P. v. Sinclair
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Filed 9/9/08 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, B198062 (Los Angeles County Super. Ct. No. PA047174) v. CANESHA SHERRON SINCLAIR, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Schuit, Judge. Affirmed as modified, with directions. 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 *Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of the Facts section and part A of the Discussion. General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent. _______________________________________ PROCEDURAL BACKGROUND On May 20, 2004, an information was filed charging appellant Canesha Sherron Sinclair in counts 1 through 10 with robbery (Pen. Code, § 211) and in count 11 with assault with a firearm (Pen. Code, § 245, subd. (a)(2)).1 The information alleged under each count that the offense had been committed in association with, and for the benefit of, a criminal street gang (§ 186.22, subd. (b)(1)) and that a principal had been armed with a firearm (§ 12022, subd. (a)(1)); in addition, the information alleged under counts 1 through 10 that a principal had personally used a firearm (§ 12022.53, subds. (b), (e)(1)). Appellant pleaded not guilty and denied the allegations. Yuseff Sinclair, who was also charged with the robberies alleged against appellant in counts 9 and 10 and related offenses, was tried with appellant.2 Trial by jury began on February 8, 2007. Prior to the submission of the case to the jury, the information was amended to charge appellant with an additional count (count 12) of assault with a firearm (§ 245, subd. (a)(2)), accompanied by gang and armed principal allegations (§§ 186.22, subd. (b)(1)(A), 12022, subd. (a)(1)). Appellant pleaded not guilty to the new charge. The jury found appellant guilty as 1 All further statutory citations are to the Penal Code unless otherwise indicated. 2 While the jury was deliberating, Yuseff Sinclair entered into a plea agreement that resolved the case against him. He is not a party to this appeal. 2 charged in the information, as amended, and found the special allegations to be true. The trial court imposed an aggregate sentence of 44 years and four months. FACTS A. Prosecution Evidence 1. May 17, 2003 Robberies (Counts 6-8)3 At approximately 9:00 p.m. on May 17, 2003, a man and two women entered a KB Toys store in Alhambra and ordered everyone in the store to lie down on the floor. The man, who was armed with a gun, approached Omar Umanzor, a store employee, and took money from Umanzor s wallet. The man also robbed Jose Luis Hernandez, a customer who was lying near Umanzor. One of the female robbers pointed a handgun at Chrissie Murray, the store s assistant manager, and directed her to open the safe, from which the robbers removed approximately $1,800.4 The robbers also took money from the store s cash registers. At trial, Murray identified appellant as the female robber who had compelled her to open the safe.5 3 Appellant was charged in counts 6 through 8 with the robberies of Jose Luis Hernandez, Omar Umanzor, and Chrissie Pike (§ 211). At trial, Pike testified that following her marriage she employed the surname, Murray. 4 Because Murray was unavailable as a witness at trial, the jury was shown a videotape of her testimony. 5 In addition, following the robbery, Murray was shown a photographic lineup and selected appellant s photo as one of two that possibly depicted the female robber. Of the two photos, Murray felt most strongly that appellant s photo depicted one of the robbers. 3 2. December 15, 2003 Offenses (Counts 9-12)6 During the evening of December 15, 2003, Adrian Vejar worked as the assistant manager in a KB Toys store in Sunland. Also present in the store were two sales associates, Sandra Gallegos and Ricardo Reyes. Outside the store, Justin Will, who intended to shop at the store, drove his car into the store s parking lot and noticed two men and a woman near the store. At approximately 9:30 p.m., a man and a woman entered the store wearing black ski masks and ski outfits, while a second man stood at the store s door. As the man walked into the store, his mask was pulled up above his eyebrows, revealing his face. Gallegos also saw a portion of the woman s face as she pulled down her mask, which contained large openings for her eyes. The man inside the store said, This is a holdup, displayed a gun, and directed Vejar and Reyes to the rear of the store, where he ordered Vejar to open the safe. The woman, who also had a gun, forced Gallegos into the rear of the store. The robbers ordered Gallegos and Reyes to lie face down. After Vejar opened the safe, the robbers removed money from it. As April Pope entered the store to return a purchase, she noticed a masked man standing near the door. The man followed her into the store, and forced her to lie on the floor. A man and woman emerged from the rear of the store and took items from the shelves; the robbers then fled. Will walked into the store, and saw the three persons he had noticed earlier outside the store run from the store. Following the robbery, Vejar and Gallegos identified appellant as the female robber in photographic lineups; in addition, Vejar and Reyes identified Yuseff Sinclair as the armed male robber in photographic lineups. When shown a 6 Appellant was charged in counts 9 and 10 with the robberies of Adrian Vejar and Sandra Gallegos (§ 211), and in counts 11 and 12 with assaults with a firearm on Ricardo Reyes and April Pope (§ 245, subd. (a)(2)). 