Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF025065, Frederick A. Mandabach, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified with directions.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
When the victims — Linda Andrade and her adult daughter, Yvonne Torres — got home, defendant Ruben Andrew Neer was already inside. He held a knife to the daughter’s throat, demanded the keys to the mother’s van, and made both women go into a closet. He rummaged around and stole several other items before leaving in the van.
A jury found defendant guilty as follows:
Count 1: Carjacking (Pen. Code, § 215, subd. (a));
Count 2: Robbery (Pen. Code, § 211);
Count 3: Making a criminal threat (Pen. Code, § 422) to Torres;
Count 4: Making a criminal threat to Andrade;
Count 5: False imprisonment (Pen. Code, § 236) of Torres;
Count 6: False imprisonment of Andrade;
Count 7: First degree burglary (Pen. Code, §§ 459, 460, subd. (a)); and
Count 8: Unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)).
On counts 1 through 6, personal deadly weapon use enhancements (Pen. Code, § 12022, subd. (b)(1), (2)) were found true.
Two prior serious felony conviction enhancements (Pen. Code, § 667, subd. (a)), two 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), and three “strike” priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) were also found true.
Defendant was sentenced to a total of 90 years to life in prison.
Defendant contends that the trial court erred by failing to give a unanimity instruction with respect to the false imprisonment and burglary counts. We disagree.
Defendant also asserts various sentencing errors. The People concede that the trial court erred by imposing two-year terms, rather than one-year terms, on the personal deadly weapon use enhancements to counts 2 through 6. We agree. Accordingly, we will modify the judgment. Otherwise, we find no error.
Finally, defendant asserts that there are several clerical errors in the abstract of judgment. The People concede that these are errors and that they should be corrected. We will direct the superior court clerk to correct them.
I
FACTUAL BACKGROUND
A. The Victims’ Testimony at Trial.
At trial, both victims gave substantially the same account of the crimes, except as noted below.
Linda Andrade and her adult daughter, Yvonne Torres, lived in a mobile home in San Jacinto. Defendant and his mother lived next door. Defendant got into an argument with his mother, so the two women let him stay with them for a while. During this time, defendant and the daughter had sex once. Recently, however, her mother had “kicked him out.”
According to the daughter, defendant stayed with them for about a month. Approximately one day before the date of the crimes, the mother told him to leave, because she suspected that he was using drugs.
On January 12, 2008, while at work, the daughter talked to defendant on the telephone. She told him to wait in the mobile home and to apologize to the mother in hopes that she would give him another chance. Defendant, however, told her that he “wasn’t gonna be there.” On previous occasions, she had lent him her key. She did not remember whether he had her key that day.
Sometime in the morning, the mother left the mobile home. When she left, she locked the door. She picked the daughter up from work; they got back home a little before 4:00 p.m. The mother parked her van — a Ford Aerostar — in the driveway.
The mother was in the process of buying the van, which was still registered to the seller. It was stipulated that the mother was “the only person who had permission to operate or drive” the van.
The mother went into the kitchen; the daughter went into her bedroom. The door slammed behind her, and defendant put a knife to the daughter’s throat. He said, “Don’t move; don’t scream; if you scream, I’m gonna kill you.” He put one hand around her mouth and held the knife at her throat with the other. He pushed her into the hallway, then into the kitchen.
Meanwhile, the mother noticed some rope or twine on the kitchen counter. At that moment, she looked up and saw defendant, with one hand over the daughter’s mouth and the other hand, holding a knife, around her waist. Defendant demanded the keys to the van. The mother gave them to him.
Defendant ordered the women to go to the master bedroom and go inside the closet. He said, “If you guys struggle, it’s gonna be worse.” They complied.
The daughter testified that, while they were still in the kitchen, defendant took the mother’s purse; the mother “struggl[ed]” to take it back, but without success. When the whole incident was over, the purse was missing. The mother testified, however, that defendant demanded her purse, but she thwarted him by taking it into the closet with her.
The two women stayed in the closet for 15 or 30 minutes. They could hear defendant moving around in the bedroom and in the kitchen. At one point, defendant tried to open the closet, but the women had braced the door shut. According to the daughter, she (or her mother) yelled, “We called the police.” The mother denied saying this. Also, according to the daughter, defendant asked again where the car keys were; she did not answer.
