Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. LA055116. Martin L. Herscovitz, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant Alvaro Guerra.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant Elder Robles.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan, Peggy Z. Huang, Jason Tran and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN , P. J.
A jury convicted Alvaro Guerra (Guerra) and Elder Robles (Robles) of the first degree murder of Juan Carlos Morales (Morales) (Pen. Code, § 187, subd. (a)) (count 1) and assault with a firearm (§ 245, subd. (a)(2) (count 4). Robles was additionally convicted of assault with a deadly weapon (§ 245, subd. (a)(1) (count 3). The jury found that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). With respect to the murder, the jury found that a principal personally and intentionally discharged and used a firearm pursuant to sections 12022.53, subds. (b), (c), (d), and (e)(1).
All further references to statutes are to the Penal Code unless stated otherwise.
Guerra and Robles were tried with two codefendants, Guillermo Reveles (Reveles) and David Rivas (Rivas).
The information shows that the murder was charged as count 1, the assault with a deadly weapon on F.O. was charged as count 3, and the assault with a firearm on J. was charged as count 4. The abstracts of judgment use the same numbering of counts. The verdict forms show the murder as count 1, the assault with a deadly weapon on F.O. as count 2, and the assault with a firearm on J. as count 3. We have used the numbering shown on the verdict forms.
Guerra was sentenced in count 1 to 25 years to life for the murder and a consecutive 25 years to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). The trial court imposed and stayed the remaining firearm enhancements in count 1. The trial court imposed and stayed a 10-year gang enhancement in count 1. The trial court imposed a concurrent term of three years in count 3. It struck the gang enhancement in count 3 under section 186.22, subdivision (b)(1)(C). The trial court ordered Guerra to pay, jointly and severally with his codefendants, the sum of $6,800 to reimburse the State Victim Compensation Board for money paid to the victim’s family.
Guerra’s abstract of judgment does not show that the gang enhancement was imposed and stayed.
The trial court sentenced Robles to 25 years to life for the murder and a consecutive 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1), staying the remaining firearm enhancements. According to the abstract of judgment, the trial court imposed and stayed a gang enhancement in count 1. In count 3, the trial court imposed a concurrent term of eight years consisting of the midterm of three years and five years for the gang enhancement. In count 4 the trial court imposed a concurrent term of eight years as in count 3. The trial court ordered restitution in the amount of $7,903 to be paid jointly and severally with Robles’s codefendants.
Guerra appeals on the ground that the trial court violated his federal constitutional guarantee of due process by instructing the jurors that they should consider the extent to which the eyewitness was “certain” about his identification of the perpetrator.
Robles appeals on the grounds that: (1) the trial court erred when it denied his motion to sever the count pertaining to the February 2007 assault from the March 2007 shooting; and (2) the abstract of judgment must be corrected, since the trial court did not impose and stay a gang enhancement in count 1 as shown on the abstract of judgment.
Respondent argues that remand for resentencing is required in Robles’s case, since the trial court’s failure to impose or strike the gang enhancement in count 1 during oral pronouncement of judgment amounts to a legally unauthorized sentence. Respondent also contends the abstract of judgment in Robles’s case must be amended to reflect the correct dollar amount of the victim restitution ordered during oral pronouncement of judgment.
FACTS
Prosecution Evidence
The Assault Incident
On February 10, 2007, Elva O. (Elva) was in her kitchen while her son, F.O., was barbecuing outside their apartment home. Elva heard shouting and the words, “Hey, fool,” and decided to go outside. F.O. was trying to come back inside because he was being assaulted. Elva threw a chair at the attacker, who was hitting F.O. with his fists. The attacker was a young Hispanic. Elva saw another man approaching with a baseball bat. When the fellow she had hit with the chair got up, four men, including the attacker, ran to a vehicle that was waiting for them in the driveway. A female was in the driver’s seat. Elva said she had not seen any of the men or the female before. In June 2007, Detective Allan Salazar (Salazar) showed Elva some photographs. Elva circled Robles’s photograph as the man she saw with the bat. This was the only identification she made in the four six-packs she was shown.
