Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF008712, Rodney L. Walker, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Defendant was charged with assault with a deadly weapon, a knife, or by force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1), first degree residential burglary (§ 459; count 2), and assault with a firearm (§ 245, subd. (a)(2); count 3). It was further alleged that defendant inflicted great bodily injury (GBI) in counts 1 and 2 (§ 12022.7, subd. (a)), that defendant personally used a deadly weapon in count 2 (§ 12022, subd. (b)(1)), and that defendant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)). On the prosecutor’s motion, the court dismissed count 3 and the gang enhancement allegation on count 3 at defendant’s arraignment on the operative amended information.
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty as charged in counts 1 and 2, found the personal use allegation true in count 2, and found the gang enhancement allegations true in counts 1 and 2. The jury also found the GBI enhancement true in count 1, but not true in count 2. The jury returned a finding that defendant personally used a deadly weapon in count 1, although the information did not allege a personal use enhancement in count 1.
Defendant was sentenced to a total term of eight years four months in prison, consisting of the upper term of four years on count 1, plus three years for the GBI enhancement on count 1, plus 16 months (one-third the middle term) on count 2. Additional terms were imposed but stayed on the remaining enhancements, except that no sentence was imposed on the uncharged personal use enhancement on count 1.
In pronouncing sentence, the court said it was either striking or staying sentence on the personal use enhancement on count 2 and the gang enhancements on counts 1 and 2. The clerk’s minute order reflects that the court imposed but stayed the statutory terms on these enhancements, namely, three years for the GBI enhancement on count 2 and two 10-year terms for the gang enhancements on counts 1 and 2.
Defendant appeals. First, defendant claims his aggravated assault and burglary convictions in counts 1 and 2 must be reversed, because the trial court erroneously failed to instruct sua sponte on the elements of an assault, either by giving former CALJIC No. 9.00 or a similar instruction. Second, he claims the failure to define assault prejudiced his claim of self-defense to the aggravated assault and burglary charges. Third, he claims that both gang enhancements must be reversed, because the trial court erroneously allowed expert testimony on the issue of his specific intent, and because insufficient evidence supports the enhancements.
Fourth, defendant argues that the true finding on the personal use enhancement on count 1 must be reversed or stricken, because this enhancement was not alleged in the information. Fifth, he requests that his abstract of judgment be corrected to reflect that no GBI enhancement was found true or imposed on count 2. Lastly, he contends the trial court’s imposition of the upper term on count 1 violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
We agree with defendant that the trial court erred in failing to instruct on assault, but we find the error harmless because the question whether defendant committed an aggravated assault was determined adversely to defendant under other, properly given instructions. Thus, the failure to define assault did not prejudice defendant’s convictions in counts 1 or 2, or his self-defense claim to count 1. We also reject defendant’s claim that the trial court allowed inadmissible evidence on the issue of his specific intent for purposes of the gang enhancements, and we conclude that substantial evidence supports the enhancements.
We agree with defendant that the uncharged personal use enhancement on count 1 must be stricken, and that defendant’s abstract of judgment must be corrected to accurately reflect that no GBI enhancement was found true in count 2. We also agree that the trial court’s imposition of the upper term on count 1 violated Cunningham, and that the error was not harmless beyond a reasonable doubt.
Accordingly, we strike defendant’s personal use enhancement on count 1, remand the matter with direction to correct his abstract of judgment, and further remand the matter for resentencing in light of Cunningham. In all other respects, we affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. Background
In August 2004, Jose Carranza owned a house on Riverside Drive near Rose Street in Lake Elsinore. He rented the house to two brothers, Pablo and Gabriel Hernandez, and their father Pablo Hernandez, Sr. (Pablo Sr.) Gabriel was also known as Tweety.
On the afternoon of August 17, Carranza was in the side yard of the house behind the gate, painting the exterior of the house. Gabriel arrived home from work about 4:00 p.m., and found Juan Reyes, also known as Kilos, in the front of the house. Gabriel and Reyes were talking in front of the house when a gray Honda drove up and parked across the street.
Defendant and two other men, Armando Hernandez and Gerardo Hernandez, got out of the Honda and approached Reyes. A fourth man, Carlos Martinez, stayed in the car. Defendant began arguing with Reyes, and the argument turned into a physical altercation. Gabriel did not know who threw the first punch. Reyes was unarmed. After the fight began, Gabriel saw that defendant had a knife in his hand. Armando also had a knife, and Gerardo had a hammer-like object or pick in his hand.
Several minutes after the fight began, Reyes ran through the side gate and into the side yard. Defendant and Gerardo chased Reyes through the gate. As Gabriel began to follow the men, Armando stood near the gate and told Gabriel that, if he did not want any problems with “EYC,” he should not “mess” with them. Gabriel then went into the house through the front.
In the side yard, Reyes got behind Carranza, held onto his biceps, and asked him for help. Defendant and Gerardo told Carranza that, if he did not move aside, he would “pay for it also.” Carranza saw that defendant had a knife in his hand. Gerardo swung the hammer-like object at Reyes several times. Reyes was telling defendant and Gerardo to “calm down.”
Carranza told defendant and Gerardo he did not want any problems at his house, and to leave the property. In response, defendant and Gerardo said that Reyes had been looking for them. At this point, defendant and Gerardo put their hands to their sides and began to leave. As they were leaving, Reyes told them not to look for him anymore because he would be “prepared” the next time. Defendant then turned around and tried to stab Reyes with the knife. As he did so, the knife passed under Carranza’s raised arm.
Reyes fled toward the kitchen, which was only a few feet from where he had been standing behind Carranza. Defendant and Gerardo followed Reyes. As Reyes opened the screen door to the kitchen, defendant stabbed Reyes with the knife and Gerardo struck Reyes on the back with the pick or hammer-like object. Reyes was only able to get about half of his body inside the kitchen. Defendant and Gerardo reached inside the kitchen, grabbed Reyes’s waist, and pulled him back outside as they continued to strike him.
Pablo, who was inside the kitchen, told defendant and Gerardo he was going to call the police. Pablo and Pablo Sr. picked up a metal pipe to scare the men away, and Pablo Sr. told someone to grab a machete. Pablo, Pablo Sr., and Reyes then chased defendant and Gerardo back to the Honda.
As the men were running toward the Honda, one of them said, “get the gun.” Carlos got out of the car, and Gabriel saw that his hand was wrapped in a towel. Gabriel did not see a gun or anything else in Carlos’s hand, however. Defendant, Gerardo, Armando, and Carlos then drove away in the Honda. As they were leaving, one of them yelled, “don’t fuck with EYC.”
Reyes was bleeding heavily from his wounds. An ambulance was dispatched to the scene and Reyes was transported to the Inland Valley Regional Medical Center for treatment. A metal pipe with blood on it and a machete were recovered from the property, and two butter knives were recovered from the kitchen floor.
Dr. Michael Cross, a general surgeon, treated Reyes for several stab wounds. As measured in length, Reyes had a one-and-one-half-centimeter wound in the back of his rib cage; a three-centimeter wound on his right forearm; a four-centimeter wound on the back of his right hand; and a three-centimeter wound on his right palm. The stab wound on the back of the hand lacerated one of the tendons to the fourth finger. The stab wound to the right forearm penetrated the muscle. The chest stab wound was more superficial, only entering the fatty tissue. The stab wounds were closed with sutures and metal clips. Reyes had to have surgery on the wound on the back of his hand and faced the possible loss of mobility in his finger. Dr. Cross classified Reyes’s injuries as significant, but not life threatening.
