Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF215605B, Kathryn T. Montejano, Judge.
A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel Bernstein and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
A jury convicted Diego Huerta (appellant) as charged in counts 1, 2, and 3 of attempted murder done willfully, deliberately and with premeditation (Pen. Code, §§ 664, 187, subd. (a)); in counts 4, 5, and 6 of assault with a deadly weapon (§ 245, subd. (a)(1)); and in counts 9 and 10 of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury found true the allegations that each offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that appellant was 16 years or older at the time of the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)). It also found true that appellant personally inflicted great bodily injury in counts 3 and 6 (§ 12022.7, subd. (a)), and that he personally used a deadly weapon in count 3 (§ 12022, subd. (b)(1)). The trial court sentenced appellant to a determinate term of four years and an indeterminate term of 49 years to life.
All further statutory references are to the Penal Code unless otherwise stated.
Counts 7 and 8 only involved appellant’s codefendant, Carlos Alberto Huerta.
Appellant contends that polygraph evidence was improperly introduced at trial, that the court erred when it instructed on accomplice testimony, that an officer’s statement during a videotaped interview was impermissible opinion evidence, and that the court committed sentencing error. We agree with one of his two claims of sentencing error, but in all other respects affirm.
FACTS
On January 9, 2009, around 9:45 p.m., Edgar M. and his girlfriend Nerelin S. were standing outside a movie theater waiting to be picked up by Edgar’s mother. With them were Edgar’s brother, Robert M., Nerelin’s sister, and two of Robert’s friends. As they were waiting, a group of four or five people walked past. Appellant, who was at the end of the group, called Nerelin “baby girl” and said “fuck your boyfriend and come with me.” Edgar told appellant to “chill out” and asked “why are you telling her that?”
Appellant then pushed Edgar to the ground and a group of six to eight men and one girl came toward Nerelin and Edgar. The group, including appellant, punched and kicked Edgar. The girl wore red shoes, had a knife in her pocket, and took Robert’s cell phone. Many others in the attacking group also wore red. Appellant was wearing a black beanie.
Robert attempted to help his brother Edgar, but two or three people from the group attacked him, pushed him down, and kicked him. As a result, he suffered a lump on his forehead.
The assistant manager of the theater, David, and two theater employees, Chris and Carlos, went outside and tried to stop the fight. David pulled Edgar from the pile and Edgar ran away.
The attacking group then backed the theater employees against the wall. David told the group to leave or he would call the police. Appellant’s older brother, Carlos Alberto Huerta, who appeared to be in charge of the attacking group, had a knife, yelled “Norte” and “London” and threatened the employees and their families. Appellant yelled that he was putting a hit on the theater employees and their families.
David attempted to get his employees back inside the theater, but someone pulled Carlos’s jacket over his head and several people held him down. After another theater employee yelled that someone in the group had a knife, David ran back outside to help Carlos.
As David was pulling people off of Carlos, appellant stabbed David in the neck, causing a six-inch wound, severing vocal cords and a vein that stemmed from his carotid artery. Chris was stabbed in the arm and suffered nerve damage. He was also stabbed in the back.
Carlos Alberto Huerta stabbed Carlos several times in the back, resulting in seven deep wounds requiring stitches, a punctured lung, a punctured kidney, and two broken ribs.
After one of the attackers waved a red bandana in the air and whistled, someone yelled “all Norte, ” and the attackers ran.
During a police interrogation, Carlos Alberto Huerta admitted that he stabbed a man who took a swing at him at the movie theater. At trial, he testified that he did so to protect his brother who was being attacked.
During police questioning, appellant at first denied being at the movie theater, but then said “some vato” asked him why he was trying to “rush” his girl, so he hit him and then took off running. Appellant admitted starting the fight, but denied having a knife.
Jerry Vela, who was with Carlos Alberto Huerta that evening, testified that he saw appellant on the ground, but did not see him with a knife.