F.O. heard his attackers say “A.K.” and saw them throw the gang sign for the A.K. gang. He was hit on the left cheek with the bat and suffered a loose tooth. He could not identify any of the defendants as his attackers because he could no longer remember. He insisted he was not afraid of them. He remembered identifying three people in court previously, but no longer remembered them. He identified some photographs that Salazar showed him, including one of someone called Shaggy and one of someone called Chucky, but he did not know if they were in court.
Maria Monroy (Monroy) lived with her husband, Joe Marquez (Marquez), in the same apartment complex as Elva’s family. At approximately 5:00 p.m., she was leaving her apartment when a green SUV pulled into the driveway. Some men, whom she identified as three of the defendants, came out of the car with a bat and hit her neighbor F.O. with it. Monroy went back inside. She knew the three men as Shaggy, Chucky, and Bones. In court she identified Reveles as Chucky, Robles as Bones, and Rivas as Shaggy. Her husband told her who Bones (Robles) was. She heard one or all of the men say “Barrio A.K.” Chucky (Reveles) also hit her door with the bat. She later said that Robles was the one who hit F.O. with the bat.
Monroy had seen Reveles many times before the attack on F.O. One or two months before the bat incident, Reveles confronted Monroy’s husband, saying “A.K.” and that her husband was “187.” Monroy said she had never heard of the A.K. gang before, and she was nervous about testifying against alleged gang members. Salazar showed Monroy some photographic lineups. She identified Reveles, Robles, and Rivas.
Marquez had been “hit up” previously by three of the defendants (Rivas, Reveles, and Robles) and a bunch of other guys. Marquez saw Shaggy (Rivas) standing by with a crowbar during the incident with F.O. Marquez identified Reveles, Robles, and Rivas by their monikers when he was shown the six-packs.
The Homicide
On March 6, 2007, at approximately 5:15 p.m., Wilfredo Mejia (Mejia) was outside his home with his stepson, Morales. A white Toyota 4-Runner drove by and then turned and came back. Its occupants screamed they were from A.K. There were four Hispanic males in the car. Obed Orellana (Orellana), Mejia’s brother-in-law, was present, as was J., Mejia’s other stepson, and B.T. Mejia told the car’s occupants that he and his companions were not gangsters and that they should leave. The two rear passengers made gang signs with their hands. Morales, who had just finished washing his car on the street, turned off his car radio and said “What’s up?” to the men in the car. The front passenger shot Morales twice. Morales died from two through-and-through gunshot wounds to the abdomen that injured major organs and caused severe bleeding.
Mejia identified Guerra in court as the driver. He stated Robles and Rivas were in the rear seat. Reveles was the shooter. One of the persons in the backseat, the one behind the driver, was covering half his face with his T-shirt or hoodie. Mejia did not know the monikers of the men until after the shooting, although he identified them by their monikers in court. He said he knew who the four persons were after his stepson Joseph told him who they were, but he also remembered them.
Orellana was Morales’s uncle. He heard the people in the white 4-Runner say “A.K.” and ask if Orellana and his companions belonged to Vineland Boys. Orellana tried to chase the car on foot after Morales was shot, but he hit the ground when the shooter pointed a gun at him. Orellana identified Robles in a photographic lineup as the rear passenger. He identified Reveles as the shooter. Orellana identified Guerra as the driver at a prior hearing.
B.T., Morales’s neighbor, saw the shooting from his balcony. He heard someone ask, “You’re from Vineland, huh?” He saw the white Toyota and a gun sticking out and heard the shots. He saw Bones (Robles) in the vehicle and thought he heard his voice say “A.K.” He identified Robles in a six-pack as the shooter but was not certain at trial. He changed his mind because someone told him Robles was not the shooter.
J. was standing behind Morales and was shot in the right upper thigh. J. saw the driver, Guerra, tap Reveles just before Reveles pulled out the gun. Reveles was the shooter, and Reveles also pointed the gun at those who chased the car. Robles, in the rear seat, tried to cover his face with a cap pulled down toward his nose. Robles had “hit up” J. previously by saying “A.K.” and asking J. where he was from. J. identified Guerra, Robles, and Reveles in photographic lineups. J. acknowledged that he spoke with Yubelka Ortega (Ortega) after the shooting, and she told him who the men in the car were and their names. J. obtained three numbers from the 4-Runner’s license plate and gave it to the police.