B. Defendant’s Police Interview
Deputy Jason Trudeau interviewed defendant. The interview was conducted primarily in Spanish, and was audiotaped and videotaped. After being advised of and waiving his Miranda rights, defendant told Trudeau about a verbal confrontation he had with three Hispanic males near a laundromat in Lake Elsinore. The three Hispanic males were “talking shit” to him. At the time, no one else was with him. He went home to his apartment and told his friends Armando, Gerardo, and Carlos about the incident, and the four of them gathered some weapons and decided to go look for the three men. Defendant had a knife, Gerardo and Carlos each took a hammer, and Armando took a bat.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Defendant and his friends got into defendant’s wife’s gray Honda and drove to the house where they expected to find the men from the laundromat. Defendant was driving. He parked in a dirt lot on Rose Street across from Riverside Drive. From there, they saw Reyes and Gabriel standing outside a house. Defendant and Gerardo got out of the car to speak to Reyes and Gabriel.
Defendant and Reyes began to argue. According to defendant, Reyes threatened to kill defendant and punched him once in the mouth with a closed fist. Defendant then punched Reyes a couple of times in his upper torso. Reyes made a movement toward his beltline with his hand, “like a gun gesture.” At this point, defendant pulled out his knife and stabbed Reyes once in the hand. However, defendant did not see a gun or any other weapon in Reyes’s hands. Defendant then followed Reyes to the backyard, and stabbed Reyes three more times. Defendant became frightened and left with Gerardo when some people came out of the house armed with bats and a knife.
After defendant and his friends left, defendant went to someone’s house where he washed blood off his knife. Defendant later changed his clothes at his own home and discarded the clothing he was wearing during the altercation. Throughout the interview, defendant kept saying “maybe a gun, “maybe a gun,” but reiterated to Trudeau that he never saw Reyes with a gun or any other weapon.
C. Gang Expert Testimony
Detective Robert Kwan had training, experience, and education in criminal street gangs. Kwan explained that a person may become a gang member or increase his status within a gang by committing acts of violence, and that acts of violence also increase the status of the gang in the community. He also explained the significance of respect in the gang culture and that disrespect to the gang will never go unanswered.
The EYC or Elsinore Young Classics is a Lake Elsinore street gang. In August 2004, the EYC had well over 80 members, and claimed the entire city of Lake Elsinore as its territory. The primary activities of EYC were graffiti, drugs sales, car thefts, assaults, and murders. An active EYC member committed a murder in 2001, and another active member committed an attempted murder the same year.
On August 17, 2004, shortly after the incident involving Reyes, Kwan drove to the corner of Quail and Nashland in Lake Elsinore. There he found defendant, Gerardo, Armando, and Carlos congregating with what appeared to be EYC members and associates. Kwan approached the group and began talking with them. No one commented when Kwan mentioned he was there because of an assault that had just occurred on Riverside Drive.
Kwan had never heard of defendant before, and was not aware he was a member or associate of the EYC. Kwan was present when Trudeau later interviewed defendant, and at that time defendant denied he was a member of EYC. Defendant did not have any gang tattoos. However, in Kwan’s experience, EYC members did not associate with people who were not familiar to them.
Kwan later interviewed Armando about the incident involving Reyes. Armando admitted he was an EYC associate, meaning he associated with EYC gang members. According to Armando, three people, whom Armando later identified as defendant, Gerardo, and Carlos, came to his house. They said they were going to assault Tweety and his friends, because Tweety and his friends had hit defendant’s vehicle with a bat. Armando drove to Rose Street with defendant, Gerardo, and Carlos. Armando initially said he did not have a weapon, but he later admitted he had a knife and Gerardo had a hammer.
Kwan also interviewed Carlos. Carlos also admitted he was an EYC associate, and that he went with defendant, Gerardo, and Armando to Rose Street. He stayed near the car after they parked.
Kwan also interviewed Gerardo. Gerardo said that on August 17, he was outside his home after returning from work. He saw defendant being chased by a vehicle driven by Tweety and Tweety’s friends. Gerardo and Carlos gave chase in Gerardo’s car, and confronted Tweety. Words were exchanged, and Tweety left. Gerardo drove back home, then left with defendant and others to fight Tweety. Defendant told Gerardo that Tweety and his friends had threatened to kill defendant. Gerardo, defendant, and the others parked on Rose Street and got out of the car. Gerardo had two hammers in the car, and carried one of them with him when he got out of the car.
Gerardo also told Kwan about an incident that occurred two weeks before August 17. At that time, Tweety confronted Gerardo as Gerardo was walking to a Circle K store near his house. Words were exchanged. Tweety stopped his car and tried to get out, but Gerardo pushed him back into the car and punched him a couple of times in the face. Later that day, Tweety confronted Gerardo again while Gerardo was drinking beer outside someone’s house, and another fight ensued.
Kwan did not know Gabriel and was unaware Gabriel was known as Tweety. Kwan also said he was told that someone named Kilos was involved in the altercations that occurred prior to the altercation at Carranza’s house. Kwan was not asked whether he knew Reyes was also known as Kilos.
In response to a hypothetical question based on the facts and circumstances of the altercation at Carranza’s house, Kwan opined that the altercation, which the prosecutor described as the “assault, assault with a knife, the entering of the home with an attempt to commit an assault,” was committed in association with the EYC, and with the specific intent to promote the gang, instill fear, and intimidate others.
Kwan found it significant that Armando, an EYC associate, told Gabriel not to “mess with” the EYC. Armando’s comment showed that the EYC was being represented in the altercation. The prosecutor also asked Kwan “whether [the] circumstances of this offense was committed with a specific intent to either promote, further, or assist the criminal conduct of EYC.” Kwan responded “[y]es” to this question.
On redirect examination, Kwan clarified that, in his opinion, defendant was acting in association with the EYC when he assaulted Reyes, although defendant was not a member of the EYC. Kwan said the assault on Reyes was in retaliation for the previous assault or attempted assault on defendant.
D. Defense Evidence
Defendant testified on his own behalf. He knew Reyes as Kilos and Gabriel as Tweety. Four days before August 17, 2004, he was at Armando’s godfather’s house when he heard shouting coming from the front of the house. He went to the front and saw Gerardo and Gabriel fighting each other. Reyes and other friends of Gabriel’s were there, telling Gabriel to hit Gerardo and telling defendant not to get involved. Then defendant told Reyes not to get involved, and Reyes became angry at defendant.
After Gerardo gained the upper hand in the fight, defendant told Gerardo to leave Gabriel alone. Reyes, Gabriel, and their friends told defendant and Gerardo that it was “not the end of it” and threatened to “get you one by one,” referring to defendant, Gerardo, and others who were with them. Reyes, Gabriel, and their friends left. Then they returned several minutes later and were yelling for Gerardo to come out of the house and fight.