When the women no longer heard anything, they came out. The van was gone. The mother called 911.
B. The Physical Evidence.
After defendant left, some jewelry, some suitcases, a radio, and some other items were missing. There were no signs of forced entry. However, the window screen in the daughter’s bedroom was open. That window did not lock; defendant might have known this, as he had fixed the shutters on the windows.
About a month later, the van was found a few miles away; it had reportedly been parked there for a week. The other missing items were never recovered.
C. The Victims’ Statements to the Police.
The victims’ statements to the police differed in several respects from their trial testimony. They did not say that defendant and the daughter came into the kitchen at all, nor that there was any struggle over the purse.
Rather, the daughter told the police that defendant made her go directly from her bedroom to the closet in the master bedroom. He went away, then came back with the mother and put her in the closet, as well.
The mother told police that she looked down the hallway and saw defendant; he was holding a knife and putting the daughter in the closet. When she walked toward them, defendant told her to get in the closet, too.
Both women said that, while they were in the closet, defendant asked for the car keys. According to the daughter, she told him they were on the dresser.
II
UNANIMITY INSTRUCTION
Defendant contends that the trial court erred by failing to give a unanimity instruction with respect to the false imprisonment and burglary counts.
A. Additional Factual and Procedural Background.
The prosecutor requested a unanimity instruction. (CALCRIM No. 3500.) At an instructions conference, both sides agreed that the instruction should be given.
The prosecutor advised the court that the instruction applied to counts 3, 4, 5, 6, and 7: “[T]he jury heard multiple acts that qualify for 422s against both separate victims. They heard multiple acts that qualify for false imprisonments taking place. And they heard multiple acts of first-degree burglaries occurring in the home.” The trial court agreed, “Then I’ll give it as to 3, 4, 5, 6 and 7.” Nevertheless, when the trial court actually gave the unanimity instruction, it expressly applied only to counts 3 and 4 (criminal threats).
The instruction, as given, stated: “The defendant is charged with threats to commit crime resulting in death or great bodily injury in Counts 3 and 4. The People have presented evidence of more than one act [t]o prove that the defendant committed this offense[. Y]ou must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.” (Italics added.)
B. General Legal Principles.
“A criminal defendant is entitled to a verdict in which all 12 jurors concur as a matter of due process under the state and federal Constitutions. [Citation.]” (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1588 [Fourth Dist., Div. Two].)
“A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 422-423.) “[T]he jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.]” (Ibid.)
C. Application to the Burglary Charge.
Defendant was charged in count 7 with burglary. A burglary can be committed by entering either a “house” or a “room” “with intent to commit... larceny or any felony....” (Pen. Code, § 459.) Defendant admits that there was evidence that he entered the mobile home through the window, with the intent to commit a felony. He argues that alternatively, however, there was evidence that he entered through the front door, with the intent to commit a felony. Finally, he argues that there was evidence that he entered through the front door, with the daughter’s permission, and with the intent merely to talk to the mother; thereafter, however, he formed the intent to commit a felony, and thus he committed the burglary by entering rooms inside the mobile home.
People v. Taylor (2010) 48 Cal.4th 574 is on point. There, the jury found the defendant guilty of, among other things, burglary. (Id. at p. 585.) There was evidence that he committed burglary when he entered the victim’s house. (Id. at p. 627.) Alternatively, there was evidence that he committed burglary when he entered a bedroom in the house with the intent to commit sexual assaults. (Id. at pp. 586-587, 589, 627.)
The Supreme Court held that no unanimity instruction was required: “It is true that burglary may be committed not only by an entry into a home with the requisite felonious intent, but also by an entry (with the requisite felonious intent) from within the home into a bedroom inside the home. [Citation.] However, this is not to say the evidence in this case showed the commission of two discrete burglaries requiring a unanimity instruction. Rather, the evidence and argument on alternative ‘entries’ bore on the issue of when defendant’s felonious intent arose — whether before entry into the home and/or before entry into the back bedroom — and thus concerned the theory of his liability for a singular burglary. ‘[T]he evidence merely present[ed] the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime.’ [Citation.] Under these circumstances, juror unanimity was unnecessary. [Citation.]” (People v. Taylor, supra, 48 Cal.4th at pp. 627-628.)