Ortega was Morales’s ex-girlfriend at the time of the shooting. She had been a member of A.K. when she was in high school. She identified Guerra as Maniak and Robles as Bones in court and said they were members of the A.K. gang. She had seen Robles with his girlfriend one day, and he had asked Ortega if she was still going out with “that fool from Vineland Boys.” When Ortega asked Robles why he wanted to know, Robles replied, “Oh, we’re looking for that fool. We got a beef with Vineland Boys, and he’s going to be the first one.” This occurred two or three months before Morales was shot. Ortega testified that Morales was not a member of Vineland Boys.
Officer Antonio Lopez conducted surveillance in Palmdale of a white SUV that police had identified as the stolen car used in the shooting. He observed Guerra turn the SUV around. Guerra went inside a residence and then returned to the SUV. He began cleaning the car while wearing gloves and holding a white trash bag. He went inside and came out again with Robles, who was wearing gloves and carrying a white trash bag. Two more male Hispanics joined Guerra and Robles in going through the car. They left the gloves and bags inside the car and went inside the residence. The four men later came out, got in the car, and drove out of the area.
Los Angeles County Sheriffs made a traffic stop of the SUV, and the four defendants were in the car. Reveles had a nine-millimeter bullet in his pocket. When the car was searched, police found a loaded nine-millimeter pistol under the driver’s seat. Nine 9-millimeter hollow-point bullets were found. Numerous casings were found—some inside the two white trash bags. Inside the residence the men had left, police found an envelope of photographs showing gang members. Subsequent testing revealed that the firearm found in the white SUV fired the cartridge cases and the bullet found at the scene of Morales’s shooting.
Salazar testified as a gang expert. He described the hand signs and territory of the Assassin Kings gang, which was known as “A.K.” The detective stated that the gang members would commit murder to protect their turf. He identified appellants in court by their monikers, which were contained on a gang roster shown to the jury. He had found no evidence that Morales was a gang member.
Salazar believed the shooting of Morales was for the benefit of the gang. He was also of the opinion that the assault on F.O. was for the benefit of the gang in that it created an atmosphere of fear and intimidation. The parties stipulated that the A.K. gang has as its primary activities various felony crimes listed in section 186.22 and that they have engaged in a pattern of criminal activity.
Defense Evidence (Guerra)
B.T. told a defense investigator that he had identified Bones (Robles) as the shooter but that he had changed his mind. He had identified Bones because J. was saying the shooter was Bones, and B.T. just went along with it. J. later told B.T. someone else was the shooter. B.T. told the defense investigator that the shooter was Chucky (Reveles).
The parties stipulated to the results of examinations of fingerprints lifted from the Toyota 4-Runner. The prints belonged to David Estrada, Reveles, Rivas, and Joel Rodriguez. No latent prints were developed from the gun.
DISCUSSION
I. CALCRIM No. 315
A. Guerra’s Argument
Guerra contends that the trial court erred in reading that portion of CALCRIM No. 315 that directs the jurors to consider the degree of an eyewitness’s certainty as one of the factors to use when they assess the reliability of the eyewitness’s identification. He asserts that the trial court’s recitation of this factor constituted federal constitutional error.
The trial court instructed the jury with CALCRIM No. 315 as follows: “You have heard eyewitness testimony identifying the defendant. As with any other witnesses, you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony, consider the following questions: Did the witness know or have any contact with the defendant before the event [?] How well could the witness see the perpetrator [?] What were the circumstances affecting the witness’[s] ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation [?] How closely was the witness paying attention [?] Was the witness under stress when he or she made the observation [?] Did the witness give a description, and how does that description compare to the defendant [?] How much time passed between the event and the time when the witness identified the defendant [?] Was the witness asked to pick the perpetrator out of a group [?] Did the witness ever fail to identify the defendant [?] Did the witness ever change his or her mind about the identification [?] How certain was the witness when he or she made an identification [?] Are the witnesses and the defendant of different races [?] Was the witness able to identify other participants in the crime [?] Was the witness able to identify the defendant in a photographic or physical lineup [?] Were there any other circumstances affecting the witness’ ability to make an accurate identification [?]”