Four days later, on August 17, 2004, defendant was on his way to the laundromat when Reyes, driving a white car, cut him off. Reyes got out of his car, struck defendant’s bumper with a metal pipe, and told defendant to get out of his car. Defendant was alone, but two other people were with Reyes. Defendant was frightened and drove away. He never made it to the laundromat. Reyes followed defendant to a red light, where he again got out of his car with the pipe. Defendant drove through the red light to get away. Reyes continued to follow defendant. Then defendant’s friends Gerardo and Carlos arrived in a pickup truck and began following Reyes’s car. Reyes passed defendant, and defendant drove home. Gerardo and Carlos continued to follow Reyes.
Thereafter, Gerardo and Carlos showed up a defendant’s house. Defendant told them what had happened—that Reyes hit his car with a metal pipe. Carlos said, “these people want to fuck U.S. one by one,” and asked defendant what he was going to do about it. Defendant said he was going to talk to Reyes to “see what his problem is with me.” On their way “to settle things with” Reyes and Gabriel, defendant, Gerardo, and Carlos picked up Armando. Defendant was carrying a small knife—he always carried a small knife—and his friends had various work tools.
Defendant and his friends drove to Carranza’s house on Riverside Drive. There, they saw Reyes and Gabriel in front of the house. Defendant approached them and asked what their problem was. Reyes responded, “You’re my problem,” and threatened to “beat the shit out of” defendant “[b]ecause of what happened last time.” Reyes removed his shirt and punched defendant. Defendant defended himself by hitting back. The two of them fell to the ground, and continued to hit each other. Defendant did not have his knife out at this time.
After defendant and Reyes got up from the ground, Reyes put his hands “into his pants.” Defendant was afraid Reyes was going to pull out a gun or another weapon, so he cut Reyes’s hand with the knife. Reyes ran away while threatening to kill defendant. Defendant followed Reyes to the back of the house where Reyes hid behind Carranza. When Carranza said he did not want any problems at his house, defendant said Reyes was the one who was looking for trouble.
At this point, defendant put his hands down and began to walk away. Then Reyes yelled to him, “You got lucky this time,” “This won’t be left like this,” and “You and your family will pay for this.” Reyes then came running toward defendant, and defendant kicked him. Reyes fell backward and screamed. Reyes then tried to get into the kitchen, and was “grabbing on to something” in the kitchen while he was still trying to kick defendant. Defendant then noticed that Reyes was trying to grab something that was on the floor. At this point, defendant said he struck Reyes “around his hands,” but did not use his knife.
Defendant denied that he or any of his friends went into the kitchen, and denied that he or any of his friends tried to pull Reyes out of the kitchen. He also said he was not paying attention to what Gerardo was doing, and he did not see Gerardo strike Reyes with any tools. Later, defendant said he cut Reyes with the knife when Reyes was behind Carranza. He said he struck at Reyes with the knife after Reyes was threatening him and his family, and saying, “This won’t be left like this.” He reiterated that he cut Reyes’s hand in the front of the house after he believed Reyes was reaching for a gun in his pants.
When defendant saw that several people were armed with weapons and “coming after” them, he ran back to his car and drove home with his friends. When he got home, he threw the clothing he had been wearing in the trash. He washed off the knife and kept it in his pants.
Defendant lived in an apartment on Nashland and Quail. After defendant arrived home with his friends, he and his friends stayed outside his apartment by the corner. Kwan later came and spoke with the group, but he did not understand what Kwan was saying. He admitted, however, that he elected not to say anything to the police about the altercation at Carranza’s house because he had attacked Reyes. Defendant also admitted he never saw a gun or any other weapon in Reyes’s hands at any time during the altercation at Carranza’s house.
Defendant denied hearing any comments about EYC during the altercation at Carranza’s house. He also denied being a gang member or knowing any of his companions were involved with EYC. He said he did not consider Gerardo, Armando, or Carlos to be his friends, although he had known Armando for seven years and had known Gerardo and Carlos for a year.
Two of defendant’s employers, Vincent Dominguez and Martin Lopes, testified that defendant was a good worker and offered their opinions that defendant was honest and trustworthy. Luciana Campos, an apartment manager, testified that Reyes and Gabriel lived together in an apartment for about five months in 2003. Campos saw them together almost every day.
E. Rebuttal
Trudeau testified that, when he interviewed defendant, defendant did not mention that Reyes assaulted him with a metal pipe on his way to the laundromat. Instead, he said some unidentified males were “talking shit” to him. Defendant also told Trudeau, contrary to his trial testimony, that he and Gerardo pulled Reyes from the house and he stabbed Reyes a total of four times. In his trial testimony, defendant claimed he only stabbed Reyes two times.
Kwan testified defendant’s testimony did not change his opinion that defendant committed the crimes for the benefit of the EYC. He noted that Armando and Carlos were self-admitted associates of the EYC, and, as of August 17, 2004, defendant had known Armando for seven years and had known Gerardo and Carlos for a year.
Regarding defendant’s claim he did not know his companions were EYC members or associates, Kwan explained that, within the gang culture, someone who identified a gang member in open court would be labeled a “snitch” and face severe consequences—especially if that person was incarcerated as defendant had been since August 2004. Kwan also said that defendant’s act of committing the crimes in the presence of known EYC associates, namely, Armando and Carlos, was consistent with defendant trying to become a part of the EYC, and that EYC associates would not allow defendant to commit an assault in their presence unless defendant was associated with the gang. Finally, Kwan reiterated that, in his opinion, defendant committed the crimes with the specific intent to promote the EYC.
III. DISCUSSION
A. The Trial Court’s Erroneous Failure to Define the Elements of Assault for Purposes of Counts 1 and 2 Did Not Prejudice Defendant’s Convictions in Counts 1 or 2
The trial court did not give former CALJIC No. 9.00 (Assault—Defined) or a similar instruction defining assault. Defendant claims this was error, and that it prejudiced his convictions for aggravated assault and burglary in counts 1 and 2. The People agree that the trial court had a duty to instruct on the elements of assault and that its failure to do so was error; however, the People argue that the error was harmless. We agree with the People.
1. The Given Instructions
On the aggravated assault charge in count 1, the trial court gave former CALJIC No. 9.02. This instruction stated that the crime of aggravated assault requires proof that “[a] person was assaulted,” and that “[t]he assault was committed with a deadly weapon or instrument, other than a firearm[,] or by means of force likely to produce [GBI].”
On the burglary charge in count 2, the trial court gave former CALJIC No. 14.50. In pertinent part, CALJIC No. 14.50 stated that the crime of burglary requires proof that, “[a]t the time of the entry, that person had the specific intent to commit felony assault.” (Italics added.) As used in CALJIC No. 14.50, “felony assault” clearly referred to a violation of section 245, subdivision (a)(1) as charged in count 1. CALJIC No. 9.02 told the jury that a violation of section 245, subdivision (a)(1) is “a felony,” and that “[e]very person who commits an assault . . . with a deadly weapon . . . in this case a knife, or by means of force likely to produce great bodily injury is guilty of a violation of [section] 245, subdivision (a)(1) . . . .”
