. Code, § 211) and possession of a firearm by a felon (§ 12021, subd. (a)(1)) with related enhancements. He contends the trial court prejudicially erred by giving an erroneous instruction on the elements of aiding and abetting a robbery. Booker also joins in the arguments of his codefendant to the extent they benefit him.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant Rudolph June Johnson appeals from his conviction of robbery (§ 211), assault with a firearm (§ 245, subd. (a)(2)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)) with related enhancements. He contends the prosecutor used peremptory challenges to exclude African-American jurors, thereby violating Johnson’s right to a jury drawn from a representative cross-section of the community. He also contends the trial court’s oral pronouncement of sentence and the abstract of judgment were erroneous.
We find no prejudicial errors, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
On August 3, 2005, Ragina Chhina, the owner of R & M Postal in Victorville, left her store between 6:15 and 6:25 p.m. carrying her purse and a red bank deposit bag. The red bag contained $59,000 in cash, wrapped for bank deposit in $2,000 packages with purple bank strapping and $1,000 packages with yellow bank strapping. The red bag also contained approximately $21,000 in checks made out to Southern California Edison. Chhina’s purse contained an additional $3,500 in cash.
Chhina was placing the bags in the trunk of her car when a man, whom Chhina identified in court as Johnson, grabbed her around the neck, pointed a handgun at her, and told her he would shoot her if she moved. The man pushed her to the ground, stood on her hands, and ordered her to release the bags. She did not immediately release her bags, so he struck her head with the gun and said he would shoot her unless she let go of the bags. He also ordered her not to look at him, but she did get a look at his face. Johnson seized the purse and bag, and he and a second man who was with him ran away very fast. The two men “were very close when they were running,” and they were just a few feet from Chhina when she first noticed the second man.
Chhina selected a photograph of Johnson as the assailant, and she later identified him in court at the preliminary hearing. She was unable to identify the second man.
Chhina suffered a wound to her head, which bled profusely and resulted in a two-inch scar. Chhina’s purse with $3,155 inside was found in the trash enclosure at the apartment building. She also recovered $6,400 of the $59,000 that had been in the red bag.
San Bernardino County Sheriff’s Deputy Darin Lansdown was off duty on August 3 when visiting the shopping center where R & M Postal was located. He saw two or three men running “full-out” through the parking lot; one of the men held a handgun, and a second man carried a red bag and a purse. The man with the gun stopped briefly and pointed the gun toward a pickup truck in the parking lot. The two men then continued running toward a nearby apartment complex. Deputy Lansdown followed the men in his car. Deputy Lansdown saw one of the men take off his shirt and place it and the bags in the trunk of a Toyota Corolla. The two men got in the car and drove away. Deputy Lansdown relayed the car’s license plate number to the police and followed the car until he lost sight of it.
The next day, Deputy Lansdown identified photographs of Booker as the man with the gun and the driver, and Johnson as the other man he had seen running. Deputy Lansdown also identified both defendants in court.
The Toyota Corolla was found abandoned. The trunk of the Toyota Corolla contained a purple and white cash strap. Officers served a search warrant on Johnson’s residence, and in the search, they found $6,200 in cash, some of which was banded with purple cash straps.
The officers also found a car key in the Toyota Corolla; the key fit an impounded Ford Explorer that had been found abandoned in Victorville. The Ford Explorer was registered to Booker and contained a traffic citation in Booker’s name and paycheck stubs for Johnson.
An employee of a rental car company testified that on August 2, 2005, Farries Jackson, Booker’s aunt, rented the Toyota Corolla. Jackson was accompanied by two men, one of whom the rental car employee identified in court as Johnson. The employee had previously selected Booker’s photograph from a photographic lineup as one of the men who had accompanied Jackson.
On October 4, 2005, Booker was taken into custody in Minnesota, where he had been using a false name, and he showed false identification to the officer who arrested him.
Booker’s girlfriend testified she and Booker had been living in a motel in Victorville in August 2005, and Booker had been working at Target. Booker’s Ford Explorer broke down, and he was driving a rented Toyota Corolla. On the afternoon of the offenses, Johnson took the Toyota Corolla while Booker remained at the motel. The next day, Booker told her they had to leave town.