B. Proceedings Below
The trial court distributed its proposed jury instructions and asked if there were any objections. Three of the defense attorneys had no objections, but counsel for Robles requested that the trial court read CALCRIM No. 315. The trial court stated it had an edited copy of CALCRIM No. 315 on hand and ascertained that the prosecutor had no objections. Robles’s attorney thanked the trial court.
C. No Error
At the outset, this issue has been forfeited on appeal, since there was no objection to the trial court’s reading of CALCRIM No. 315. (People v. Farnam (2002) 28 Cal.4th 107, 165; People v. Mitchell (2008) 164 Cal.App.4th 442, 465; § 1259.) In any event, the claim is without merit.
The California Supreme Court approved CALJIC No. 2.92, the predecessor to CALCRIM No. 315. (People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright).) “CALJIC No. 2.92 or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.” (Wright, at p. 1144.) The Supreme Court explained “that the listing of factors to be considered by the jury will sufficiently bring to the jury’s attention the appropriate factors, and that an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. The instruction should list the applicable factors in a neutral and nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness. It should list only factors applicable to the evidence at trial, and should refrain from being unduly long or argumentative.” (Id. at p. 1143, fn. omitted.)
In a later case, the Supreme Court rejected the argument that a trial court errs when instructing the jury that the certainty of a witness is a factor to consider in assessing eyewitness testimony. (People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232.) The Court has also rejected the notion that a trial court was obligated to modify CALJIC No. 2.92 sua sponte regarding a witness’s level of certainty. (People v. Ward (2005) 36 Cal.4th 186, 213-214.) In People v. Sullivan (2007) 151 Cal.App.4th 524, 561, the defendant argued that the trial court erred by failing to delete sua sponte the certainty factor from CALJIC No. 2.92. Relying on Wright’s reasoning and its express approval of CALJIC No. 2.92, the court rejected that notion as well as the contention that CALJIC No. 2.92 violated defendant’s “‘right to due process, because it reinforced a pervasive misconception and lightened the prosecution’s burden of proof.’” (People v. Sullivan, at pp. 561-562.)
Eliminating the certainty factor from CALCRIM No. 315 effectively would endorse psychological studies that discount or explain its impact and therefore conflict with the Supreme Court’s admonition that an instruction should not take a position on each of the factors listed. (Wright, supra, 45 Cal.3d at pp. 1141-1142.) Appellants were free to put on an expert who could explain the certainty factor according to appellants’ point of view. (Id. at pp. 1142-1143.) The effect of any particular factor “is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate.” (Wright, at p. 1143.)
Moreover, the instruction makes clear that the certainty expressed by an eyewitness in the past or at trial is only one of many factors the jury is told to consider. In this case, Guerra’s attorney stated during closing argument that all four defendants were paraded into the courtroom and identified several times before the preliminary hearing, and their identifications were no secret. She dissected each witness identification and pointed out that the description of the SUV driver as an 18- to 20-year-old bald man with dark skin and no facial hair did not fit Guerra. She urged that the identifications were tainted by a desire to bring people to justice and had been influenced by Ortega.
Robles’s attorney analyzed each witness’s identification and urged the jury to consider the way the identifications were conducted and the credibility of eyewitness identification. He pointed out that all of the eyewitnesses who testified were in court seven or eight times when the defendants were in court, and all of the witnesses got a good look at the defendants. The attorneys for the other two defendants also discussed the identifications and urged that they were inconsistent and unreliable. Given the testimony and argument, the jury would clearly weigh any certainty the witnesses demonstrated in court against their past inconsistencies and acknowledged interactions with other witnesses. The instruction could actually work in appellants’ favor. Accordingly, any error would have been harmless
The mention of the certainty factor in CALCRIM No. 315 was not a significant factor in the convictions, and it is not reasonably probable that appellants would have obtained more favorable verdicts if the instruction had been modified to omit that factor. (People v. Carter (2003) 30 Cal.4th 1166, 1221; People v. Watson (1956) 46 Cal.2d 818, 836.) Consequently, this claim of instructional error must fail.
II. Denial of Robles’s Severance Motion
A. Robles’s Argument
Robles contends that joinder of the counts resulted in an unfair trial in violation of his federal due process rights. He argues that the only common thread between the assault on F.O. and the murder was gang activity, the cumulative gang evidence had a prejudicial effect on the jury, and the identifications in both cases were tainted by witnesses exchanging information, resulting in two weak cases that the trial court joined.