But the trial court did not define “assault” for purposes of counts 1 or 2, either by giving former CALJIC No. 9.00 or any other instruction defining assault. An assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240; People v. Williams (2001) 26 Cal.4th 779, 784.) “An assault has three elements: (1) an attempt to apply force, (2) unlawfully, (3) where the defendant has the ability to do so.” (People v. Rivera (1984) 157 Cal.App.3d 736, 742.)
Former CALJIC No. 9.00 defines the elements of assault. It states that, to prove an assault, the following elements must be proved: “1. A person willfully [and unlawfully] committed an act which by its nature would probably and directly result in the application of physical force on another person; [¶] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and [¶] 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another.”
2. Applicable Law
In cases charging assault or aggravated assault, the trial court has a duty to define assault sua sponte. (People v. Simington (1993) 19 Cal.App.4th 1374, 1380-1381 (Simington); People v. Valenzuela (1985) 175 Cal.App.3d 381, 393, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12.) This is because an assault has a technical meaning not commonly understood by laypersons. (People v. McElheny (1982) 137 Cal.App.3d 396, 403-404, citing People v. Anderson (1966) 64 Cal.2d 633, 639-640 & People v. Kimbrel (1981) 120 Cal.App.3d 869, 872.) And an aggravated assault or section 245 violation “‘is nothing more than an assault where there is used either a deadly weapon or any means of force likely to produce “great” bodily injury.’ [Citation.]” (People v. Smith (1997) 57 Cal.App.4th 1470, 1481.)
Also, when a defendant is charged with burglary based on an entry with intent to commit a felony other than theft, the trial court has a duty to instruct, sua sponte, on all elements of the so-called “target offenses.” (People v. Hughes (2002) 27 Cal.4th 287, 349; People v. Prettyman (1996) 14 Cal.4th 248, 268; People v. Failla (1966) 64 Cal.2d 560, 564.) The target offenses are the offenses the defendant is alleged to have intended to commit when he entered the dwelling. (People v. Failla, supra, at p. 564; People v. Hughes, supra, at pp. 349-350.) Here, the only alleged target offense of the burglary was “felony assault,” and, as noted, CALJIC No. 9.02 defined felony assault as a violation of section 245, subdivision (a)(1).
3. Harmless Error Analysis
Although the parties agree that the trial court erred in failing to define the elements of assault for purposes of CALJIC Nos. 9.02 and 14.50, they disagree whether the error was structural and, if not structural, whether the error prejudiced defendant’s aggravated assault and burglary convictions in counts 1 and 2, respectively. Defendant first claims the error is structural and therefore requires reversal of his aggravated assault and burglary convictions—without a showing of prejudice. He argues that the failure to define assault omitted substantially all of the elements of the aggravated assault charge and the intent element of the burglary charge from the jury’s consideration. Defendant relies on People v. Cummings (1993) 4 Cal.4th 1233, 1312-1315 (Cummings) for the proposition that the failure to instruct on “substantially” all the elements of an offense is reversible per se under the federal Constitution. Alternatively, he claims the error was not harmless beyond a reasonable doubt.
We disagree that erroneous failure to define assault is structural error. In People v. Flood, supra, 18 Cal.4th at pages 475, 490, 502 and 503, the state Supreme Court held that instructional error which has the effect of removing a single element of a crime from the jury’s consideration is generally not a structural defect in the trial mechanism which defines harmless error analysis and renders the conviction reversible per se under the federal Constitution. Nor is there any merit to defendant’s claim that the reversal per se rule applied in Cummings should be applied here, on the grounds that here, as in Cummings, the trial court failed to instruct the jury on not just one but “substantially all” of the elements of aggravated assault, and also failed to define the intent element or alleged target offense of the burglary. (Cummings, supra, 4 Cal.4th at pp. 1312-1315 [failure to instruct on four of the five elements of robbery, or “substantially all” of the elements of robbery, rendered robbery conviction reversible per se under federal Constitution]; People v. Flood, supra, at p. 503, fn. 20 [distinguishing Cummings as involving failure to instruct on not just one, but “substantially all” of the elements of a charged offense].)
In Cummings, the court found it significant that the other given instructions did not require the jury to find “facts necessary to a conclusion that the omitted element[s] [of the robbery] had been proved.” (Cummings, supra, 18 Cal.4th at p. 1315.) Indeed, the failure to instruct on an element of an offense is harmless if “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” (People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165.) Thus, in Simington, supra, 19 Cal.App.4th at page 1381, it was held that the failure to define assault for purposes of the charged offense of assault with a deadly weapon was harmless, because the jury found that the stabbing of the victim by defendant constituted a battery with serious bodily injury. The court reasoned that an assault is an attempt to commit a battery, and since the jury found defendant guilty of the completed crime of battery, it necessarily resolved that he attempted to commit the battery, that is, that he committed an assault.
Here, unlike the jury in Simington, the jury did not find that defendant committed a battery with serious bodily injury. But the questions of fact posed by the omitted instruction defining assault are the same: whether defendant made “an unlawful attempt coupled with the present ability to apply physical force upon the person of another.” (§ 240; former CALJIC No. 9.00.) Broken down into its three elements, the questions were whether defendant (1) unlawfully (2) attempted to apply force upon Reyes, and (3) had the present ability to do so. (People v. Rivera, supra, 157 Cal.App.3d at p. 742.) The jury necessarily resolved these three issues adversely to defendant, based on the instructions on self-defense (former CALJIC Nos. 5.30, 5.31, 5.50, 5.50.1, 5.51, 5.52, 5.53, 5.54 & 5.55), and the jury’s rejection of that defense, coupled with the instructions on GBI in count 1 (former CALJIC No.17.20), the instructions on the personal use enhancement in count 2 (CALJIC No. 17.16), and the jury’s true findings on these enhancements. We explain.
CALJIC No. 17.20 told the jury: “It is alleged in Counts [1] and [2], that in the commission of the charge[d] felonies . . . the defendant personally inflicted great bodily injury on Juan Reyes. [¶] If you find a defendant guilty of either felony crime charged . . . you must determine whether that defendant personally inflicted great bodily injury on Juan Reyes. [¶] ‘Great bodily injury,’ as used in this instruction, means a significant or substantial physical injury. . . . [¶] When a person participates in a group assault or burglary and it is not possible to determine which assailant inflicted a particular injury, he may be found to have personally inflicted great bodily injury upon the victim if 1) the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim; or 2) that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim. . . .”
CALJIC No. 17.16 told the jury: It is alleged in Count [2] that in the commission of the felony charged, the defendant personally used a deadly or dangerous weapon. [¶] If you find the defendant guilty of the crime thus charged or an attempt to commit the crime which is a lesser included felony crime, you must determine whether the defendant personally used a deadly or dangerous weapon in the commission of that crime. [¶] ‘A deadly or dangerous weapon’ means any weapon, instrument or object that is capable of being used to inflict great bodily injury or death, and it can be inferred from the evidence, including the attendant circumstances, namely, the time, or place, destination of the possessor, and any other relevant fact, that the possessor intended on that occasion to use it as a weapon should the circumstances so require. [¶] The term ‘personally used a deadly or dangerous weapon,’ as used in this instruction, means the defendant must have intentionally displayed a weapon in a menacing manner or intentionally struck or hit a human being with it. . . .”