Here, identically, the assertedly disputed factual issue was whether defendant formed the intent to commit the crimes before or after he entered the mobile home. Regardless of how the jury resolved this issue, the evidence showed one, and only one, burglary.
Defendant argues that Taylor is distinguishable because here, there was evidence that he entered more than one room with the necessary intent — i.e., that he went from the daughter’s bedroom, to the kitchen, and then to the master bedroom. He cites no authority, however, for the proposition that each of these entries could constitute a separate burglary. The law is to the contrary: “[T]he burglary of different unlocked rooms in a single-family residence constitute[s] a single burglary.” (People v. Richardson (2004) 117 Cal.App.4th 570, 575.)
Defendant relies on the prosecutor’s concession that the trial court should give a unanimity instruction with respect to burglary. The prosecutor, however, was wrong. His concession is not binding on us. (Desny v. Wilder (1956) 46 Cal.2d 715, 729 [“[t]his court... is not bound to accept concessions of parties as establishing the law applicable to a case”].)
In connection with the prosecutor’s concession, defendant cites cases holding that an appellant cannot argue that an instruction that was given was erroneous when he or she acquiesced in the instruction below. (E.g., People v. Medina (1995) 11 Cal.4th 694, 763.) These cases, however, involve the invited error doctrine. Here, the question is not whether the prosecutor invited the error, but whether there was error at all. Moreover, despite the prosecutor’s concession, in the end, the trial court did not give a unanimity instruction.
We conclude that the trial court did not err by failing to give a unanimity instruction with respect to the charged burglary.
D. Application to the False Imprisonment Charges.
“‘[T]he essential element of false imprisonment is restraint of the person. Any exercise of express or implied force which compels another person to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment. [Citation.]’ [Citation.]” (People v. Dominguez (2010) 180 Cal.App.4th 1351, 1360.) “False imprisonment does not require ‘confinement in some type of enclosed space.’ [Citation.]” (Id. at p. 1357.) “False imprisonment is a felony if ‘effected by violence, menace, fraud, or deceit....’ [Citations.]” (Id. at pp. 1356-1357.)
Count 5 charged false imprisonment of the daughter; count 6 charged false imprisonment of the mother.
The evidence showed only one discrete instance of false imprisonment of the daughter. Defendant argues that, according to the testimony at trial, she was made to go from the bedroom, to the kitchen, and then to the closet; however, according to the victims’ statements to the police, she was made to go directly from her bedroom to the closet. In either scenario, however, defendant restrained the daughter continuously; she remained under his forcible control without any interruption. There were no acts that could have been charged as separate false imprisonments of the daughter.
Likewise, the evidence showed only one discrete instance of false imprisonment of the mother. Again, defendant argues that, according to the testimony at trial, the mother was initially restrained in the kitchen; according to the statements to the police, however, she was initially restrained in the bedroom. Nevertheless, there was only a single, continuous restraint, and thus a single discrete crime of felony false imprisonment.
We conclude that the trial court did not err by failing to give a unanimity instruction with respect to false imprisonment.
III
SENTENCING ERRORS
A. The Selection of the Upper Term for the Carjacking.
Defendant contends that the trial court erred by sentencing him to 27 years (triple the upper term) to life for carjacking, because the record shows that it did not realize that it had discretion to impose a lower sentence.
1. Additional factual and procedural background.
At the outset of sentencing, the trial court found six aggravating factors and no mitigating factors, although it admitted being “troubled” by defendant’s “age... and what he’s facing.”
On count 1 (carjacking), the principal term, the trial court sentenced defendant to an indeterminate term, with a minimum parole period of 27 years (triple the upper term). It cited Penal Code section 667, subdivision (e)(2)(A).
On the deadly weapon use enhancement to count 1, however, it imposed the midterm (two years). (Pen. Code, § 12022, subd. (b)(2).) The prosecutor questioned this, arguing that the trial court had already found “that the aggravating factors... outweigh those in mitigation.” The trial court responded, “That is the finding of the Court. However, I did intend to select the midterm.”