B. Proceedings Below
Guerra and codefendant Reveles moved to sever the murder in count 1 from the assault in count 3 on F.O. The record shows that Guerra’s and Reveles’s attorneys were concerned about statements defendant Rivas made to police after his arrest. The prosecutor told the trial court that all of the defendants made statements to police when they were arrested, and the prosecutor did not intend to use any of these statements in its case-in-chief. Reveles’s attorney said he wanted proper notice if the prosecution changed its mind, and Robles’s attorney joined in that request.
The trial court denied the motion, stating, “The reason for that is that all the crimes are of the same class. I see no prejudice in joining a crime of lesser culpability, lesser to that, in that they’re all jointly—which is the murder, of joining a crime lesser to that, an assault case, with that. I just don’t see the prejudice, with the proper instructions that they are not to consider those events against the defendant. But, then, there’s the added complication here the gang allegation. The People can prove a gang allegation by a prior act by a gang member.” The trial court noted that the assault was in February 2007 and the murder was in March 2007. The People could prove the gang allegation with another count against the defendants, with the result that there would be cross-admissibility. The fact that Guerra was not involved in the February 2007 incident was of no matter, since the People could prove a gang allegation with prior convictions by gang members or prior acts by gang members.
Guerra’s attorney argued that the prejudice of tying Guerra in with the other three defendants based on the other defendants’ actions in the February 2007 assault on F.O. was more prejudicial than probative under Evidence Code section 352. The trial court respectfully disagreed and denied the motion.
C. Relevant Authority
Section 954 provides in pertinent part that “[a]n accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.” “Because consolidation ordinarily promotes efficiency, the law prefers it.” (People v. Ochoa (1998) 19 Cal.4th 353, 409.)
If the statutory requirements for joinder are met, the defendant bears the burden of showing error by demonstrating potential prejudice in light of the showings then made and the facts then known. (People v. Ochoa, supra, 19 Cal.4th at p. 409; People v. Cummings (1993) 4 Cal.4th 1233, 1283, 1284.) The trial court must balance the potential prejudice of joinder against the state’s strong interest in the efficiency of a joint trial. (People v. Bean (1988) 46 Cal.3d 919, 935-936.) A defendant must make a stronger showing of prejudice when appealing denial of severance, since the trial court has wider discretion in denying severance than in the admissibility of evidence. (People v. Cummings, at p. 1284; People v. Bean, at p. 936.)
Prejudice may be shown and a trial court’s refusal to sever consolidated counts may constitute an abuse of discretion where “‘“(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spill-over’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.”’” (People v. Jenkins (2000) 22 Cal.4th 900, 947-948.) These considerations are not all of equal weight. (Id. at p. 948.) For example, the cross-admissibility of evidence is not essential to negate prejudice. (Ibid.) “Determination of a severance issue is ‘a highly individualized exercise, necessarily dependent upon the particular circumstances of each individual case.’ [Citation.]” (People v. Balderas (1985) 41 Cal.3d 144, 173.)
We review the trial court’s decision on a motion for severance for abuse of discretion. (People v. Ochoa, supra, 19 Cal.4th at p. 408.)
D. Motion to Sever Properly Denied
1. Forfeiture
Respondent argues that Robles has forfeited the issue of joinder because he did not join in the severance motion, which was put forth by attorneys for his codefendants, Guerra and Reveles. We agree with respondent that the record shows that Robles joined only in the request to be informed if the prosecutor chose to introduce a codefendant’s statement. Therefore, Robles has forfeited this issue on appeal. (People v. Wilson (2008) 44 Cal.4th 758, 793 [failure to join in a motion by a codefendant generally waives the issue on appeal]; People v. Mitcham (1992) 1 Cal.4th 1027, 1048 [same].) Although Robles’s appeal has been consolidated with Guerra’s, Guerra did not raise this issue on appeal. In any event, we conclude Robles’s claim is without merit. Assuming Guerra would have joined in this issue on appeal had he and Robles appealed jointly, we address the issue as one raised by both appellants in this case.