First, the instructions on self-defense effectively and correctly defined an assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240; former CALJIC No. 9.00.) The initial instruction on self-defense, former CALJIC No. 5.30, informed the jury “It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.” (Italics added.)
By referring to “a person who is being assaulted” as a person upon whom “bodily injury is about to be inflicted,” former CALJIC No. 5.30 correctly informed the jury that “a person who is being assaulted” is one who is being threatened with bodily injury. Former CALJIC No. 5.31 reinforced this partial definition of assault, and demonstrated its application in the context of an aggravated assault, by telling the jury “[a]n assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar circumstances would believe that the assault is likely to inflict [GBI] upon him.” (Italics added.)
Former CALJIC No. 5.30 also covered the element of present ability, by referring to the threat of bodily injury as one “which appears to be imminent.” Also, defendant admitted he was armed with a knife when he initially confronted Reyes outside Carranza’s house, and thus did not dispute the issue of his present ability to inflict GBI on Reyes. (See People v. Flood, supra, 18 Cal.4th at pp. 503-507 [failure to instruct on peace officer element of § 2800.3 violation harmless beyond a reasonable doubt, where defendant did not dispute the element].)
The unlawfulness element of assault was also covered by the instructions on self-defense. Former CALJIC No. 5.30 told the jury “[i]t is lawful for a person who is being assaulted” to use reasonable force in self-defense. And the other instructions stated that, “[t]he right of self-defense exists only as long as the real or apparent threatened danger continues to exist. . .”; “[t]he right of self-defense ends when there is no longer any apparent danger of further violence on the part of an assailant. . .”; and “the right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.” (Former CALJIC Nos. 5.52, 5.53 & 5.55.) Based on these instructions, the jury must have understood that an assault is an unlawful or unjustified attempt to commit a violent injury on the person of another with the present ability to do so. (§ 240.)
Furthermore, in rejecting defendant’s claim of self-defense to aggravated assault as charged in count 1, the jury must have concluded that defendant’s use of force against Reyes was unlawful. And, in concluding that defendant inflicted GBI in count 1, the jury must have concluded that defendant not only inflicted, but also attempted to inflict, GBI. (See Simington, supra, 19 Cal.App.4th at p. 1381 [jury’s guilty verdict on crime of battery necessarily resolved that defendant also committed an assault, that is, an attempted battery].) Finally, and as discussed, the issue of defendant’s present ability to inflict serious bodily injury was supported by defendant’s admission that he was armed with a knife.
Thus, it appears beyond a reasonable doubt that the failure to define assault for purposes of count 1 did not affect the jury’s guilty verdict on count 1. (People v. Flood, supra, 18 Cal.4th at p. 504; Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) For the same reasons, the failure to define assault or felony assault for purposes of the burglary charge in count 2 could not have affected the jury’s verdict on count 2.
As discussed, the only alleged target offense of the burglary was “felony assault,” and former CALJIC No. 9.02 informed the jury that a felony assault was a violation of section 245, subdivision (a)(1). Furthermore, by concluding that defendant committed the aggravated assault as charged in count 1, and by finding defendant guilty of burglary as charged in count 2, the jury necessarily concluded that defendant entered the kitchen of Carranza’s house with the intent to commit aggravated assault. It is also significant that the jury found that defendant personally used a deadly weapon, a knife, in the commission of the burglary. By making this finding, the jury necessarily concluded that defendant was armed with a knife when he entered Carranza’s kitchen, and that he intended to either display the knife in a menacing manner or “hit” a human being with it. (Former CALJIC No. 17.16.) An intent to display or use a knife in this manner is synonymous with an intent to commit an aggravated assault.
B. The Failure to Define Assault Did Not Prejudice Defendant’s Self-defense Claim
Defendant separately argues that the trial court’s erroneous failure to define the elements of an assault deprived him of his constitutional right to present a defense, namely, his claim of self-defense, to the aggravated assault and burglary charges. We disagree.
As discussed, the instructions on self-defense as a whole effectively and correctly defined assault for the jury. Thus, contrary to defendant’s claim that the jury “had no way to determine whether [defendant] was assaulted and therefore whether his belief in the need to defend himself was reasonable,” the jury was able to determine whether defendant was being assaulted by Reyes and thus whether he had a reasonable need to defend himself.
C. Kwan Did Not Give Improper Opinion Testimony on Defendant’s Specific Intent Relative to the Gang Enhancement Allegations
Section 186.22, subdivision (b) imposes additional punishment upon “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 . . . .” (Italics added.)
Defendant claims the trial court erroneously allowed Kwan to give an improper expert opinion on the ultimate question of whether he committed the charged crimes with the specific intent of benefiting the EYC. He argues that the improper opinion testimony, which was offered during the prosecution’s case-in-chief and rebuttal case, warrants reversal of the gang enhancements on counts 1 and 2.
1. Relevant Background
In its case-in-chief, the prosecutor posed a hypothetical to Kwan based on the facts of the charged crimes, and asked Kwan whether the crimes described in the hypothetical were committed in association with the EYC. After the trial court overruled defense counsel’s objection that the question called for a legal conclusion and was a fact for the jury to decide, Kwan answered “yes.”
The prosecutor then asked Kwan to explain the basis of his opinion. Kwan said his opinion was based on his “training and experience, [his] past contacts with the parties involved, [and] the fact that they make mention of . . . mess with us, you’re going to be messin’ with EYC.”
Next, the prosecutor asked Kwan, “Assuming the same facts, do you have an opinion as to whether these circumstances of this offense was committed with the specific intent to either promote, further, or assist the criminal conduct of EYC, Elsinore Young Classics?” Defense counsel did not object to this question, and Kwan responded in the affirmative.
Kwan explained that his opinion was based on the use of the EYC name during the altercation, which he said causes “fear and intimidation out on the street” and “lets these guys do their criminal acts without the police being called.” The prosecutor then asked Kwan whether there was any “particular significance” to the evidence that one EYC member, Armando, “stayed back and used the phrase don’t mess with U.S. if you don’t want any trouble with EYC.”
Defense counsel objected on the ground the question was an improper hypothetical, because there was no evidence that Armando was an EYC member, but had only been “depicted as an associate.” The trial court overruled the objection on the ground it was within the reasonable range of the evidence. Kwan then responded that it was significant that the EYC name was used during the altercation, and that Armando, an EYC associate, told Gabriel not to “mess with” the EYC if he did not want any trouble with them.
During rebuttal, the prosecutor asked Kwan whether, after hearing defendant’s testimony, he had changed his opinion that the crimes were committed in association with EYC. Kwan responded that his opinion had not changed, and noted that defendant admitted he had known “a couple of these guys for one year” and had known Armando for seven years.
Next, the prosecutor asked Kwan whether “this assault that was committed by the defendant in conjunction with” Carlos, Armando, and Gerardo was consistent with “someone who is trying to become part of EYC,” Kwan responded, “Yes,” and explained that, by committing the assault in the presence of Armando, a documented EYC member, defendant “would up his name,” because now Armando could say he had seen defendant commit an assault.
The prosecutor then asked Kwan whether, based on his training and experience, it would be likely for EYC associates to allow “somebody like [defendant] to commit an assault in their presence if he was not associated with them.” (Italics added.) Kwan responded, “No.”
