Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA063389, John Vernon Meigs, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Allen Luckett appeals from the judgment entered following a jury trial in which he was convicted of two counts of second degree robbery, counts 1 and 2 (Pen. Code, § 211), with the findings as to both counts that he personally used a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (b) and as to count 1, personally and intentionally discharged a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (c). Appellant was additionally convicted of shooting at an occupied motor vehicle, count 3 (Pen. Code, § 246), and of assault with a firearm, count 4 (Pen. Code, § 245, subd. (a)(2)), with the finding that during the commission of this offense he personally used a firearm, a handgun, within the meaning of Penal Code section 12022.5, subdivision (a)(1). Following a court trial, he was found to have suffered six prior convictions of a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 1170.12, subds. (a) through (d) and 667, subds. (b) through (i)), two prior convictions of a serious felony within the meaning of Penal Code section 667, subdivision (a)(1), and to have served seven prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
The Three Strikes priors were: A robbery conviction in case number BA128852 on December 27, 1996; three robbery convictions in case number A920652 on June 3, 1988; an assault with a firearm conviction in the same case and on the same date and an attempted robbery conviction also in the same case and on the same date.
Appellant’s motion to strike prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 was denied and he was sentenced to prison for life with a minimum term of 111 years and four months with the possibility of parole. The sentence consisted of in count 1, life with a minimum term of 25 years, plus an additional 20 years for personally discharging a handgun, plus two enhancements of five years for two prior convictions found true pursuant to Penal Code section 667, subdivision (a)(1), plus three one-year enhancements for prior prison terms found true pursuant to Penal Code section 667.5, subdivision (b)(1). The enhancement for personal use of the handgun was stayed. For count 2, appellant was sentenced to life with a minimum term of 25 years, plus one-third of the 10-year enhancement for personal use of a handgun, or three years and four months. For count 4, appellant was sentenced to life with a minimum term of 25 years and the enhancement for personal use of the firearm was stayed pursuant to Penal Code section 654. Sentence in count 3 was ordered stayed pursuant to Penal Code section 654.
On August 27, 2005, Robert Bethea was a library assistant at the Inglewood Public Library, Crenshaw Branch. At approximately 3:00 p.m., after he helped Gloria Banford carry books to her car, he saw two men walking down the alleyway. Appellant, the older of the two men, approached him and Ms. Banford and demanded their money and jewelry. Appellant “pulled out a nine millimeter and cocked it and put it up to [Mr. Bethea’s] face.” In response to appellant’s request to give him whatever money Mr. Bethea had, Mr. Bethea pulled out approximately $300 from his pocket and gave it to the younger man. Ms. Banford gave appellant approximately $42, two diamond rings and a watch. When the robbers walked away, Mr. Bethea got into the rental car he was driving and drove to a nearby hamburger stand, looking for a policeman. He then saw appellant driving a van and followed the van. At some point, appellant got out of the van, ran back toward Mr. Bethea, and fired the gun four or five times, hitting the vehicle Mr. Bethea was driving. The Sheriff’s Department responded to the scene. Following the robbery, Ms. Banford drove home and called the police.
Nathan Corpening saw the shooting and remembered the license plate of the van driven by the shooter. According to records of the Department of Motor Vehicles, the van was registered to appellant.
Detective John Silverstein responded to the scene of the shooting and observed a bullet hole in Mr. Bethea’s rental car. A Ford pickup truck and a window at a residence also had bullet hole damage.
Approximately one month later, Mr. Bethea identified appellant in a six pack of photographs as the robber who held the gun to his face. At trial, Mr. Bethea also identified appellant. In July 2006, however, Mr. Bethea had been unable to identify anyone during a live lineup. Ms. Banford identified appellant in a photographic lineup, at a live lineup, and at trial as the older man who pointed the gun and robbed her and Mr. Bethea.
Mr. Bethea never recovered the $300 taken from him. He also had to pay approximately $300 to repair the vehicle he had been driving.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On November 30, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.