4 photographic lineup, Will identified appellant as resembling the woman he had seen running out of the store. At trial, Vejar and Gallegos identified appellant as the female robber.7 3. March 3, 2004 Robberies (Counts 1-5)8 At approximately 7:00 p.m. on March 3, 2004, Manuel Peraza, Rachel Peraza, Juan Perez, Armando Oliveros, and Arturo De Armas, were working in a Pacific Wireless store in San Fernando. No customers were in the store. Four persons wearing black hooded jackets -- two of whom were armed with handguns -- entered the store and ordered everyone to lie down on the floor. They stole money and valuables from the people in the store, including Manual Peraza s wallet, watch, and wedding ring, Oliveros s cash and wedding ring, and Perez s cash; they also took money, phones, and other items from the store. Maricela Torres and Krystal Garcia were seated in a car at a nearby drivethrough restaurant when they saw several people running from the Pacific Wireless store. One of the people -- a woman -- fell while trying to scale a low wall. The woman gathered up cell phones, boxes, and other items she had dropped, and left in a car occupied by her companions. Torres noted the car s license plate number and later gave it to investigating officers. The plate number belonged to a rental car. On March 5, 2004, Los Angeles Police Department (LAPD) officer Jason Azpeitia stopped appellant, who was driving a rental car bearing the license plate 7 Vejar testified that he recognized appellant as the female robber, despite the robber s mask, due to appellant s distinctive eyes. 8 Appellant was charged in counts 1 through 5 with the robberies of Manuel Peraza, Rachel Peraza, Armando Oliveros, Juan Perez, and Arturo De Armas. 5 number noted by Maricela Torres. Inside the car was a cell phone stolen from Pacific Wireless. After appellant s arrest, a police officer discovered Manuel Peraza s and Armando Oliveros s wedding rings hidden in her shoe. At trial, Manuel Peraza and Armando Oliveros identified appellant as one of the robbers, and Maricela Torres and Krystal Garcia identified appellant as the woman who fell outside the Pacific Wireless store.9 4. Gang Experts Testimony LAPD Detective Chris Luna and LAPD officer Andre Rainey, who are gang experts, testified that appellant and Yuseff Sinclair belonged to the Black P. Stone gang; in addition, Luna opined that the three groups of robberies charged against appellant had been committed for the benefit of a criminal street gang, namely, the Black P. Stone gang. (§ 186.22, subd (b)(1)). Robert Murray, a gang expert who worked as a LAPD officer until 2003, identified Yuseff Sinclair as a member of the Black P. Stone gang, which Murray described as one of the few gangs that rely on take-over robberies as a key source of income. B. Defense Evidence Steven Strong, a private investigator, testified that he acquired expertise regarding gangs when he was employed as an officer for LAPD. According to Strong, the Black P. Stone gang is a male gang. He opined that the offenses charged against appellant were not conducted for the benefit of the gang because robberies are generally committed for personal gain, the robberies occurred outside the gang s turf, and no gang symbols were invoked during robberies.10 9 Maricela Torres also identified appellant in a photographic lineup. 10 In addition to Strong, Yuseff Sinclair s mother and step-father, Larstene Giddens 6 DISCUSSION Appellant contends that (1) there is insufficient evidence to support the findings regarding the gang enhancements on counts 1 through 8, and (2) there was sentencing error. A. Gang Enhancements Appellant contends the gang enhancement findings on counts 1 through 8 fail for want of substantial evidence.11 Section 186.22, subdivision (b)(1), provides a sentence enhancement for a defendant 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 . . . . Appellant does not challenge the gang enhancement findings regarding the robberies alleged in counts 9 and 10, with which Yuseff Sinclair was also charged. She argues that aside from the evidence establishing her membership in the Black P. Stone gang, there is no evidence of gang participation or involvement in the remaining robberies, which occurred outside the neighborhoods and Hondo Houston, testified that Yuseff Sinclair suffered a gunshot wound on December 12, 2003, and that his arm was in a sling for a week after that date. 11 The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness s credibility for that of the fact finder. [Citations.] [Citation.] (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) 7 claimed by the Black P. Stone gang. For the reasons explained below, we conclude otherwise. Generally, expert testimony is admissible to assist in establishing intent or motive regarding a gang-related crime, as well as whether the crime was performed for the benefit of a gang. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) Here, experts provided the bulk of the evidence regarding the gang enhancements. LAPD Detective Chris Luna, a gang expert, testified that the Black P. Stone gang claims two neighborhoods in central Los Angeles, and has more than 800 members. Members identify themselves by displaying the color red and distinctive hand signs; moreover, they engage in a variety of crimes, including narcotic sales, burglaries, robberies, witness intimidation, and murder. Luna opined that appellant and Yuseff Sinclair were members of the Black P. Stone gang. Luna also identified members of the Black P. Stone other than appellant and Yuseff Sinclair who had been convicted in two separate cases of murder. Luna opined that the three sets of robberies charged against appellant had been committed for the benefit of the Black P. Stone gang. According to Luna, robberies fund the gang s activities, including the acquisition of drugs; provide senior members with money in the form of taxes from participants in the robberies; create fear of the gang; and elevate the participants status within the gang. In addition, the theft of cell phones benefits the gang, as stolen phones can be used by members or sold for money. Luna also testified that gang members frequently use rental cars in committing offenses because rental cars cannot be easily traced to particular owners or users; moreover, they often commit crimes in groups to ensure that their activities will be known to the gang. Robert Murray, a gang expert who formerly worked as an LAPD officer, stated that he had had many contacts with Yuseff Sinclair, but limited personal contact with appellant. Murray opined that Yuseff Sinclair was a member of the 8 Black P. Stone gang; in addition, he testified that he had seen appellant, dressed in red, with a member of the Black P. Stone gang. According to Murray, the Black P. Stone gang is among the few gangs that do take-over robberies of businesses, banks, armored cars as one of their main sources of income. LAPD officer Andre Rainey, who worked with Murray on the gang enforcement detail until 2003, opined that both appellant and Yuseff Sinclair belonged to the gang. After viewing a surveillance camera video recording of the May 17, 2003 robberies, both Murray and Rainey believed that Yuseff Sinclair was a possible participant. Here, there is sufficient evidence to support the gang enhancement findings regarding the robberies at the KB Toys store on December 15, 2003 (counts 9 and 10), which -- like the other robberies -- occurred outside the neighborhoods claimed by the Black P. Stone gang. In People v. Martinez (2008) 158 Cal.App.4th 1324, 1329-1330, the defendant, assisted by another gang member and an unidentified third person, attacked and robbed an individual in an alley located outside the gang s territory. The appellate court concluded that there was substantial evidence to support the gang enhancement as to the defendant s conviction for robbery, in view of the other gang member s participation in the crime, and a gang expert s testimony that the crime had benefited the gang. (Id. at pp. 1331-1334.) Under Martinez, the evidence that appellant and Yuseff Sinclair belonged to the Black P. Stone gang, coupled with the expert testimony regarding the manner in which the robberies benefited the gang, adequately supports the pertinent findings, even though the robberies occurred outside the gang s turf. Appellant does not dispute this conclusion. The jury was entitled to examine the evidence regarding the remaining 9 robberies in light of December 15, 2003 robberies.12 The perpetrators of the three sets of robberies employed essentially the same modus operandi: appellant and two or three other robbers targeted similar stores, waited until the end of the business day, seized control of each store through a display of guns, removed cash from the registers and safe, and stole money and valuable items from each store and its occupants. According to Murray, such take-over robberies are characteristic of the Black P. Stone gang. Other evidence also linked the robberies on May 17, 2003 and March 3, 2004 to the gang. The trial court admitted photographs derived from the surveillance camera video recording of the May 17, 2003 robberies, which Murray and Rainey believed depicted Yuseff Sinclair as a participant. Regarding the March 4, 2004 robberies, Luna testified that gangs often use rental cars in their criminal activity. The jury was thus entitled to infer that the May 17, 2003 and March 3, 2004 robberies, like the December 15, 2003 robberies, were committed for the benefit of the gang, and that appellant acted with the specific intent to promote . . . criminal conduct by gang members in all three sets of robberies (§186.22, subd. (b)(1)). Appellant s reliance on People v. Morales (2003) 112 Cal.App.4th 1176 (Morales) and People v. Ferraez (2003) 112 Cal.App.4th 925 is misplaced. In both cases, the appellate courts held that gang expert testimony, together with other evidence admitted at trial, provided sufficient support for gang enhancements. 