Lastly, the prosecutor asked Kwan whether he “still [had] an opinion as to whether this conduct was done with a specific intent to promote EYC conduct.” Kwan responded, “Absolutely.”
2. Applicable Law and Analysis
California courts “have long permitted a qualified expert to testify about criminal street gangs when the testimony is relevant to the case.” (People v. Gonzalez (2006) 38 Cal.4th 932, 944.) Specifically, “where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’” (People v. Valdez (1997) 58 Cal.App.4th 494, 506, citing People v. Gardeley (1996) 14 Cal.4th 605, 617.)
Relying primarily on People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658 (Killebrew), defendant argues that the trial court erroneously allowed Kwan to give an improper expert opinion that he committed the charged crimes with the specific intent of benefiting the EYC. A trial court has wide discretion to admit or deny expert testimony, and an appellate court may not interfere with the exercise of that discretion unless it is clearly abused. (People v. Valdez, supra, 58 Cal.App.4th at p. 506.) As we explain, the trial court did not abuse its discretion in this case.
In Killebrew, the Fifth District Court of Appeal held that the People’s gang expert exceeded the scope of permissible expert testimony by testifying, in response to hypothetical questions, that each of the gang members involved in the crime had a specific knowledge and intent. (Killebrew, supra, 103 Cal.App.4th at p. 658.) Specifically, the expert, Detective Darbee, testified that each of the individuals in three cars (1) knew there was a gun in the Chevrolet and a gun in the Mazda, and (2) jointly possessed the gun with every other person in all three cars for their mutual protection. “In other words, Darbee testified to the subjective knowledge and intent of each occupant in each vehicle.” (Ibid.) This, the court said, was improper, because it “did nothing more than inform the jury how Darbee believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. [Citation.]” (Ibid.)
In People v. Gonzalez, supra, 38 Cal.4th at page 946, footnote 3, the California Supreme Court observed that the appellate court’s opinion in Killebrew “is somewhat unclear,” because it “never specifically states whether or how the expert referred to specific persons, rather than hypothetical persons. Obviously, there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. . . .” The court also read Killebrew as “merely ‘prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’” (Id. at p. 946, citing People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.)
In any event, defendant’s reliance on Killebrew is misplaced. Kwan did not give an opinion on the ultimate issue of defendant’s specific intent in committing the charged crimes. Rather, Kwan properly opined that crimes were committed in association with the EYC and with the specific intent of benefiting the EYC, based on how and with whom the crimes were committed and based on Kwan’s training and experience in dealing with criminal street gangs, including the EYC.
We recognize that some of the prosecutor’s questions and some of Kwan’s answers strayed from the hypothetical form and referred directly to the defendant and his companions. For example, Kwan generally explained that, in forming his opinion that the crimes were committed in association with and with the specific intent of benefiting the EYC, he found it significant that (1) defendant went to pick up Armando before defendant, Gerardo, and Carlos went to find Reyes, (2) EYC was called out during the altercation, and (3) Armando stayed behind after defendant and Gerardo chased Reyes into the side yard, and told Gabriel not to mess with the EYC if he did not want any trouble.
Rather than referring to defendant and his companions specifically, the prosecutor and Kwan should have kept their questions and answers in hypothetical form. Nevertheless, it was sufficiently clear to the jury that Kwan was basing his opinion on the customs, habits, and psychology of criminal street gangs in general, and how they typically act and react in certain situations. (See People v Gardeley, supra, 14 Cal.4th at pp. 617-619.) Despite the prosecutor’s and Kwan’s occasional references to the parties involved, Kwan did not render an improper opinion on the ultimate issue of defendant’s specific intent in committing the charged crimes.
D. Substantial Evidence Supports the Gang Enhancements
Defendant next claims that insufficient evidence supports the gang enhancements on counts 1 and 2. We reject this claim.
A criminal street gang enhancement requires proof that the defendant committed the underlying felony (1) “for the benefit of, at the direction of, or in association with any criminal street gang” and (2) “with the specific intent to promote, further, or assist in any criminal conduct” by gang members. (§ 186.22, subd. (b)(1).) Defendant argues there is insufficient evidence to support either the first or second prong of the gang enhancements.
In reviewing this claim, we examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value, from which a reasonable trier of fact could have found the disputed elements of the enhancements true beyond a reasonable doubt. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
Regarding the first prong of the enhancements, defendant notes that even Kwan acknowledged defendant was not a member of the EYC or any other gang. Thus, defendant argues that Kwan’s “inconsistent testimony that the offenses were committed as gang retaliation is not of solid, credible value. And while someone apparently yelled out the EYC name at the time of the altercation, there is no evidence [defendant] yelled this or shared the intent of whoever did.”
This argument is unavailing. First, gang membership is not an element of a gang enhancement under section 186.22, subdivision (b)(1). “[N]or does one need to be a gang member or associate to commit an act for the benefit of, in association with, or at the direction of a street gang.” (People v. Valdez, supra, 58 Cal.App.4th at p. 505.) Accordingly, Kwan’s acknowledgement that defendant was not a member of the EYC is not inconsistent with his testimony that the crimes were committed in association with the EYC. And although, as defendant argues, there was no evidence he was the person who yelled out the EYC name at the time of the altercation, there is ample evidence he committed the crimes in association with the EYC.
Indeed, the evidence showed that defendant, accompanied by Gerardo, Armando, and Carlos, drove to Carranza’s house to confront Reyes shortly after Reyes accosted defendant and hit his car bumper with a metal pipe as defendant was driving to a local laundromat. Defendant first went home, where he was met by Gerardo and Carlos. Then the three of them went to pick up Armando before they went to Carranza’s house. When they arrived at Carranza’s house, defendant was armed with a knife and his companions were armed with various tools.
Furthermore, Armando and Carlos were self-admitted EYC associates, and Kwan indicated that Armando was a documented EYC member. Defendant admitted he had known Armando for seven years and Carlos for one year. As Kwan testified, it is also significant that Armando stayed behind while defendant and Gerardo chased Reyes through the gate and into the side yard, and told Gabriel he should not “mess with” the EYC if he did not want trouble with them. Based on all of the evidence, including Kwan’s expert testimony concerning the customs, habits, and psychology of criminal street gangs, the jury could have reasonably inferred that defendant committed the charged crimes in association with the EYC.
Regarding the second prong of the enhancements, defendant argues there is insufficient evidence that he harbored a specific intent to promote EYC criminal activity. He claims the only evidence that arguably addressed this issue was Kwan’s improper opinion that the crimes were “committed with a specific intent to either promote, further, or assist the criminal conduct of EYC.” We disagree. As discussed, Kwan did not render an improper opinion on the issue of defendant’s specific intent.
Moreover, specific intent to benefit a gang is not required. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) “What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members . . . .’” (Ibid.; § 186.22, subd. (b)(1); see also People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [second prong of gang enhancement is satisfied by showing of “[c]ommission of a crime in concert with known gang members”].)
Here, the evidence showed that Armando and Carlos were self-admitted EYC associates, and Kwan also indicated that Armando was a documented EYC member. In any event, at the scene of the crimes, Armando told Gabriel not to “mess with the EYC.” And Kwan testified that the use of the EYC name “causes fear and intimidation” and allows the gang to commit crimes “without the police being called.” Kwan’s testimony showed that the commission of crimes by EYC associates was beneficial to the criminal conduct of EYC members.