2. Motion Properly Denied
In the instant case, the statutory requirements of section 954 were met in that the murder in count 1 and the assaults in counts 2 and 3 belong to the same class of crimes. All of these offenses are crimes against the person contained in Title 8 of the Penal Code, and they involve the common element of an assault upon the victim. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243; People v. Walker (1988) 47 Cal.3d 605, 622.)
As the trial court noted, the cross-admissibility of the two incidents was probable, given the fact that both crimes were committed for the benefit of the gang, and one of the two incidents would be admissible in the trial of the other incident to prove the gang allegation. Therefore, appellants would derive no benefit from severance of the charges. Even if the evidence, apart from the gang evidence, were not cross-admissible, the California Supreme Court has dispelled any argument that severance is always required where cross-admissibility of evidence does not exist, even where capital offenses are involved and identical crimes against separate individuals are joined. (People v. Jenkins, supra, 22 Cal.4th at p. 948; People v. Balderas, supra,41 Cal.3d at p. 173.)
Additionally, the other Jenkins factors do not support a finding of prejudice. The evidence of the assaults was not likely to inflame the jury, since no person was seriously harmed. Although Robles asserts that the identifications in both incidents were weak and joinder resulted in two weak cases being strengthened, we disagree. The fact that all four appellants were found with the SUV used in the murder, and that the weapon used to shoot Morales was found in the SUV, signifies that the more serious crime of murder was the stronger case. Also, the identifications in the assault were not weak. The parties stipulated at trial that F.O. identified Robles as the person who hit him with the bat. In addition, Robles was identified by Monroy and Marquez as the person who hit F.O. with a bat. Guerra was not likely to be convicted of the murder merely by association with the defendants who committed the assault, since he was identified as the driver of the vehicle from which the shots were fired by eyewitnesses, and he was driving the vehicle when it was stopped by police.
Moreover, given the disparate circumstances of the two incidents, bolstering of the murder and assault counts was not likely to occur. Finally, neither of the two incidents involved the death penalty, and joinder did not render appellants death-eligible.
On appeal, we must consider the actual impact of joinder on appellants’ trial, even though we have concluded there was no abuse of discretion. (People v. Ochoa, supra, 19 Cal.4th at p. 409; People v. Bean, supra, 46 Cal.3d at p. 940.) We look to the evidence introduced at trial to determine whether appellants were deprived of a fair trial or due process of law. (People v. Bean, at p. 940.) We conclude there is nothing about this consolidation that violated appellants’ state or federal constitutional rights. (See United States v. Lane (1986) 474 U.S. 438, 446, fn. 8 [improper joinder does not in itself violate the Constitution; this occurs only if the error is so great that it denies a defendant the 5th Amend. right to a fair trial].) The evidence of appellants’ guilt in the murder was strong, as previously noted. We perceive no indication that a spillover effect from the assault evidence improperly influenced the jury’s verdicts by causing an emotional bias against appellants. (See, e.g., People v. Musselwhite, supra, 17 Cal.4th at p. 1247.) In this case, the trial court’s denial of the severance motion was not “‘“‘outside the bounds of reason’”’” and therefore not an abuse of discretion. (People v. Jenkins, supra, 22 Cal.4th at p. 947.)
III. Sentencing Issues
A. Argument
Robles contends that his abstract of judgment must be corrected. Although the trial court did not impose a gang enhancement in count 1 during oral pronouncement of judgment, his abstract of judgment shows that an enhancement under section 186.22, subdivision (b)(1)(C) was stayed in count 1. Robles contends this is clerical error that can be corrected on appeal. Respondent argues that remand for resentencing is required in Robles’s case, since the trial court’s failure to impose or strike the gang enhancement during oral pronouncement of judgment amounts to a legally unauthorized sentence.
Respondent also argues that the abstract of judgment in Robles’s case must be amended to reflect the correct dollar amount of the victim restitution ordered during oral pronouncement of judgment.
B. Proceedings Below
At Robles’s sentencing hearing, the trial court imposed a sentence in count 1 of 50 years to life consisting of 25 years to life for the murder and 25 years to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). The trial court imposed and stayed the remaining firearm enhancements under section 12022.53. The trial court did not mention the gang enhancement under section 186.22, subdivision (b)(1)(C), which the jury found to be true. At Guerra’s sentencing hearing, however, the trial court imposed and stayed the 10-year gang enhancement in count 1, although it is not shown in Guerra’s abstract of judgment.