Upon this court’s independent review of the record, we observed several potential issues relative to appellant’s sentence and requested that the parties address the following:
1. Whether the trial court correctly found true the allegation that appellant had previously been convicted of seven prior convictions and served prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) in that it appears that five of the prison terms were served concurrently.
Actually four of the five were served concurrently.
2. Whether the trial court properly used the same prior felony convictions to enhance appellant’s sentence under Penal Code sections 667, subdivision (a)(1) and 667.5, subdivision (b).
3. Whether appellant can be separately punished for count 4, assault with a firearm on Mr. Bethea, in that the jury found in count 1 that during the commission of the robbery appellant personally and intentionally discharged a firearm.
4. Whether the trial court erred in count 2 by imposing one-third of the 10-year enhancement, rather than the full enhancement, for personal use of a handgun, when the enhancement was attached to an offense that carried an indeterminate term of imprisonment.
After further review of the briefs and the record, we discovered an additional issue relating to appellant’s sentence in count 4 and requested that the parties address the question whether the trial court erred when it stayed sentence for the use of a firearm (Pen. Code, § 12022.5, subd. (a)(1)) on count 4, the assault with a firearm on Robert Bethea.
DISCUSSION
I
Following this court’s inquiry, both parties agree the trial court erred when it found true the allegation that appellant previously had been convicted of seven prior convictions and had served seven prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) in that four of the five prison terms were served concurrently.
Penal Code section 667.5, subdivision (b) provides: “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (b) [W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” (Italics added.) The limitation on this enhancement is repeated in subdivision (e), which provides: “The additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison.” (Italics added.) (Pen. Code, § 667.5, subd. (e).) A prior separate prison term for purposes of this section means “a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.” (Pen. Code, § 667.5, subd. (g).) “Courts have consistently recognized that this statutory language means that only one enhancement is proper where concurrent sentences have been imposed in two or more prior felony cases. (See People v. Ruiz (1996) 44 Cal.App.4th 1653, 1669 [‘“The plain meaning of section 667.5, subdivision (g) is to prevent multiple one-year enhancements under section 667.5 itself where the offender has served one period of prison confinement, or block of time, for multiple offenses or convictions.”’]; [Citations.].)” (People v. Jones (1998) 63 Cal.App.4th 744, 747.) Because five of the prior conviction enhancements pursuant to Penal Code section 667.5, subdivision (b) were for convictions on the same date and case number and appellant received concurrent sentences in four of them, only one of them can be found true.
We note that while the trial court found all five of these enhancements true for a total of seven, it only sentenced appellant pursuant to Penal Code section 667.5, subdivision (b) for one prior conviction arising from case number A920652.
II
In response to the court’s question, both parties agree the trial court erred in using the same prior felony conviction to enhance appellant’s sentence pursuant to Penal Code section 667, subdivision (a)(1) and Penal Code section 667.5, subdivision (b). The court used the robbery conviction from case number BA128852 to impose enhancements under both code sections. As such, the prior prison term enhancement based on the conviction in case number BA128852 must be stricken. (See People v. Jones (1993) 5 Cal.4th 1142, 1150.)
The parties agree that any of the three robberies in case number A920652 can support the prior prison term enhancement while a different robbery conviction from that case can support a prior serious felony enhancement.
III
Following the court’s question, appellant now contends he cannot be separately punished for count 4, assault with a firearm on Mr. Bethea, in that the jury found on count 1 that during the commission of the robbery appellant personally and intentionally discharged a firearm. Respondent, however, observes there was substantial evidence that the two crimes involved different objectives. Respondent argues that while the shooting could be interpreted as an attempt to reach a safe place so as to complete the robbery, it could also be interpreted “as an act, driven by ill-will, to harm a pesky victim who had the audacity to follow the perpetrators.” We agree with respondent. Appellant fired four or five shots while running toward the victim, supporting the conclusion that appellant intended to additionally maliciously injure or kill Mr. Bethea. As such, the trial court’s decision to impose sentence on count 4 was supported by substantial evidence.