The jury found both defendants not guilty of attempted carjacking (count 3, §§ 664, 215, subd. (a)), and found Booker not guilty of assault with firearm (count 2, § 245, subd. (a)(2)).
Evidence relating primarily to the attempted carjacking charge has been omitted from the statement of facts.
The jury found Booker guilty of robbery (count 1, § 211) and possession of a firearm by a felon (count 4, § 12021, subd. (a)(1)). The jury also found true the allegations that Booker had 14 prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and four prior serious felony convictions (§ 667, subd. (a)(1)).
Booker moved for dismissal of his strike priors under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied the Romero motion and sentenced Booker to 25 years to life for the robbery, plus a consecutive 5-year term for each of the 4 prior serious felony convictions. The court imposed a sentence of 25 years to life for being a felon in possession of a firearm but stayed that term under section 654.
The jury found Johnson guilty of robbery (count 1, § 211), assault with a firearm (count 2, § 245, subd. (a)(2)), and possession of a firearm by a felon (count 5, § 12021, subd. (a)(1)). The jury also found true the enhancement allegations as to counts 1 and 2 that Johnson personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b), 1203.06, subd. (a)(1)), and inflicted great bodily injury (§ 12022.7, subd. (a)). Johnson admitted that he had six prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), three prior serious felony convictions (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)).
Johnson moved for dismissal of his strike priors. The trial court denied the motion and sentenced him to 35 years to life for the count 1 robbery, plus a consecutive 5-year term for each of the 3 prior serious felony convictions, a consecutive 1-year term for each of the 2 prior prison terms, a consecutive 3-year term for great bodily injury, and a consecutive 10-year term for the personal use of a firearm, for a total term of 35 years to life plus 30 years. The trial court stayed all other sentences for the remaining counts and enhancements.
III. DISCUSSION
A. Use of Peremptory Challenges in Jury Selection
Johnson, joined by Booker to the extent the argument benefits him, contends on appeal that the prosecutor excused two African-American potential jurors, G.H. and Gene W., on the basis of group bias.
1. Background
a. Voir dire of Gene W.
Gene W. stated in voir dire that he was 18 years old and had just graduated from high school, although he had taken some classes at junior college. He lived with his mother and planned to start college in a few weeks. When Booker’s attorney asked Gene W. if he could stand his ground if he thought he was right but the other 11 jurors disagreed with him, Gene W. stated he would “stand my ground because I have a lot of friends that are activists, and they express their opinions really loudly . . . and that characteristic rubbed off on me . . . .” When asked to give an example of having stood up to a group, he responded, “[p]rotesting when -- well, this one when protesting went to downtown L.A. [sic] to protest against the war.”
Johnson’s counsel asked Gene W. why he thought he could be a “fair and impartial juror sitting in this felony case[.]” Gene W. replied, “I am very opinionated, so I can be fair.” Counsel pointed out that “if you’re very opinionated, sometimes you can’t be fair.” The following exchange then took place:
“[Gene W.]: Sometimes I will go to the grocery store and I come up with --
“[Counsel]: You are going to be presented the facts, and you have an opinion. You listen to the facts. You simply follow your opinion. Is that what you’re indicating?
“[Gene W.]: Okay. Maybe I am not too --
“[Counsel]: Okay. Why do you think you can be fair and impartial in this case?
“[Gene W.]: If I just listen to both sides.”
Gene W. further stated that he thought, “fair and impartial” meant, “Fair, do not have a bias opinion against.”
b. Voir dire of G.H.
G.H. was a speech therapist for the San Bernardino County schools, and she also had a private practice. She had served on four prior juries. Her former husband was in the military, and her sister-in-law worked for the Federal Bureau of Investigation and was assigned to the White House. She had a master’s degree in speech pathology.
G.H. revealed she had a nephew in jail in Phoenix, Arizona, on a murder charge. Her house had been broken into, and her niece had been killed by the niece’s husband in a murder-suicide. When asked if her experiences made her “more sympathetic to one side or the other,” she replied that it would depend on the case. She agreed that she could keep in mind the presumption of innocence until the contrary was proved.
When questioned by counsel for Booker, G.H. stated she had watched the court proceedings and followed the cases of her family members. She had also been an “expert witness” and support person for one of her students in a molestation case and had sat with the student while the student testified. She confirmed her understanding of the presumption of innocence.