Diego Hidalgo, a friend of appellant’s who was at the theater that evening, testified that he, not appellant, stabbed David in the neck. According to Hidalgo, he saw appellant involved in a fight and went to help him; he found a knife on the ground and “stuck someone in the neck.” He then ran, threw the knife away, and hid under a car. Prior to the current trial, Hidalgo, pursuant to a plea bargain in a judicial proceeding stemming from this same incident, admitted (1) he assaulted three people with a deadly weapon and (2) a gang enhancement. Hidalgo understood that double jeopardy prevented him from being charged more than once for the crimes in this case, but he denied knowing that he had nothing to lose by testifying. He testified that he initially lied to police about not being at the scene. He also testified that he and appellant were friends, and that the people on the videotape were his friends, but he did not remember who they were. Hidalgo did not admit to stabbing David until a few weeks before testifying at trial.
The altercation was recorded on a surveillance camera and shown to the jury. (Exhibits 99-102.)
Both Carlos Alberto Huerta and appellant were gang members, affiliated with the Varrio Chico London Norteno gang.
DISCUSSION
1. Polygraph Evidence
A recording of Detective Abel Iriarte’s interrogation of appellant was played during trial (People’s exhibit 137). The recording included a discussion in which Iriarte asked appellant several times to take a polygraph examination. Appellant repeatedly refused to do so. Appellant contends that, despite trial counsel’s failure to object, this evidence was so improperly prejudicial that the judgment must be reversed. We disagree.
Procedural Background
During the interrogation of appellant by Detective Iriarte, appellant at first denied being at the movie theater; but eventually appellant said some guy at the theater asked him why he was trying to “rush” his girl, so he hit the guy and then took off running. Appellant admitted starting the fight but denied having a knife. Towards the end of the interview, the following colloquy occurred between Iriarte and appellant:
“[Q:] Okay. … I’m gonna ask you a very important question, okay? When we give you a polygraph test, you know what a polygraph test is?
“[A:] What’s that?
“[Q:] It’s a lie detector test?
“[A:] Uh-huh.
“[Q:] Is it gonna show that you’re telling the truth?
“[A:] I’m telling you the truth.
“[Q:] Hold on. When we give you the test is it gonna show-
“[A:] I’m telling you the truth to … I don’t need, I don’t need no test!
“[Q:] Why not?
“[A:] I don’t need no test ’cause I’m telling you.
“[Q:] But the test is-
“[A:] I don’t know why it started, you know? [W]ell, it started because of that, dude. [¶] … [¶]
“[Q:] I believe that, that’s the way it started.
“[A:] Alright, you, but you, alright. See it’s ’cause you guys get me mad ’cause you just-[¶] … [¶]
“[Q:] [W]hy would I get you mad?
“[A:] [C]ause you’re over here, ‘Ah, you need the polygraph test.’ I don’t, I’m telling you already.
“[Q:] Well, I need to make sure that you’re telling me the truth. I don’t believe you.
“[A:] Alright then. Don’t believe me. Don’t believe me then.
“[Q:] So, is the polygraph test gonna (unintelligible) (overtalk)
“[A:] Ah, just take me back to the room.…
“[Q:] Why are you getting upset?
“[A:] ’Cause I … always get mad quick.… [¶] … [¶] … I already told you guys what happened. [¶] … [¶]
“[Q:] Okay? Are you telling the truth?
“[A:] I’m telling you. [¶] … [¶] … I fought him for, for a stupid reason I don’t know why … that stupid reason but I just fought ’em because he got me mad, you know?”
The officer came back to the issue of the polygraph shortly thereafter:
“[Q:] Okay. So, if you took a polygraph, it would show that-
“[A:] Yeah. [¶] … [¶] I was there with Junior. [¶] … [¶]
“[Q:] [S]o, there, shouldn’t be no problem with the polygraph, then?
“[A:] Yeah. I was there with my brother but see, you guys were over here telling me and I, shoot, for real, that’s what always gets me mad ’cause everybody … even ah, like, at Juvy they always tell me, ‘Hey, what about the polygraph test.’ That’s what always gets me mad too.
“[Q:] Why?
“[A:] I don’t know [¶] … [¶]
“[Q:] [T]hat just shows if you’re telling the truth?
“[A:] I know but I’m just telling you guys already.
“[Q:] If it shows that you’re not telling the truth then, then what?
“[A:] I don’t know.”
There was no objection to the mention of the polygraph test, no request to redact the recording to remove the polygraph references, and there was no admonition to the jurors to disregard the references to the polygraph.