12 Under subdivision (b) of Evidence Code section 1101, evidence of a crime is admissible when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act. Here, the prosecutor urged the jury in closing argument to consider the similarities in the modus operandi displayed in the three sets of robberies. On appeal, appellant does not suggest that such argument was improper. 10 (Morales, supra, 112 Cal.App.4th at pp. 1197-1198; People v. Ferraez, supra, 112 Cal.App.4th at pp. 929-931.) We reach the same conclusion here.13 Appellant suggests that the gang enhancement findings are infirm absent a showing that she or the other robbers used or displayed gang symbols in the course of the robberies. We disagree. The fact that an offense was committed with the intent to benefit a gang may be adequately established by expert testimony and other evidence despite the perpetrator s failure to invoke any gang affiliation during the crime. (See People v. Gonzalez, supra, 126 Cal.App.4th at pp. 15491551 [gang expert s testimony is admissible to establish gang member s motive for sudden, silent, and unprovoked attack on fellow jail inmate].) That is the case here. In sum, there is sufficient evidence to support the gang enhancement findings. B. Sentencing Error Appellant contends the trial court erred in imposing sentence. The trial court sentenced appellant to a term of imprisonment totaling 44 years and four months. Regarding count 1, the trial court struck the firearm use enhancement (§ 12022.53, subds. (b), (e)(1)), and imposed a sentence of three years, plus a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), and a one-year armed principal enhancement (§ 12022, subd. (a)(1)). Regarding counts 2 through 10, the trial court struck the gang enhancements (§ 186.22, subd. (b)(1)(C)) and the armed principal enhancements (§ 12022, subd. (a)(1)). On each of counts 2 through 8, the 13 Appellant places special emphasis on the Morales court s remark that it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. (Morales, supra, 112 Cal.App.4th at p. 1198.) In our view, the record establishes that appellant was engaged in no such frolic and detour when she committed the robberies charged against her. 11 trial court imposed a consecutive sentence of one year, plus three years and four months for the firearm use enhancement (§ 12022.53, subds. (b), (e)(1)); on each of counts 9 and 10, the trial court imposed a concurrent sentence of three years, plus a 10-year firearm use enhancement (§ 12022.53, subds. (b), (e)(1)). Finally, on each of counts 11 and 12, the trial court imposed a concurrent sentence of three years, plus a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), and a one-year armed principal enhancement (§ 12022, subd. (a)(1)).14 1. Count 1 (Robbery of Manuel Peraza) Appellant contends that the trial court erred in imposing sentence on count 1. She argues that the trial court was obliged to impose a 10-year enhancement for firearm use pursuant to section 12022.53, subdivisions (b)(1) and (e), rather than a 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C), and thus the additional one-year armed principal enhancement pursuant to section 12022, subdivision (a)(1) must be stayed or stricken. For the reasons explained below, we conclude that the trial court was required to impose the 10-year firearm use enhancement, and to impose and stay the one-year armed principal enhancement; in addition, we conclude that the matter must be remanded to the trial court to determine whether to impose and stay the 10-year gang enhancement. We begin by addressing the gun use enhancement. Subdivisions (b)(1) and (e)(1)(A) of section 12022.53 establish a 10-year enhancement for any principal involved in a violation of section 186.22, subdivision (b), as long as some principal 14 In pronouncing sentence on counts 11 and 12, the trial court stated that it was imposing gang enhancements under subdivision (b)(1)(A) of section 186.22, which provides for a maximum enhancement of four years. The parties do not dispute that the trial court intended to the impose the 10-year enhancement authorized by subdivision (b)(1)(C) of section 186.22. 12 in the violation personally used a firearm.15 Subdivision (h) of section 12022.53 provides that the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section. In addition, subdivision (j) of section 12022.53 provides: When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another enhancement provides for a greater penalty or a longer term of imprisonment. The key issue is whether the phrase another enhancement in subdivision (j) of section 12022.53 permitted the trial court to impose the greater punishment authorized by a combination of enhancement provisions -- that is, section 186.22, subdivision (b)(1)(C), and section 12022, subdivision (a)(1) -- in lieu of the 10year firearm use enhancement under section 12022.53, subdivisions (b) and (e)(1). No court has addressed this question. Generally, in construing a statute, we look first to the plain language of the statute, viewed in context. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1125-1127 (Gonzalez).) Here, the phrase another enhancement is singular; moreover, within the surrounding sentence, the term enhancement is tied to individual enhancement provisions. The conclusion that the phrase another enhancement does not encompass combinations of enhancements finds additional support from People v. Shabazz 15 Subdivision (b) of section 12022.53 provides: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. Subdivision (e)(1) of section 12022.53 provides: The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) 13 (2006) 38 Cal.4th 55 (Shabazz). There, our Supreme Court addressed former subdivision (j) of section 12022.53, which provided: When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment [for that enhancement] pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or a longer term of imprisonment. Shabazz, supra, 38 Cal.4th at pp. 67-70, italics added, italics deleted.) The court concluded that the italicized language meant another enhancement provision, rather than any sentencing provision that provides for a sentence greater than that specified [section] 12022.53. (Shabazz, at pp. 67-70, italics deleted.) The Legislature subsequently amended subdivision (j) to reflect the Supreme Court s interpretation. (Legis. Counsel s Dig., Sen. Bill No. 1661 (2001-2002 Reg. Sess.); see Stats. 2002, ch. 901.) Accordingly, under the circumstances of this case, subdivision (j) of section 12022.53, by its plain language, mandated the imposition of the 10-year gun use enhancement. Regarding the remaining enhancements, our Supreme Court recently explained in Gonzalez that when a section 12022.53 enhancement must be imposed, the trial court is obliged to impose and stay an additional enhancement under section 12022.5. Subdivision (f) of section 12022.53 provides: An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. The court in Gonzalez determined that the term impose, as found in subdivision (f) and other portions of section 12022.53, means impose and then execute, and thus held that when the trial court imposes a section 12022.53 enhancement, it must impose and stay an of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d). 14 additional enhancement under subdivision 12022.5. (Gonzalez, supra, 43 Cal.4th at pp. 1127-1130.) The court reasoned that its construction of subdivision (f) best promoted the legislative purposes underlying section 12022.53, namely, the deterrence and punishment of gun violence. (Gonzalez, at p. 1129.) Under Gonzalez, the trial court was obliged to impose and stay the one-year armed principal enhancement pursuant to section 12022, subdivision (a)(1). In view of Gonzalez, we also conclude that subdivision (e)(2) of section 12022.53 authorized -- but did not oblige -- the trial court to impose and stay the 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C). Subdivision (e)(2) provides that such enhancements shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense. (Italics added.) Because the jury made no finding that appellant personally used a gun in connection with the robbery charged in count 1, we must interpret the language italicized above, with an eye to harmonizing section 12022.53 internally and facilitating legislative intent (Gonzalez, supra, 43 Cal.4th at pp. 1125-1126). As the italicized language is similar to that interpreted in Gonzalez, subdivision (e)(2) of section 12022.53 authorized the trial court to impose and stay the gang enhancement on count 1.16 Our conclusion regarding subdivision (e)(2) of section 12022.53 departs from Gonzalez in one respect due to a difference between the gang enhancement 16 We recognize that in People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282, the court reversed a probation condition imposed under section 186.22, reasoning that subdivision (e)(2) of section 12022.53 bars gang-related punishment in addition to other enhancements established in section 12022.53. Because the court in People v Salas neither confronted nor analyzed the question presented here, its decision does not provide guidance on it. (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [ It is axiomatic that cases are not authority for propositions not considered. ].) 15 and enhancements under sections 12022.5 and 12022, subdivision (a)(1). Subdivision (g) of section 186.22 accords the trial court discretion to strike a gang enhancement where the interests of justice would best be served. 17 No analogous provision in sections 12022.5 or 12022 permits the striking of enhancements under section 12022.5 or 12022, subdivision (a)(1). In view of this difference, we conclude the trial court was obliged to impose and stay the gang enhancement on count 1, unless it exercised its discretion to strike the enhancement under subdivision (g) of section 186.22. Here, the trial court struck the gang enhancement on count 1 solely on the basis of a misapprehension concerning section 12022.53, subdivision (e)(2). Accordingly, the matter must be remanded to the trial court to impose and stay the gang enhancement on count 1, unless the court exercises its discretion to strike the enhancement under section 186.22, subd. (g). (People v. Carmony (2004) 33 Cal.4th 367, 378 [an abuse of discretion occurs when the trial court, in ruling, is unaware of its discretion].) 