C. Relevant Authority
Section 12022.53, subdivision (e)(1) provides that the personal-use enhancements in section 12022.53 may be imposed when there is merely use by a principal if the gang enhancement allegation against the defendant was found true and any principal committed the acts described in section 12022.53, subdivision (b), (c), or (d).
Section 12022.53, subdivision (e)(2) provides that: “An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 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.) Therefore, unless a defendant commits a crime for the benefit of his or her gang while personally using a firearm, a gang enhancement cannot be imposed in addition to the derivative firearm enhancement.
Nevertheless, section 12022.53, subdivision (e)(2) authorizes the trial court to impose and stay the gang enhancement in a count where a firearm enhancement is imposed pursuant to section 12022.53, subdivision (e)(1) and no personal use was alleged. (People v. Sinclair (2008) 166 Cal.App.4th 848, 854.) Taking into consideration that 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,’” the trial court also may exercise its discretion to strike the gang enhancement under subdivision (g) of section 186.22. (People v. Sinclair, at p. 855.)
An additional consideration in the instant case is that both Robles and Guerra received indeterminate sentences of 25 years to life for the murder of Morales. Section 186.22, subdivision (b)(5) provides that, when a defendant commits a crime punishable by imprisonment for life, the defendant is subject to a minimum term of 15 years before being considered for parole. This 15-year minimum term is in lieu of the determinate gang enhancement, such as the 10-year term imposed and stayed in Guerra’s case. “The determinate term enhancement provided for in [section 186.22,] subdivision (b)(1)(C) is to be applied only when the conviction is of a violent offense for which a determinate term is [prescribed]; if the conviction is of a crime for which an indeterminate term of life in prison is [prescribed], the limitation upon parole eligibility provided for in [section 186.22,] subdivision (b)(5) is applicable. If the parole limitation of [section 186.22,] subdivision (b)(5) is applicable, the 10-year enhancement is not.” (People v. Fiu (2008) 165 Cal.App.4th 360, 390, citing People v. Lopez (2005) 34 Cal.4th 1002, 1007, fn. omitted.)
Therefore, the trial court erred in imposing a 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C) in Guerra’s case. Instead, it appears the trial court should have imposed a limitation upon Guerra’s minimum parole eligibility of 15 years, pursuant to section 186.22, subdivision (b)(5). In addition, the trial court should have imposed the same form of the gang enhancement (minimum 15-year parole eligibility) in Robles’s case. This is, of course, unless the 15-year minimum parole eligibility, like the 10-year enhancements under section 186.22, cannot be imposed pursuant to section 12022.53, subdivision (e)(2).
The California Supreme Court has in recent years made a clear distinction between an “‘enhancement’”— defined as “an additional term of imprisonment added to the base term” (Cal. Rules of Court, rule 4.405(3))—and an “alternate penalty” provision, which specifies a different and increased sentence for the underlying offense itself. (People v. Jefferson (1999) 21 Cal.4th 86, 101 (Jefferson); Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898-900 (Robert L).) Moreover, the Supreme Court has specifically held that the 15-year minimum parole eligibility term found in section 186.22, subdivision (b)(5), is an alternate penalty provision, not an enhancement, “because it is not an ‘additional term of imprisonment’ and it is not added to a ‘base term.’” (Jefferson, at p. 101; accord, People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7 (Briceno) [“[s]ection 186.22, subdivision (b)(5) is an alternate penalty provision that applies to any gang-related underlying felony ‘punishable by imprisonment in the state prison for life’”]; Robert L., at pp. 899-900 [the subdivision provides “an alternate increased sentence in the form of a higher minimum eligible parole date, for certain felonies punishable by life that were committed for the benefit of a criminal street gang”].) There are, however, cases to the contrary. People v. Salas (2001) 89 Cal.App.4th 1275 held that, since the defendant did not personally use a firearm, the 15-year parole eligibility term of section 186.22, subdivision (b)(5) was inapplicable to him when he received a term of 25 years to life for a firearm-use enhancement under section 12022.53, subdivision (d).