Applicable Law and Analysis
Pursuant to Evidence Code section 351.1, subdivision (a), “the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding … unless all parties stipulate to the admission of such results.”
Since defense counsel failed to object to admission into evidence of any reference to appellant’s refusal to take a polygraph test, appellant argues that counsel was ineffective for failing to object to this clearly inadmissible evidence. (See Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) To prove ineffective assistance of counsel, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness [¶] … under prevailing professional norms” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at pp. 688, 694.)
In light of the categorical exclusion of polygraph-related evidence set forth in Evidence Code section 351.1, respondent does not argue that the evidence was admissible. Rather, respondent asserts that defense counsel had permissible tactical reasons for not objecting and that appellant has failed to establish that he was prejudiced by counsel’s lack of objections.
Appellant’s defense at trial was that, although he was the initial aggressor in the altercation, he was not guilty of the greater offenses. Respondent argues that the recording-especially after the officer explains that he wants appellant to submit to a polygraph exam and appellant becomes upset and wants to leave the interview room-could be interpreted as supporting appellant’s argument at trial that appellant acted without premeditation and deliberation on the attempted murder counts.
We find it difficult to imagine that counsel had legitimate tactical reasons for failing to object to any of the references to a polygraph examination. But we need not decide that question since we conclude that appellant was not prejudiced by counsel’s failure to object. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, … that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.)
Appellant’s refusal to submit to a polygraph examination was evidence from which the trier of fact could determine that appellant had a consciousness of guilt and could weaken his credibility. But appellant conceded he was guilty of something, just not the greater charges. And his credibility was already damaged by the fact that he initially insisted, during police questioning, that he was not present at the movie theater but then admitted that he started a fight with “some vato” who suggested he was trying to “rush” his girlfriend.
In light of this strong evidence of appellant’s guilt, we conclude it is not reasonably probable that, but for counsel’s failure to object to references of a polygraph examination, the result of the trial would have been different. (Strickland, supra, 466 U.S. at p. 694.)
Appellant also argues that admission of the evidence violated his right to due process under the federal Constitution. Appellant’s entire argument reads as follows: “This state law evidentiary error violated the federal constitution’s guarantee of Substantive Due Process.” In support he cites certain decisions of the United States Supreme Court, none of which we find applicable. (E.g., Reno v. Flores (1993) 507 U.S. 292 [immigration procedure did not deny procedural due process to juvenile aliens detained on suspicion of being deportable]; Foucha v. Louisiana (1992) 504 U.S. 71, 80 [Louisiana statute violated due process when it allowed continued confinement of insanity acquitee on basis of antisocial personality after review found no mental illness].) Because appellant has not supported his claim of federal constitutional error with adequate argument, we reject this point as not properly raised. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1224, fn. 8.)
2. Instruction on Accomplice Testimony
Appellant contends that the trial court’s instruction on accomplice testimony prejudicially applied the accomplice corroboration rule to exonerating defense accomplice witness Diego Hidalgo. We disagree.
Procedural Background
At trial, Hidalgo testified that he participated in the events at the movie theater and that he, not appellant, stabbed David in the neck.
The trial court instructed the jury in modified language of CALCRIM No. 334 as follows:
“Before you may consider the statement or testimony of Diego Hidalgo you must decide whether he was an accomplice. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant or defendants.
“Someone is subject to prosecution if he or she personally committed the crime or if he or she knew of the criminal purpose of the person who committed the crime and he or she intended to and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime or participate in a criminal conspiracy to commit the crime. A person may be an accomplice even if he or she is not actually prosecuted for the crime.
“If you decide that a declarant or witness was not an accomplice, then supporting evidence is not required and you should evaluate his or her statement or testimony as you would that of any other witness.
“If you decide that a declarant or witness was an accomplice, then you may not convict a defendant of all crimes based on his or her statement or testimony alone. You may use the statement or testimony of an accomplice to convict the defendant only if the accomplice’s statement or testimony is supported by other evidence that you believe, that the supporting evidence is independent of the accomplice’s statement or testimony, and that the supporting evidence tends to connect the defendant to the commission of the crime.
“Supporting evidence however may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crime and it does not need to support every fact mentioned by the accomplice in the statement or about which the accomplice testified.