2. Analysis.
Under Penal Code section 667, subdivision (e)(2)(A), a “third-striker” must be sentenced to life in prison, with a minimum parole period fixed as “the greater of:
“(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.
“(ii) Imprisonment in the state prison for 25 years.
“(iii) The term determined by the court pursuant to [Penal Code] Section 1170 for the underlying conviction, including any enhancement....”
In sentencing under the first of these options, the trial court may exercise its usual sentencing discretion to select either the upper, middle, or lower term before tripling it. (People v. Keelen (1998) 62 Cal.App.4th 813, 815, 820.)
The lower, middle, and upper terms for carjacking are three, five, and nine years, respectively. (Pen. Code, § 215, subd. (b).) Thus, here, if the trial court selected the upper term (nine years), the first option (27 years to life) would be greater than the second option (25 years to life), so it would have to impose 27 years to life. If, however, it selected the midterm (five years), the first option (15 years to life) would be less than the second option (25 years to life), so it would have to impose 25 years to life.
Defendant claims that the record shows that the trial court intended to select the midterm; thus, it must have erroneously believed that it lacked the discretion to do so. The People dispute defendant’s reading of the record. They argue that the trial court merely intended to select the midterm for the enhancement, not for the underlying carjacking. Nevertheless, they concede that “since the record is unclear on this issue, the matter should be remanded.”
We reject the People’s concession. In our view, the record is not unclear at all. “[A] trial court is presumed to have applied the law correctly in the absence of a clear indication to the contrary....” (People v. Fuhrman (1997) 16 Cal.4th 930, 944.) The trial court expressly selected the upper term for the carjacking, stating, “That’s three times nine.” It then expressly sentenced defendant to the midterm on the enhancement only. It had discretion to do so. (See People v. Myers (1983) 148 Cal.App.3d 699, 704 [Fourth Dist. Div. Two] [even where aggravating factors outweigh mitigating factors, trial court has discretion to select midterm].) On this record, we see no indication that the trial court mistakenly believed that it had to select the upper term for the carjacking.
B. Section 654.
Defendant contends that the trial court imposed multiple punishment, in violation of Penal Code section 654 (section 654), by imposing separate and unstayed sentences, not only for carjacking (count 1), but also for making a criminal threat against Torres (count 3) and burglary (count 7).
1. Additional factual and procedural background.
In a sentencing memorandum, the prosecutor conceded that, in light of the conviction on count 1 (carjacking), the sentences on counts 2 (robbery), 6 (false imprisonment of Andrade), and 8 (unlawful taking or driving of a vehicle) should be stayed pursuant to section 654. He argued, however, that the sentences on counts 3 (criminal threat against Torres), 4 (criminal threat against Andrade), 5 (false imprisonment of Torres), and 7 (burglary) should not be stayed.
At sentencing, the trial court addressed the section 654 issue extensively. It asked both counsel, “[W]here does 654 apply? That’s the big question in this case.” The prosecutor reiterated the position he had taken in his sentencing memo. Defense counsel argued that the sentences on counts 2, 3, 4, 5, 6, 7, and 8 should be stayed.
The trial court agreed that it should stay the sentences on counts 2 and 8. However, it then stated:
“The Court finds that... Count 7, the burglary, began the series of events. They took place in a relatively small space. The events occupied a relatively short period of time once the victim stumbled upon the burglary. There is no way to know the time elapsed from the time the defendant formed his intent to burgle the home until the victims returned to find the burglary under way.
“The taking of the vehicle does not appear to be part of the objective, because the vehicle was clearly not in the carport when the crime began, and arrived only after the defendant is in the home, burglarizing the residence.
“The events portray a crime that took a turn for the worse. It went from a residential burglary with no one home to a burglary with homeowners present, and an escalation of violence that had two victims.
“This Court finds that Count 7 does not come within the objective and intent of the remaining Counts....
“As to Counts 3 through 6, the two events of 422... ha[d] two separate victims. The Count 5 and 6, which was Penal Code section 236, false imprisonment, seemed like all one big part. However, as to threatening one victim first in the room, and then coming out and threatening the other victim, it appears that these are two separate and distinct acts that are not part of the same intention and objective.... [¶]... [¶]
“... The court finds that [Count 3 i]s separate and does not come within 654....