Thus, even if defendant did not commit the crimes in concert with any known gang members, he committed the crimes with known gang associates. And this evidence, together with Kwan’s testimony, allowed the jury to reasonably infer that defendant committed the crimes with the “‘specific intent to promote, further, or assist in any criminal conduct by gang members . . . .’” (People v. Morales, supra, 112 Cal.App.4th at p. 1198.)
E. The True Finding on the Uncharged Personal Use Enhancement on Count 1 Must Be Stricken
Defendant requests that this court strike the uncharged personal use enhancement on count 1 (§ 12022, subd. (b)(1)), because it was not charged in the information and, for this reason, violates his statutory and due process rights to notice of the enhancement. The People agree that the personal use enhancement must be stricken, but for a different reason.
A personal use enhancement was charged in count 2, but not in count 1. Apparently, the trial court erroneously gave the jury verdict forms for personal use enhancements on counts 1 and 2.
The People argue that defendant had ample notice he was being accused of using a deadly weapon in the commission of the aggravated assault, and in any event has waived his statutory and due process notice claims because he failed to object to the true finding on the enhancement when the jury returned it. Nevertheless, the People concede that “[a] conviction under section 245, subdivision (a)(1) cannot be enhanced pursuant to section 12022, subdivision (b)” because defendant’s use of the knife was an element of the assault.
We agree that the personal use enhancement must be stricken because defendant’s use of the knife was an element of the aggravated assault. Section 245, subdivision (a)(1) prohibits two forms of conduct: (1) assault with a deadly weapon other than a firearm; or (2) assault by means of force likely to produce GBI. And where, as here, the defendant commits an aggravated assault by stabbing the victim with a knife, a personal use enhancement is an element of the assault. (People v. McGee (1993) 15 Cal.App.4th 107, 110.) It is therefore unnecessary to address defendant’s notice claims.
F. Defendant’s Abstract of Judgment Must Be Corrected to Delete the Reference to the Stayed GBI Enhancement on Count 2
Defendant claims his abstract of judgment must be corrected to delete its reference to a stayed GBI enhancement on count 2. (§ 12022.7, subd. (a).) The People agree, and so do we.
The jury found the GBI enhancement allegation not true in count 2, and the trial court recorded the finding. But in pronouncing sentence, the trial court ordered punishment on the enhancement “stayed or stricken.” This was error. There was no true finding to be ordered stricken. Nor was there any punishment to impose that could have been ordered stayed or stricken.
An abstract of judgment must accurately reflect the judgment. (See, e.g., People v. Martinez (1998) 65 Cal.App.4th 1511, 1523.) We therefore remand the matter with directions to the trial court to correct the abstract to delete any reference to a GBI enhancement on count 2.
G. The Matter Must Be Remanded for Resentencing
Lastly, defendant claims the trial court violated his right to a jury trial in imposing the upper term of four years on count 1 based on facts that were neither found by the jury nor admitted by defendant. (Cunningham, supra, 127 S.Ct. 856.) Defendant claims this court should modify his sentence by imposing the middle term of three years on count 1.
The People claim defendant has forfeited any claim of error by failing to raise it in the trial court. Alternatively, the People argue that the upper term sentence must be upheld because the trial court’s findings were based on facts the jury necessarily found true. In any event, the People argue that any error was harmless beyond a reasonable doubt. For the reasons that follow, we remand the matter for resentencing in light of Cunningham.
1. Relevant Background
The trial court selected count 1 as the principle count, and found the following factors in aggravation true for count 1: (1) defendant was armed with or used a weapon in the commission of the crime (Cal. Rules of Court, rule 4.421(a)(2)); (2) the victim was particularly vulnerable (rule 4.421(a)(3)); (3) defendant induced others to participate in the crime (rule 4.421(a)(4)); (4) the manner in which the crime was carried out indicated planning (rule 4.421(a)(8)); (5) the crime involved damage of great monetary value (rule 4.421(a)(9)); and (6) defendant engaged in violent conduct that indicates he is a serious danger to society (rule 4.421(b)(1).)
All further references to rules are to the California Rules of Court.
The trial court also found that the crime involved great violence or great bodily harm (rule 4.421(a)(1)), but subsequently recognized that the prohibition against dual use of facts barred the use of this factor to justify an upper term sentence where a GBI enhancement is imposed (§ 1170, subd. (b); rule 4.420(c)). In addition, the trial court’s finding that defendant was armed with or used a weapon in the commission of the crime (rule 4.421 (a)(2)) cannot be used as an aggravating factor because it was an element of the crime (see § 1170, subd. (b); rule 4.420(d)). Indeed, defendant’s use of the knife constituted the assault by which he used force likely to produce GBI. (People v. McGee, supra, 15 Cal.App.4th at p. 110.)
As a factor in mitigation, the court found that defendant had no prior record. (Rule 4.423(b)(1).) The court also found it “marginally arguable” that the victim was an initiator, willing participant, aggressor, or provoker of the incident (rule 4.423(a)(2)), and “arguably a factor” that the crime was committed because of unusual circumstances which were unlikely to recur (rule 4.423(a)(3)). In selecting the upper term for count 1, the court impliedly found that the factors in aggravation outweighed the factors in mitigation.
2. Applicable Law and Analysis
In Cunningham, the United States Supreme Court held that the imposition of an upper term sentence under California’s determinate sentencing law (DSL), based on a judge’s finding by a preponderance of the evidence that circumstances in aggravation outweighed circumstances in mitigation, violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 871.) The high court reasoned that any fact that exposes a defendant to a greater potential sentence than the statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Id. at pp. 863-864.) The high court also held that the middle term sentence (here, three years), is the maximum sentence a judge may impose under the DSL without the benefit of facts reflected in the jury’s verdict—that is, facts found true by a jury beyond a reasonable doubt—or admitted by the defendant. (Id. at p. 868.)
In response to Cunningham, the California Legislature amended the DSL by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40).) Our references to section 1170 or other provisions of the DSL are to the statutes as they read prior to these amendments. Also, in response to the Legislature’s amendment of the DSL, the Judicial Council amended the sentencing rules effective May 23, 2007. Our references to the California Rules of Court are as they read prior to these amendments.
(a) No Forfeiture
As a preliminary matter, we reject the People’s claim that defendant has forfeited his claim of Cunningham error by failing to raise it in the trial court. Defendant was sentenced in August 2006, several months before Cunningham was decided in January 2007. At the time defendant was sentenced, the state Supreme Court had already determined that an upper term sentence imposed in accordance with the DSL does not violate a defendant’s right to a jury trial. (People v. Black (2005) 35 Cal.4th 1238, 1257-1258 (Black I).) The trial court was bound by the decision in Black I at the time it sentenced defendant. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, any request for a jury trial on factors in aggravation, or any objection to the upper term on the grounds it violated defendant’s right to a jury trial, would have been futile. (See People v. Welch (1993) 5 Cal.4th 228, 237-238.) For this reason, defendant is excused from failing to raise the Cunningham issue in the trial court at the time he was sentenced. (People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).)