IV
In response to the court’s inquiry, the parties agree the trial court erred in count 2 by imposing one-third of the 10-year enhancement for personal use of a handgun. Because the enhancement was attached to an indeterminate term, the gun use enhancement was not subject to the determinate sentencing law, including the provisions of Penal Code section 1170.1 which provide for one-third of the middle term of imprisonment for consecutive terms. (See People v. Felix (2000) 22 Cal.4th 651, 656.)
V
In response to the court’s further inquiry regarding the sentence in count 4 and whether the court erred in staying the sentence for the use of a firearm enhancement, appellant submits that personal use of a firearm is an element of assault with a firearm and sentence on the enhancement was therefore unauthorized. As respondent observes, however, pursuant to statutory language, such an enhancement can properly be attached to a substantive offense of assault with a firearm although the assault offense already implied the use of a firearm. (See Pen. Code, § 12022.5, subd. (d); People v. Ledesma (1997) 16 Cal.4th 90, 92-93.)
Respondent contends the trial court erred when it stayed the firearm enhancement pursuant to Penal Code section 654. Respondent acknowledges an unresolved split in authority among the California Courts of Appeal as to whether Penal Code section 654 applies to enhancements and argues this court should conclude that Penal Code section 654 does not apply to enhancements because enhancements do not define an offense. (See People v. Warinner (1988) 200 Cal.App.3d 1352, 1355.) Respondent also argues that even assuming Penal Code section 654 generally applies to enhancements, the trial court erred in finding that it applied in this case. Respondent argues “any section 12022.53 enhancement, by statutory language, is excluded from consideration when performing a section 654 analysis. . . . (People v. Palacios [(2007)] 41 Cal.4th [720,] 727-728 [in enacting section 12022.53, the ‘Legislature made clear that it intended to create a sentencing scheme unfettered by section 654’].) The trial court here apparently considered the section 12022.53 enhancement on count 1 in applying section 654. It ran afoul of Palacios in doing so.”
Without entering the debate over whether Penal Code section 654 applies to sentencing enhancements, having concluded that substantial evidence supports the finding that appellant harbored separate objectives in committing the crime in count 1 and the crime in count 4, multiple punishment is permissible. (See People v. Britt (2004) 32Cal.4th 944, 951-952; People v. Herrera(1999) 70 Cal.App.4th 1456, 1466.) The sentence must be modified by imposing a full firearm enhancement term.
Since the term for count 4 is an indeterminate term, as discussed above, the enhancement attached to that term is not subject to the one-third midterm rule under Penal Code section 1170.1. (See People v. Felix, supra, 22 Cal.4th 651, 656.)
DISPOSITION
Four of the five true findings of prior prison terms based on case number A920652 within the meaning of Penal Code section 667.5 are stricken. Appellant’s sentence is modified as follows: the one-year enhancement for the prior prison term based on case number BA128852 is stricken; sentence on count 4 is modified by imposing the full term of four years for the firearm enhancement pursuant to Penal Code section 12022.5, subdivision (a)(1) in place of the 16-month stayed term; sentence on count 2 is modified by imposing the full term of 10 years for the firearm enhancement in place of the 3 years and 4 months for a total sentence of life in prison with the possibility of parole with a minimum term of 121 years. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
An unauthorized sentence is subject to correction on appeal. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.)
We concur: EPSTEIN, P. J., MANELLA, J.
The prior serious felonies within the meaning of Penal Code section 667, subdivision (a)(1) were a robbery conviction in case number BA128852 on December 27, 1996, and a robbery conviction in case number A920652 on June 3, 1988.
The seven prior convictions for which prison terms were served within the meaning of Penal Code section 667.5, subdivision (b) were: a June 24, 1991 conviction for obstruction of law enforcement in case number 15793; a December 27, 1996 robbery conviction in case number BA128852; three robbery convictions on June 3, 1988, in case number A920652; one attempted robbery conviction on the same date and in the same case number and a conviction for assault with a deadly weapon also on the same date and in the same case number.