2. Counts 11 and 12 (Assault with a Firearm on Ricardo Reyes and April Pope) Appellant contends the trial court erred in imposing sentence on counts 11 and 12. She argues that the underlying offense, namely, assault with a deadly weapon (§ 245, subd. (a)(2)), involved personal use of a firearm as an element, and thus the trial court improperly imposed a one-year armed principal enhancement pursuant to section 12022, subdivision (a)(1). In addition, she argues that because 17 Subdivision (g) of section 186.22 provides: Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition. 16 the underlying offense is a serious felony (§ 1192.7, subd. (c)(23)), rather than a violent felony (§ 667.5, subd. (c)), the trial court could properly impose only a five-year gang enhancement pursuant to subdivision (b)(1)(B) of section 186.22. In our view, these contentions are correct. Subdivision (a)(1) of section 12022 authorizes a one-year enhancement for the use of a firearm in the commission of a felony, unless the arming is an element of that offense. Under section 245, subdivision (a)(2), Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years . . . . Accordingly, to establish a conviction under this provision, the prosecution must prove the defendant used a firearm in the commission of the offense. (In re Jose A. (1992) 5 Cal.App.4th 697, 700; see People v. Maldonado (2005) 134 Cal.App.4th 627, 633-635.) As appellant suffered felony convictions under subdivision (a)(2) of section 245, the trial court erred in imposing the one-year enhancements on counts 11 and 12. Respondent agrees. Subdivision (b)(1)(B) of section 186.22 authorizes a five-year enhancement when the underlying offense is a serious felony, as defined in section 1192.7, subdivision (c); in addition, subdivision (b)(1)(C) of section 186.22 authorizes a 10-year enhancement when the underlying offense is a violent felony, as defined in section 667.5, subdivision (c). Subdivision (c)(23) of section 1192.7 includes as a serious felony any felony in which the defendant personally used a dangerous or deadly weapon, and thus encompasses assault with a firearm (see People v. Maldonado, supra, 134 Cal.App.4th at pp. 634-635 [ [I]n the scheme of section 245, assaults with a firearm are treated as an especially dangerous type of assault with a deadly weapon. ]). Because assault with a firearm is not listed as a violent felony in section 667.5, the trial court was required to impose only the five-year gang enhancement on counts 11 and 12. Again, respondent agrees. In sum, the 17 judgment regarding each of counts 11 and 12 must be modified to strike the oneyear armed principal enhancement (§ 12022, subdivision (a)(1)) and 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), and to reflect that a five-year gang enhancement (§ 186.22, subd. (b)(1)(B)) has been imposed. 3. Other Errors In view of our conclusions regarding count 1 (see pt. B.1., ante), the trial court erred in imposing sentence on counts 2 through 10. Regarding these counts, the trial court struck the gang enhancements (§ 186.22, subd. (b)(1)(C)) pursuant to section 12022.53, subdivision (e)(2), and the armed principal enhancements (§ 12022, subd. (a)(1)), pursuant to 12022.53, subdivision (f). For the reasons explained above, the trial court was obliged to impose and stay the armed principal enhancements, rather than strike them, and to impose and stay the gang enhancements, unless it struck the enhancements under section 186.22, subdivision (g). We also note that the abstract of judgment recites no sentence for count 12. The abstract of judgment must be amended to correct this error. 18 DISPOSITION The judgment is reversed with respect to the sentence, and the matter is remanded to the trial court with the following directions: on count 1, to impose a 10-year gun use enhancement (§ 12022.53, subds. (b), (e)(1)), impose and stay a one-year armed principal enhancement (§ 12022, subd. (a)(1)), and impose and stay a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), unless the trial court exercises its discretion to strike the gang enhancement (§ 186.22, subd. (g)); on each of counts 2 through 10, to impose and stay a one-year armed principal enhancement (§ 12022, subd. (a)(1)), and impose and stay a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), unless the trial court exercises its discretion to strike the gang enhancement (§ 186.22, subd. (g)); and on each of counts 11 and 12, to strike the one-year armed principal enhancement (§ 12022, subdivision (a)(1)) and 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), and impose a five-year gang enhancement (§ 186.22, subd. (b)(1)(B)). The judgment is affirmed in all other respects. The trial court is directed to prepare an amended abstract of judgment that reflects these rulings and recites a sentence for count 12 (see pt. B.3., ante), and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. CERTIFIED FOR PARTIAL PUBLICATION MANELLA, J. We concur: EPSTEIN, P. J. WILLHITE, J. 19
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