G.H. stated that her nephew had been in jail for three years awaiting trial, and the system was not treating him well because his right to speedy trial had been violated. She stated that she was “pretty bitter” about the judicial system in Phoenix. She further stated she did not know anything about the judicial system in Victorville, although she “hope[d] that it wouldn’t be the same.”
She was “not sure” how the facts that (1) her nephew was in jail, (2) her home had been burglarized, and (3) her niece was a murder victim would affect the way she viewed the case. She stated she would bring her prior experiences in and could probably be prejudiced one way or another. She stated she did not tend to be a “go-along-to-get-along” person and would be more likely to stand her ground and fight.
c. Wheeler motion
The prosecutor used his third peremptory challenge to excuse Gene W. and his fifth peremptory challenge to excuse G.H. Johnson’s counsel, joined by Booker’s counsel, brought a Wheeler motion based on the prosecutor’s excusals of G.H. and Gene W. Counsel agreed that only two African-American persons had been in the original voir dire, and both had been excused.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 165.
The trial court stated that a prima facie case had not been made because, “Honestly, having heard the voir dire, I don’t even think that there is a reasonable inference.” The trial court nonetheless requested the prosecutor to state his reasons for excusing G.H. and Gene W.
In explaining his reasons for excusing Gene H., the prosecutor stated that Gene H. “stands up. He’s so outspoken. He considered himself very opinionated. He said he was a war protester. He basically indicated to me, through his answers, that he was going to be [a] very opinionated person who was likely to hang up the jury.”
In explaining his excusal of G.H., the prosecutor stated, “I was going to take her until she started telling me about her negative feelings toward the judicial system pursuant to her nephew who was in jail for murder in Phoenix, Arizona. She said that she has, in her words, bitterness or she feels bitter about it. I was concerned she could take that negative attitude about the courts and apply it to this case.”
The trial court found the prosecutor’s reasons for excluding Gene W. and G.H. were nonracial. The trial court stated, “I can’t possibly see how anyone would disagree with [the prosecutor] when he says that he has a non-racial basis for excusing those jurors. Their answers to questions were clear.” The court continued, “Mr. [W.] was someone who seemed like he was very rebellious to authority . . . generally, a feeling I had about him, nothing to do with his color. And I think that [the prosecutor] correctly excused [G.H.] in light of her feeling that there’s bitterness and unfairness, and she was asked by [the prosecutor] whether or not that’s something that she also felt was true in California. She was very ambiguous about it, but you could tell that she was bothered by the way the system had treated her . . . nephew. Again, I would have excused her without any question of her . . . race if I were in [the prosecutor’s] position.”
The trial court reiterated its finding that defendants had not made a prima facie showing and further found that the prosecutor’s reasons for excusing those jurors were credible and supported by the record.
2. Analysis
“[T]he use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal constitutions.” (People v. Turner (1994) 8 Cal.4th 137, 164, abrogated on other grounds by People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5, citing Wheeler, supra, 22 Cal.3d at pp. 276-277, and Batson v. Kentucky (1986) 476 U.S. 79; U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16.) In People v. Ledesma (2006) 39 Cal.4th 641, the court stated, “The United States Supreme Court recently reiterated the applicable legal standards. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.”’ [Citation.]” (Id. at p. 677.)
Johnson contends the trial court erred in failing to find a prima facie case under the standard in Johnson v. California, supra, 545 U.S. 162, which requires only an inference that discrimination has occurred. However, the trial court nonetheless proceeded to the second step of the analysis in Johnson v. California, and requested the prosecutor to state his reasons for exercising his peremptory challenges. The court in Wheeler, supra, 22 Cal.3d at pages 281-282, explained the prosecutor’s burden to show that peremptory challenges were not based on group bias: “The showing need not rise to the level of a challenge for cause. . . . [T]he allegedly offending party must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses -- i.e., for reasons of specific bias as defined herein. He, too, may support his showing by reference to the totality of the circumstances: for example, it will be relevant if he can demonstrate that in the course of this same voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds.”