“On the other hand it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
“… The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice.
“Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not however arbitrarily disregard it. You should give the statement or testimony the weight that you think it deserves after examining with care and caution and in the light of all the other evidence.”
All jury instruction conferences were conducted off the record. There is no indication in the record which party requested the instruction or whether any objection to the instruction was made. In the only reference to the proposed instructions on the record, all parties stipulated to the giving of the instructions, with minor alterations not at issue here.
Applicable Law and Analysis
Appellant contends that the instruction given was prejudicial because Diego Hidalgo was an exonerating defense witness, and the accomplice corroboration rule did not apply to his testimony. We disagree.
“A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.…” (§ 1111.) It is now settled law that properly tailored accomplice instructions may be given when appropriate regardless whether the prosecution or the defense calls the accomplice as a witness.
In People v. Williams (1988) 45 Cal.3d 1268, the court addressed the trial court’s duty to instruct jurors regarding accomplice testimony:
“The law on this question is clear. When an accomplice is called as a witness by the prosecution, the court must instruct the jurors sua sponte to distrust his testimony. [Citations.] When, by contrast, he is called by the defendant, the instruction should be given only at the defendant’s request. [Citations.] Finally, when he is called by both parties, the instruction should be tailored to relate only to his testimony on behalf of the prosecution.” (Id. at p. 1314.)
But in People v. Guiuan (1998) 18 Cal.4th 558, the court modified the People v. Williams rule and determined that, “henceforth, ” whenever an accomplice or a witness who might be determined by the jury to be an accomplice testifies, the trial court should sua sponte instruct the jury that the cautionary instruction “refer[s] only to testimony that tends to incriminate the defendant, ” whether the accomplice was called by the prosecution, defense, or both. (Id. at p. 569.) It also held that the phrase “with care and caution” rather than “distrust” better articulated the proper approach to be taken by the jury to evaluate accomplice evidence. (Ibid.) It therefore concluded that the jury should be instructed to the following effect whenever an accomplice or a witness, who might be determined by the jury to be an accomplice, testifies: “To the extent an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in the case.” (Ibid.)
Appellant does not question whether Hidalgo was an accomplice, but contends that the instruction, as given, erroneously suggested that Hidalgo’s exonerating defense testimony was subject to the accomplice corroboration rule. Specifically, the instruction used in this case differed from CALCRIM No. 334 and deviated from the directive in Guiuan because the admonition did not restrict itself to “testimony of an accomplice that tends to incriminate the defendant.” At issue is the omission of the italicized words in the first sentence of the instruction:
“Before you may consider the statement or testimony of Diego Hidalgo, as evidence against the defendant, you must decide whether he was an accomplice.” (CALCRIM No. 334.)
Appellant argues that “the instruction never said that the accomplice corroboration rule did not apply to testimony favorable to the defense.”
We disagree. While the italicized words were incorrectly omitted, other parts of the instruction limit the accomplice corroboration rule to testimony that tended to incriminate appellant. For instance, the instruction provided:
“If you decide that a declarant or witness was an accomplice, then you may not convict a defendant of all crimes based on his or her statement or testimony alone. You may use the statement or testimony of an accomplice to convict the defendant only if the accomplice’s statement or testimony is supported by other evidence that you believe, that the supporting evidence is independent of the accomplice’s statement or testimony, and that the supporting evidence tends to connect the defendant to the commission of the crime.” (See CALCRIM No. 334.)
The instruction also provided:
“Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution.” (CALCRIM No. 334.)
“When reviewing ambiguous instructions, we inquire whether the jury was ‘reasonably likely’ to have construed them in a manner that violated the defendant’s rights.” (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) Here, the instruction reference to evidence used to “convict” or that “tends to incriminate” is not evidence that is favorable to the defense, and the jury would not have understood it to be so.
Even if error occurred, we find the error harmless. (People v. Flood (1998) 18 Cal.4th 470, 490, 502-504 [instructional error subject to harmless error review].) “Because the [error] is based on section 1111, the asserted error is one of state law, subject to the reasonable probability standard of harmless error under People v. Watson (1956) 46 Cal.2d 818, 836-837.” (People v. Whisenhunt, supra, 44 Cal.4th at p. 214.)