(b) The Trial Court Was Not Authorized to Impose the Upper Term
The state supreme Court recently decided People v. Black (2007) 41 Cal.4th 799 (Black II), following the United States Supreme Court’s remand of Black I for reconsideration in light of Cunningham. In Black II, the court recognized that, under the DSL, the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (See § 1170, subd. (b); Black II, supra, at p. 815, citing People v. Osband (1996) 13 Cal.4th 622, 728.) Accordingly, the court in Black II held that a trial court’s finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, supra, at p. 812.) “[A]ny additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Ibid.)
An aggravating circumstance is one that “makes the offense ‘distinctively worse than the ordinary.’ [Citation.]” (Black II, supra, 41 Cal.4th at p. 817.) Accordingly, aggravating circumstances include not only those listed in rule 4.421, but also “[a]ny other facts statutorily declared to be circumstances in aggravation,” (rule 4.421(c)) and any other facts “reasonably related to the decision being made” (rule 4.408(a)).
The court in Black II explained: “Cunningham requires U.S. to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at pp. 815-816, italics added.)
Here, there are no factors in aggravation that satisfy the Sixth Amendment requirements. As one aggravating factor, the court found that defendant was armed with or used a weapon in the commission of the crime. (Rule 4.421(a)(2).) The jury necessarily found this fact true when it convicted defendant of the aggravated assault in count 1. But this fact was also an element of the crime (People v. McGee, supra, 15 Cal.App.4th at p. 110), and for this reason cannot be used as an aggravating factor (§ 1170, subd. (b); rule 4.420(d) [prohibiting use of crime element as aggravating factor]). None of the other aggravating factors were either established by the jury’s verdict or admitted by defendant, and defendant has no record of prior convictions.
Thus, here, there are no factors in aggravation that render defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at pp. 812-813, 815-816.) It follows that the trial court’s imposition of the upper term of four years on count 1 violated defendant’s Sixth Amendment right to a jury trial. We next consider whether this federal constitutional error is harmless beyond a reasonable doubt.
(c) The Error is Not Harmless
In Sandoval, the state Supreme Court recognized that the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California, supra, 386 U.S. at page 24. (Sandoval, supra, 41 Cal.4th at p. 838; Washington v. Rencuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 165 L.Ed.2d 466].) The question the reviewing court must determine is whether the jury would have authorized the upper term sentence if the question of the existence of an aggravating circumstance or circumstances would have been submitted to the jury. “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Sandoval, supra, at p. 839.)
Here, we cannot say that the jury would have found any aggravating factor true beyond a reasonable doubt. As noted, the trial court found as factors in aggravation that: (1) defendant was armed with or used a weapon in the commission of the crime (rule 4.421(a)(2)); (2) the victim was particularly vulnerable (rule 4.421(a)(3); (3) defendant induced others to participate in the crime (rule 4.421(a)(4)); (4) the manner in which the crime was carried out indicated planning (rule 4.421(a)(8)); (5) the crime involved damage of great monetary value (rule 4.421(a)(9)); and (6) defendant engaged in violent conduct that indicates he is a serious danger to society (rule 4.421(b)(1)).
As also discussed, the trial court found that the crime involved great violence or great bodily harm (rule 4.421(a)(1)), but subsequently recognized that the prohibition against dual use of facts barred the use of this factor to justify an upper term sentence where a GBI enhancement is imposed (§ 1170, subd. (b); rule 4.420(c)). In addition, the trial court’s finding that defendant was armed with or used a weapon in the commission of the crime (rule 4.421(a)(2)) also cannot be used as an aggravating factor because it was an element of the crime (ibid.; People v. McGee, supra, 15 Cal.App.4th at p. 110.) If, under the former DSL, a factor could not be used to impose an upper sentence, it also could not be used to render the defendant eligible for an upper sentence.
This leaves U.S. to consider whether the jury would have found beyond a reasonable doubt whether: (1) the victim was particularly vulnerable; (2) defendant induced others to participate in the crime; (3) the manner in which the crime was carried out indicated planning; (4) the crime involved damage of great monetary value; (5) defendant engaged in violent conduct that indicates he is a serious danger to society; and (6) any other factors bearing on the decision being made. (Rule 4.408(a).) We cannot say that the jury would have found any of these factors true beyond a reasonable doubt.
First, it was questionable whether the victim, Reyes, was particularly vulnerable. Although Reyes was unarmed, the evidence showed he initiated the confrontation with defendant by hitting defendant’s car bumper with a metal pipe. Second, the evidence that defendant induced others to participate in the crime was unclear. Defendant testified that Gerardo and Carlos were waiting for him at his house when he returned home after the initial confrontation with Reyes, and it is unclear whether it was defendant’s idea to find Reyes, or to pick up Armando before the group went to look for Reyes. Third, although the crime was planned to the extent that defendant and his three companions deliberately went to find Reyes and armed themselves before doing so, the evidence also showed that the decision to confront Reyes was made on the spur of the moment and without a lot of consideration or reflection.
The fourth and fifth factors present closer questions. The crime involved damages of great monetary value in that Reyes required medical attention and suffered GBI because the tendon to one of his fingers was severed. Still, it is questionable whether the jury would have found beyond a reasonable doubt that the crime involved great monetary value. Similarly, although the trial court found by a preponderance of the evidence that defendant engaged in violent conduct that indicates he is a serious danger to society, defendant had no criminal record. Thus, it is doubtful that the jury would have found this factor true beyond a reasonable doubt.
(d) The Matter Must Be Remanded for Resentencing
Because the error in sentencing defendant to the upper term on count 1 is not harmless beyond a reasonable doubt, the imposition of the upper term on count 1 must be reversed and the case must be remanded to the trial court for resentencing in a manner consistent with the Sixth Amendment as interpreted in Cunningham. (Sandoval, supra, 41 Cal.4th at p. 843.) In Sandoval, the state Supreme Court retroactively reformed the DSL to conform to the California Legislature’s urgency legislation amending the DSL effective March 30, 2007. (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40).) This urgency legislation was itself designed to cure the constitutional defect in the DSL identified in Cunningham. As explained in Sandoval, the retroactive reformation of the DSL in conformity with the urgency legislation means that, on remand, the trial court will have discretion to impose the upper, middle, or lower term, and must state its reasons for its sentencing choice. (Sandoval, supra, at pp. 846-847.) The Judicial Council’s amendments to the sentencing rules, made effective May 23, 2007, are designed to conform to the current and retroactive version of DSL, and will provide guidance for the trial court on remand. (Id. at p. 846.)
IV. DISPOSITION
The matter is remanded to the trial court with directions to: (1) strike defendant’s personal use enhancement in count 1; (2) amend defendant’s abstract of judgment to delete all references to his GBI enhancement in count 2; and (3) resentence defendant in in accordance with the retroactive amendments to the DSL and the recent amendments to the sentencing rules.
We concur: Gaut, Acting P.J. Miller, J.
The instruction further states that “[t]he word ‘willfully’ means that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person. [¶] To constitute an assault, it is not necessary that any actual injury be inflicted. However, if an injury is inflicted it may be considered in connection with other evidence in determining whether an assault was committed [and, if so, the nature of the assault].”