Another court has stated, “To the extent that a trial court’s ruling on the proffered explanation of a prosecutor turns on the latter’s credibility, a reviewing court should ordinarily give those findings great deference. [Citation.] However, ‘in some cases the reviewing court may conclude that the explanation is inherently implausible in light of the whole record. And even when there is no doubt of the prosecutor’s good faith, the issue whether a given explanation constitutes a constitutionally permissible -- i.e., nondiscriminatory -- justification for the particular peremptory challenge remains a question of law.’ [Citation.]” (People v. Gonzalez (1989) 211 Cal.App.3d 1186, 1192-1193.) The trial court’s determination based on its own recollection of the voir dire is given great deference. (People v. Ward (2005) 36 Cal.4th 186, 200.)
Here, the record supports the trial court’s determination that the prosecutor’s reasons for excusing Gene W. and G.H. were race neutral. With respect to G.H., courts have frequently recognized that the fact that a prospective juror has family members who have been involved with the criminal justice system and that the prospective juror has expressed negative feelings about that experience is a valid basis for exercising a peremptory challenge. (See, e.g., People v. Walker (1988) 47 Cal.3d 605, 625-626.)
Moreover, with respect to the prosecutor’s reasons for excusing Gene W., courts have frequently held that peremptory challenges were exercised on race-neutral grounds when the prosecutor’s explanation for the challenge was merely the prospective juror’s body language. (See, e.g., People v. Phillips (2007) 147 Cal.App.4th 810, 819; Wheeler, supra, 22 Cal.3d at page 276; People v. Turner, supra, 8 Cal.4th at p. 170.) And in People v. Ledesma, supra, 39 Cal.4th at p. 679, the court acknowledged the validity of a “strategic decision” to excuse a juror who appeared to be too strong willed.
We therefore find no error in the trial court’s ruling on the Wheeler motion.
B. Aiding and Abetting Instruction
Booker contends the trial court erred in its instructions to the jury on aiding and abetting for purposes of robbery. He argues the instructions could have permitted the jury to find him guilty as an aider and abettor even if his participation in the crime did not commence until the escape phase.
1. Forfeiture
The People argue that because Booker did not request a clarifying instruction in the trial court, any error in the failure to give such an instruction has been forfeited. However, instructional error may be reviewed on appeal, even in the absence of an objection in the trial court, when the substantial rights of the defendant were affected. (§ 1259; People v. Prieto (2003) 30 Cal.4th 226, 247 (Prieto).) We will therefore address the issue on the merits.
2. Analysis
In criminal cases, even in the absence of a request, the trial court must instruct the jury on general principles of law relevant to the issues raised by the evidence. (People v. Blair (2005) 36 Cal.4th 686, 744-745.) The general principles of law raised by the evidence are those principles closely and openly connected with the facts before the court and that are necessary for the jury’s understanding of the case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) For purposes of aider-abettor liability, the commission of the robbery continues until the property has been carried away to a place of temporary safety. (People v. Harris (1994) 9 Cal.4th 407, 421.) Whether the defendant has reached a place of temporary safety is determined by an objective standard – the “issue to be resolved is whether a robber had actually reached a place of temporary safety, not whether the defendant thought that he or she had reached such a location.” (People v. Johnson (1992) 5 Cal.App.4th 552, 560.)
However, the commission of a robbery does not continue through the escape for purposes of aiding and abetting liability. (People v. Cooper (1991) 53 Cal.3d 1158, 1170 (Cooper).) In Cooper, the defendant drove his two codefendants to the parking lot of a shopping center. All three got out and had a conversation, and a few minutes later, the codefendants ran across the parking lot and slammed into an elderly man and stole his wallet. The codefendants fled with the loot to the defendant’s car, which was moving with the two right-side doors open. After the codefendants got into the car, the defendant drove away quickly. (Id. at p. 1161.)
The defendant was charged with robbery on the theory that he had aided and abetted the codefendants by driving the getaway car. The trial court instructed the jury that a robbery was still in progress while the perpetrator was in possession of the stolen property and was fleeing in an attempt to escape, and the robbery is not complete until the perpetrator was in unchallenged possession of the stolen property after having effected an escape with the property. The jury found the defendant guilty of robbery. (Cooper, supra, 53 Cal.3d at pp. 1161-1162.)