The jury undoubtedly rejected Hidalgo’s testimony that he, not appellant, stabbed David, because it was unworthy of belief. Hidalgo had not admitted to stabbing David until just weeks before trial and well after the issue of his complicity in the events had already been adjudicated and he could no longer be held liable for any additional involvement. In addition, David testified that it was appellant who stabbed him in the neck. Finally, the jury watched the surveillance video of the events in question.
For these reasons, we conclude it is not reasonably likely that the instruction on accomplice liability, as given, contributed to the verdict. Thus, the alleged error is harmless beyond a reasonable doubt.
We also reject appellant’s contention that the instruction violated his federal constitutional guarantee of substantive due process. Federal courts have rejected a due process challenge to the giving of accomplice instructions where the accomplice testified as a defense witness. In U.S. v. Tirouda (9th Cir. 2005) 394 F.3d 683, the Ninth Circuit Court of Appeals held that a properly formulated accomplice instruction may be given “whether [an accomplice] testifies for the prosecution or the defense.” (Id. at p. 687.) Also, informing the jury an accomplice’s testimony must be viewed with greater caution than other witnesses did not violate the defendant’s federal constitutional due process rights. (Id. at pp. 687-688.) “An accomplice’s testimony may be suspect, regardless of whether he testifies for the prosecution or the defense.” (Id. at p. 687.)
3. Opinion Evidence
Appellant next contends that the trial court prejudicially erred in admitting the lay opinion of Detective Iriarte contained in the aforementioned interrogation of appellant, during which the detective repeatedly stated his opinion that appellant was lying. We disagree.
A police officer’s personal opinion regarding the credibility of an interviewee generally is inadmissible either as lay testimony or as expert testimony and should have been redacted upon proper objection. (People v. Melton (1988) 44 Cal.3d 713, 744; People v. Smith (1989) 214 Cal.App.3d 904, 915-916; People v. Sergill (1982) 138 Cal.App.3d 34, 40.) While defense counsel failed to object and never sought to redact specific parts of the officer’s opinion, we find on the merits that any error was harmless.
Appellant was certainly lying to the officer during the videotaped interview and subsequently admitted he had done so. For instance, when asked about the stabbing incident at the movie theater, appellant denied hearing about it, denied being at the theater, and stated he did not know what the officer was talking about. When Detective Iriarte indicated he had seen the surveillance video and that appellant’s statements were not true, appellant then acknowledged that he was there and in fact had started the fight.
In other instances, Detective Iriarte questioned appellant’s statement that he was at the scene by himself and that his description of where he fled to after the fight was inconsistent with the video surveillance and other witnesses’ statements. Appellant eventually stated that he was drunk at the time and that he was not at the scene with one of his brothers.
Detective Iriarte was not asked at trial to opine on appellant’s veracity. In addition, an instruction given provided: “During the interviews the officers asked questions of the defendants. Although both the questions and answers are evidence, the information contained within the officer’s questions are not proven facts. You are the fact finder and you determine what facts have been shown by the evidence.”
Given the overwhelming evidence that appellant had, in fact, lied about his presence at the theater and his participation in the fight, Detective Iriarte’s expression of opinion in the taped interview that he did not believe appellant added little to the evidence the jury heard. It is not reasonably probable that his opinion during the interviews that appellant was lying prejudiced appellant or that redaction of his opinion from the tape would have led to a result more favorable to appellant. (See, e.g., People v. Melton, supra, 44 Cal.3d at p. 745; People v. Smith, supra, 214 Cal.App.3d at pp. 915-916.) Clearly, the error did not alter the outcome of the trial and, thus, does not warrant reversal. (Cal. Const., art. VI, § 13; Evid. Code, § 353.)
4. Imposition and Stay of Gang Enhancement
At sentencing on November 9, 2010, the trial court applied the 15-year minimum parole eligibility period for the three attempted murder convictions (counts 1, 2, and 3) under section 186.22, subdivision (b)(5). However, the minute order for that date states that, in addition to the pronounced oral sentence, the trial court also imposed and stayed a 10-year enhancement on each of the three counts under section 186.22, subdivision (b)(1)(C). Appellant contends and respondent concedes that the imposition and stay of the 10-year enhancement must be stricken. We agree.