Notably, the Supreme Court very recently appears to have altered its view as to the relationship between section 12022.53 and section 186.22. (People v. Brookfield (2009) 47 Cal.4th 583 (Brookfield).) The Court acknowledged its decisions drawing a distinction between penalty provisions and sentence enhancements in the various subdivisions of section 186.22, citing, inter alia, Briceno, Robert L., and Jefferson. (Brookfield, at pp. 592-593.) The Court went on to say that, “[i]f the cases cited in the preceding paragraph had already been decided when the Legislature enacted section 12022.53, it would be reasonable to infer that the Legislature was aware of the distinction this court has drawn between the sentence enhancements and the penalty provisions set forth in section 186.22, and that the Legislature intended the word ‘enhancement’ in the statute to have the narrow meaning articulated by this court. That narrow meaning is this: The word ‘enhancement’ refers only to a sentence enhancement, not a penalty provision. But the cases in question were decided after the Legislature’s enactment of section 12022.53 in 1997. Thus, the Legislature did not have the benefit of this court’s later decisions that have given the term ‘enhancement’ [this] narrow meaning....” (Id. at p. 593, fn. omitted.) The Court then concluded, “It appears that the Legislature’s use of the term ‘enhancement’ in section 12022.53(e)(2) was intended to refer broadly to any greater term of imprisonment for a crime that, as here, is committed to benefit a criminal street gang. This means that, as used in the statute, the word ‘enhancement’ includes not only the sentence enhancements in section 186.22, but also the alternate penalty provisions in that section.” (Brookfield, at p. 593.)
In Brookfield, the Court held that the defendant, who did not personally use a firearm in the gang-related crime of shooting at an inhabited dwelling, was subject to an increased sentence under only one of the statutes in question. (Brookfield, supra, 47Cal.4th at pp. 586, 595.) Therefore, the trial court was barred from imposing both the penalty of a life term under section 186.22, subdivision (b)(4) and the 10-year sentence enhancement under section 12022.53, subdivisions (b) and (e)(1). (Brookfield, supra, at p. 595.) The court also stated, however, that “[n]othing in this opinion should be read as undermining the validity of the strict distinction this court has drawn in the past between sentence enhancements and penalty provisions in other contexts,” citing, inter alia, Briceno, Robert L. and Jefferson. (Brookfield, supra, at p. 595.)
It appears that the conclusion to be reached is that, although the distinction between penalty provisions and enhancements is still valid, the distinction does not apply to the interaction of sections 186.22 and 12022.53. Therefore, since appellants both received consecutive terms pursuant to section 12022.53, subdivisions (d) and (e)(1), and were not the shooters, they cannot be subject to the penalty provision of a 15-year minimum parole eligibility term under section 186.22, and the judgments must be modified accordingly. Imposition of a sentence not authorized by law is subject to judicial correction whenever the error comes to the attention of the trial court or reviewing court. (People v. Panizzon (1996) 13 Cal.4th 68, 88; People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
With respect to the restitution amount, the abstract of judgment states that Robles is required to pay, jointly and severally with his codefendants, the amount of $7,900 in restitution to the victim. The oral pronouncement of judgment shows the correct amount to be $7,903. When the reporter’s transcript and clerk’s transcript conflict, we rely on the one that circumstances suggest is more reliable. (People v. Smith (1983) 33 Cal.3d 596, 599; but see Estate of Caldwell (1932) 216 Cal. 694, 696 [reporter’s transcript always controls].) We see no reason to doubt that the reporter’s transcript accurately reflects the trial courts actual words. Therefore, the abstract of judgment must be corrected.
DISPOSITION
The judgment is modified in Guerra’s case to strike the 10-year gang enhancement that the trial court imposed and stayed. In all other respects the judgments in the cases of both Guerra and Robles are affirmed. The superior court is directed to correct the abstract of judgment in Robles’s case to delete the enhancement under section 186.22, subdivision (b)(1)(C) that is currently shown and to correct the amount of restitution owed. Guerra’s abstract of judgment must be amended to show that his restitution is to
be paid jointly and severally with his codefendants. The superior court is to forward the corrected abstracts to the Department of Corrections and Rehabilitation.
We concur: DOI TODD , J., ASHMANN-GERST , J.