On appeal, the Supreme Court held that the trial court had erred in its instructions to the jury. The court held that for aider and abettor liability, a robbery is complete once the perpetrator has carried away the stolen property to a place of temporary safety. The court stated, “As our cases recognize, the prosecution must show an aider and abettor intended to facilitate or encourage the principal offense prior to or during its commission. The main issue here, therefore, is the duration of the commission of a robbery for purposes of determining whether a getaway driver is liable as an aider and abettor rather than an accessory. [¶] We conclude that the commission of a robbery for purposes of determining aider and abettor liability continues until all acts constituting the robbery have ceased. The asportation, the final element of the offense of robbery, continues so long as the stolen property is being carried away to a place of temporary safety. Accordingly, in order to be held liable as an aider and abettor, the requisite intent to aid and abet must be formed before or during such carrying away of the loot to a place of temporary safety. Therefore, a getaway driver who has no prior knowledge of a robbery, but who forms the intent to aid in carrying away the loot during such asportation, may properly be found liable as an aider and abettor of the robbery.” (Cooper, supra, 53 Cal.3d at pp. 1160-1161, original italics omitted, italics added.)
Here, the trial court instructed the jury on aider and abettor liability with CALCRIM No. 1603, as follows: “To be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety. [¶] A perpetrator has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued and has . . . unchallenged possession of the property.”
Although the case was not cited by Johnson or the People, Prieto, supra, 30 Cal.4th 226, appears to be squarely on point. In that case, the Supreme Court found error in an instruction substantially similar to that given in this case. The instruction stated: “‘A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in possession of the stolen property and fleeing in an attempt to escape. [¶] A robbery is complete when the perpetrator has eluded any pursuers, has reached a place of temporary safety, and is in unchallenged possession of the stolen property after having effected an escape with such property.’” (Id. at pp. 252-253.) The court stated that the instruction was erroneous “‘because it could have misled the jury into believing that commission of a robbery continues during the escape to a place of temporary safety even if the loot is not being carried away contemporaneously.’” (Id. at p. 253, quoting Cooper, supra, 53 Cal.3d at p. 1170.)
The Prieto court nonetheless found the error harmless, even if it affected an element of the offense. The defendant and his two confederates had robbed or attempted to rob three victims and then had driven off together with the victims’ property. The court stated that even though one of the confederates had left the car, possibly with some of the loot, “the initial ‘act of carrying away the loot to a place of temporary safety did in fact coincide with the escape.’ [Citation.] On these facts, the jury undoubtedly found that defendant formed the intent to facilitate or encourage the commission of the robberies ‘prior to or during the act of carrying away the loot to a place of temporary safety.’ [Citation.] Accordingly, the instructional error does not warrant the reversal of any of defendant’s convictions.” (Prieto, supra, 30 Cal.4th at p. 253.)
Here, Booker claims the error was not harmless because the jury could have found that Johnson had already reached a place of temporary safety by the time Booker aided and abetted his escape by driving Johnson from the area. In other words, Booker claims the jury could have found he did not aid and abet Johnson until after Johnson had reached Booker’s car, and this was a place of temporary safety.
Even if we assume, for purposes of argument only, that Booker’s car was a place of temporary safety, the evidence does not support his argument. Uncontradicted evidence established that Chhina saw Johnson fleeing with a second man immediately after Johnson took her bags. Deputy Lansdown saw Booker carrying a gun while running through the parking lot with Johnson, who was carrying Chhina’s purse and bags. Booker stopped momentarily and aimed the gun at a car on the street. Booker and Johnson ran together through an apartment complex before they reached Booker’s car. Without question, Johnson had not reached a place of temporary safety during those events, and the above evidence clearly established that Booker was aiding and abetting Johnson before they reached the car -- no reasonable jury could have concluded otherwise. The instructional error was therefore harmless beyond a reasonable doubt.
C. Johnson’s Sentence
1. Oral Pronouncement of Judgment
Johnson contends the trial court erred in its oral pronouncement of judgment. Specifically, Johnson contends the trial court erroneously stated that his sentence for the robbery was 35 years to life, when it should have been 25 years to life. Johnson argues the trial court double counted the firearm-use enhancement under section 12022.53, subdivision (b), by imposing it separately in paragraphs 2 and 4E of the abstract of judgment.