“... [T]he remaining Counts should be stayed pursuant to section 654 because they come within the common objective and intent.”
Accordingly, the trial court stayed the sentences on counts 2, 4, 5, 6, and 8, but not on counts 3 (criminal threat against Torres) and 7 (burglary).
2. Analysis.
a. General legal background.
Section 654, subdivision (a), as relevant here, provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor....’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘multiple criminal objectives, ’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“‘“A trial court’s... finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” [Citation.]’ [Citation.]” (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310 [Fourth Dist., Div. Two].)
b. Application to count 3 (criminal threat against Torres).
Defendant argues that the criminal threats against both victims were part of the force or fear that was a necessary element of the carjacking. He also argues that the trial court acted inconsistently by staying count 4 (criminal threat against Andrade), but not count 3 (criminal threat against Torres).
The multiple victim exception to section 654 applied to count 3. This exception “allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective. [Citation.]” (People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631.) Carjacking is a violent crime for purposes of the multiple victim exception, particularly when, as here, it is accompanied by a personal deadly weapon use enhancement. (See People v. Centers (1999) 73 Cal.App.4th 84, 99-100 [Fourth Dist., Div. Two].)
Defendant argues that both the mother and the daughter were victims of the carjacking. Not so. A carjacking is defined as “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (Pen. Code, § 215, subd. (a), italics added.) Thus, even when a single vehicle is taken, there are as many carjackings as there are persons in possession of the vehicle. (See People v. Hill (2000) 23 Cal.4th 853, 856, 858-861 [defendant was properly convicted on two counts of carjacking based on the taking of a single vehicle, not only from mother, but also from infant].) Here, defendant was convicted of only one carjacking. There could be only a single victim of that carjacking. Moreover, it seems reasonable that that victim was Andrade. It was stipulated that she was “the only person who had permission to operate or drive” the van. She had just been driving it, and the keys were either in her purse or in her constructive possession on the dresser.
Making a criminal threat is also a violent crime for purposes of the multiple victim exception. (People v. Solis (2001) 90 Cal.App.4th 1002, 1023-1024.) Thus, the trial court properly stayed the sentence on count 4 (criminal threat against Andrade), because Andrade was the victim of the carjacking, but not on count 3 (criminal threat against Torres), which was an additional violent crime against an additional victim.
c. Application to count 7 (burglary).
The trial court found that defendant had separate intents and objectives in connection with the carjacking (count 1) and the burglary (count 7). It reasoned that he entered the mobile home even before the van arrived. It concluded that he committed the burglary with the intent to steal other items in the residence and only belatedly formed the intent to steal the van, as well. (See People v. Mixon (1990) 225 Cal.App.3d 1471, 1487 [defendant could be sentenced for both burglary and sexual offenses where there was evidence that he entered residence with intent to steal, then formed intent to commit sexual offenses].) This was a reasonable inference supported by substantial evidence.
Defendant argues that the jury could have found that, when he entered the mobile home, he did not intend to commit any crime at all; thus, he did not commit burglary until he formed the intent to take the van, and hence until he entered some room inside the mobile home. Under the applicable standard of review, however, the question is whether the trial court’s findings are supported by substantial evidence, not whether there is substantial evidence to support some other scenario.
The record does not demonstrate that the jury actually found that defendant did not have the necessary intent until after he entered the mobile home. Thus, we need not decide whether the trial court would be bound by such a finding.
We therefore conclude that the trial court did not violate section 654.
C. Prior Serious Felony Conviction Enhancements.
Defendant contends that there was insufficient evidence that the two prior convictions that were alleged as five-year prior serious felony conviction enhancements were brought and tried separately.
The evidence showed that:
1. On September 23, 1999, in Riverside Superior Court case No. PEF003277, defendant pleaded guilty to one count of first degree burglary.
2. On March 21, 2000, in Riverside Superior Court case No. PEF003699, defendant pleaded guilty to two counts of first degree burglary.