Appellant mistakenly refers to this as an enhancement under section 186.22, subdivision (b)(4).
Citing People v. Lopez (2005) 34 Cal.4th 1002, 1006-1008, appellant contends that he cannot be sentenced on his attempted murder counts to both the 10-year criminal street gang enhancement in section 186.22, subdivision (b)(1)(C) and the 15-year minimum parole eligibility term in section 186.22, subdivision (b)(5). While this argument is correct and would result in an unauthorized sentence, we agree with respondent (and appellant in his reply brief) that the error here is clerical. (§ 1207.)
Pronouncement of judgment must be done orally. (In re Bateman (1928) 94 Cal.App. 639, 640.) Here, the 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C) was not pronounced orally by the trial court, and the clerk’s minutes do not reflect what occurred at sentencing. The error was then carried over to the abstract of judgment as well. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, it is presumably the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471; see also People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
“The reason for requiring a minute entry of the judgment in a criminal case is to furnish a concise record showing the crime of which the defendant has been convicted and the punishment imposed, which will protect him against a subsequent prosecution for the same offense. [Citations.]” (People v. Blackman (1963) 223 Cal.App.2d 303, 307.) The clerk’s minutes must accurately reflect what occurred at the hearing, and the clerk cannot supplement the judgment the court pronounced by adding a provision to the minute order and the abstract of judgment. (See People v. Hartsell (1973) 34 Cal.App.3d 8, 13-14.)
The 10-year gang enhancements (§ 186.22, subd. (b)(1)(C)) attached to counts 1, 2, and 3 must be stricken from the November 9, 2010, minutes and the abstract of judgment as they do not reflect the judgment pronounced by the court. (See People v. Rowland (1988) 206 Cal.App.3d 119, 123-124 [restitution orders not pronounced by trial court struck from clerk’s minutes and abstract of judgment].)
5. Stayed Concurrent Terms
The trial court found section 654 applied to the aggravated assault convictions in counts 4, 5, and 6 as they were based on the same acts giving rise to the attempted murder convictions in counts 1, 2, and 3. Appellant contends that imposing concurrent terms for counts stayed pursuant to section 654 was unauthorized and should be corrected. We disagree.
Section 12 requires the trial court to determine and pronounce sentence on each count that results in a conviction. (In re Sandel (1966) 64 Cal.2d 412, 415.) Whenever a defendant is convicted of two or more crimes in the same or different proceedings, the terms of imprisonment on the second or subsequent judgments run concurrent to the first unless the court expressly imposes consecutive sentences. (§ 669; In re Patton (1964) 225 Cal.App.2d 83, 87.)
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed.” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) “A trial court must impose sentence on every count but stay execution as necessary to implement section 654. [¶] … [¶] [T]he correct procedure is to impose sentence on each count and stay execution of sentence as necessary.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1472.) A trial court imposes and stays execution of sentence as necessary to comply with section 654 “that way, if the unstayed sentence is reversed, a valid sentence remains extant.” (Alford, at p. 1469.)
Appellant relies on In re Wright (1967) 65 Cal.2d 650 for the proposition that “if … section 654 applies to a count, the sentence for that count must be stayed” and “[n]either a concurrent no[r] a consecutive term may be imposed for that count.” But the error in Wright was imposing a concurrent sentence in lieu of a section 654 stay. (Wright, at pp. 652-655.)
Here, the trial court followed the correct procedure. It chose count 3 as the base term. It then imposed sentences on counts 4 and 5 concurrent to the sentence imposed in count 3. It also imposed sentence on count 6, but did not state whether the sentence was to run concurrent or consecutive to count 3. It then stayed sentence in counts 4, 5, and 6 pursuant to section 654.
When a sentence has not been expressly pronounced either consecutive or concurrent, it is to be served concurrently with the primary prison term. (§ 669.)
We reject appellant’s claim of error.
DISPOSITION
The judgment is affirmed. The matter is remanded to the superior court to correct the court’s November 9, 2010, minutes and corresponding abstract of judgment to strike the 10-year enhancements imposed pursuant to section 186.22, subdivision (b)(1)(C) on counts 1, 2, and 3 and to forward certified copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: GOMES, Acting P.J., KANE, J.