The trial court followed the recommendation of the probation officer that Johnson be sentenced for the robbery count under section 667, subdivision (e)(2)(A)(iii). The probation officer recommended a sentence of 35 years to life for the robbery charged in count 1, plus a consecutive 30 years for the enhancements. At the sentencing hearing, Johnson’s counsel stated, with respect to the probation report, that “[f]rom a factual point of view for Mr. Johnson, it appears accurate as to the actual sentencing of 35 years to life plus 30 years consecutive.”
The trial court imposed sentence as follows: “As to Mr. Johnson, I’m going to order, having denied the motion to strike a prior, I am therefore bound to sentence under the three-strike law, which I must say I feel is totally appropriate in your case. As well, I’m going to order Rudolph June Johnson, you are sentenced to the California State Prison as follows: Count 1, robbery in the second degree [i]n violation of Penal Code Section 211 per 667 sub paragraph (2), sub paragraph (a) in parens (3)(i)[], sentencing you to 35 years to life[.] [C]onsecutive to the above, use of a firearm pursuant to Penal Code Section 12022.53(b)[,] [s]entencing you to 10 years[.] [C]ausing great bodily injury, I’m sentencing you to 3 years. Three, prior 5-year prison priors, pursuant to Penal Code Section 334(a)(1)[], 15 years to life, two prior 1-year prison terms pursuant to 667(b) for 2 years. Total is 30 years plus 35 years to life.”
Apparently, the intended citation was to section 667, subd. (e)(2)(A)(iii).
Apparently, the intended citation was to section 667, subd. (a)(1).
An additional hearing took place at which the trial court corrected what it characterized as a “scrivener’s error” in sentencing Johnson, specifically, that the clerk had “no record of the Court sentencing the defendant on the 12022.5(a) allegation in Counts 1 and 2 [the robbery and assault with a deadly weapon counts].” The court imposed the middle term of four years for each allegation but stayed those terms under section 654.
Section 667, subdivision (e)(2)(A)(iii), provides, “(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: [¶] . . . .[¶] (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] . . . .[¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.)” (Italics added.)
Thus, for purposes of section 667, subdivision (e)(2)(A)(iii), the “enhancement[s] applicable under Chapter 4.5” included the great bodily injury enhancement (§ 12022.7), the personal firearm use enhancement (§ 12022.53, subd. (b)), the two prior prison term enhancements (§ 667.5, subd. (b)), and the three prior serious felony enhancements (§ 667, subd (a)(1)). (See § 1170.11.) Adding those enhancements to the five-year term applicable to a robbery conviction, the trial court properly sentenced Johnson to 35 years to life for count 1 in addition to the consecutive 30 years of enhancements.
In making his claim that the firearm use enhancement was “double counted,” Johnson ignores the language of section 667, subd. (e)(2)(A)(iii) under which he was sentenced, as well as case law interpreting that statute. In People v. Dotson (1997) 16 Cal.4th 547, 553, the court held that prior serious felony enhancements under section 667, subdivision (a) must be imposed consecutively to the base term under the “Three Strikes” law, even if those enhancements had been used under section 667, subdivision (e)(2)(A)(iii) to determine the base “Three Strikes” term. (See also People v. Coker (2004) 120 Cal.App.4th 581, 586-587 [holding that in sentencing under section 667, subd. (e)(2)(A)(iii), the trial court properly calculated the base term by adding enhancements under sections 12022.53, subd. (d) and 667, subd. (a), and then separately imposing consecutive enhancements under the same sections].) The trial court did not err in imposing a sentence of 35 years to life for the robbery and a consecutive 30 years for the enhancements.
2. Abstract of Judgment
Johnson contends the abstract of judgment incorrectly states the applicable statutes for his sentence enhancements. We agree that a clerical error in the abstract of judgment should be corrected, although the error does not affect Johnson’s sentence.
Although the abstract of judgment correctly shows the total term for Johnson’s enhancements under sections 667.5, subdivision (b) and 667, subdivision (a)(1) to be seventeen years, the abstract of judgment erroneously reflects that Johnson received five-year enhancements for his two prison priors under section 667.5, subdivision (b) and one-year enhancements for two of his prior serious felonies under section 667, subdivision (a)(1). We will order the abstract of judgment to be amended accordingly.
IV. DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting that Johnson received a one-year term for each of two prison priors under section 667.5, subdivision (b), and a five-year term for each of three serious felony priors under section
667, subdivision (a). The trial court is directed to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
We concur: KING, J., MILLER, J.