3. On May 5, 2000, defendant was sentenced in both cases. The same judge imposed both sentences; the People and defendant each had the same counsel. However, there was a separate abstract of judgment for each case. The sentence in case No. PEF003277 was run concurrently with the sentence in case No. PEF003699.
“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review 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 find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
Penal Code section 667, subdivision (a)(1) prescribes a five-year enhancement “for each prior [serious felony] conviction on charges brought and tried separately.” This means that “‘... the underlying proceedings must have been formally distinct, from filing to adjudication of guilt.’” (People v. Wiley (1995) 9 Cal.4th 580, 585.) “Separate charging documents are required, but guilty pleas and sentences do not have to be entered and imposed in separate proceedings. [Citations.]” (Davis v. Woodford (9th Cir. 2006) 446 F.3d 957, 961; see also People v. Gonzales (1990) 220 Cal.App.3d 134, 139-141.)
Here, it is clear that there were separate charging documents, because there were two separate case numbers. Defendant entered separate guilty pleas on separate dates. Finally, there is evidence that the two cases were never consolidated, because there were two separate abstracts of judgment. Contemporaneous sentencing “is not evidence of a motion or grant of consolidation. Rather, it is a product of the practical realities of an overburdened criminal court system.” (People v. Gonzales, supra, 220 Cal.App.3d at p. 140.)
In his reply brief, defendant argues that the fact that there were two separate informations does not establish that there were two separate complaints. (See In re Harris (1989) 49 Cal.3d 131, 134 [prior convictions arising from a single complaint but separate informations were not separately brought and tried].) The Supreme Court, however, has held that when “the separate informations from which the alleged prior convictions arose bear case numbers that differ significantly..., the trial court reasonably could infer that the charges had been initiated in separate complaints. Had the charges been filed in a single complaint, followed by a single preliminary hearing, but thereafter been prosecuted in superior court under separate informations..., we would expect those informations to bear case numbers that are successive, or nearly so. [Citation.] The circumstance that the informations... bear case numbers that differ significantly is sufficient, in the absence of contrary evidence, to support a reasonable inference that the charges were filed in separate complaints and, therefore, were separately brought within the meaning of [Penal Code] section 667[, subdivision] (a)(1).” (People v. Wiley, supra, 9 Cal.4th at p. 593, fn. omitted.) Here, as in Wiley, the informations had significantly different case numbers — PEF003277 and PEF003699. Thus, it is not just reasonably inferable but most likely that there were two separate complaints.
We therefore conclude that the two prior serious felony conviction enhancements are supported by substantial evidence.
D. Personal Deadly Weapon Use Enhancements.
Defendant contends that the trial court imposed unauthorized sentences on the personal deadly weapon use enhancements to counts 2 through 6.
In connection with counts 2 through 6, enhancements for the personal use of a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)) were charged, proved, and found true. The prescribed penalty is one year. (Ibid.) Nevertheless, the trial court imposed two-year terms for each of these enhancements.
The People concede the error. We agree. We will modify the judgment accordingly.
IV
DISPOSITION
The judgment is modified so as to provide for one-year terms, rather than two-year terms, on the personal deadly weapon use enhancements on counts 2 through 6. (See part III.D, ante.) The judgment as thus modified is affirmed.
Defendant has also asked us to correct the following errors in the abstract of judgment:
1. The abstract mistakenly reflects that defendant was found guilty by the trial court, rather than by a jury.
2. The abstract mistakenly reflects that defendant was sentenced pursuant to Penal Code section 667.61 (the one-strike law, applicable to certain sexual offenses).
3. The abstract mistakenly fails to reflect the fact that the sentences on counts 2, 4, 5, and 6 were stayed.
4. The abstract mistakenly fails to reflect the fact that the sentence on the personal deadly weapon use enhancement to count 3 was stayed.
The People concede these errors. Again, we agree.
The superior court clerk is directed to prepare a new sentencing minute order and a new abstract of judgment, reflecting the modification of the judgment and correcting these four errors. The superior court clerk is further directed to forward a certified copy of the new abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)
We concur: HOLLENHORST, Acting P.J., CODRINGTON, J.
According to the mother, however, defendant stayed with them for about a week. About a week before the crimes, she told him to leave, because she was not allowed to have an unrelated person under 55 living with her.