Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. Affirmed in part, vacated in part, and remanded for further proceedings., Los Angeles County Super. Ct. No. NA048919.
Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Kim Aarons, Deputy Attorney General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Victor M. Aguilera appeals from the judgment entered following a jury trial that resulted in his convictions for two counts of assault with a firearm, mayhem, negligently discharging a firearm, battery, second degree burglary, second degree robbery, and dissuading a witness by force or threat. The trial court sentenced Aguilera to a total term of 64 years, 4 months in prison.
Aguilera contends the trial court: (1) prejudicially erred by admitting evidence of his prior conviction; and (2) made various sentencing errors. The People acknowledge that, although Aguilera was sentenced pursuant to the “Three Strikes” law, he did not have a trial on the alleged prior conviction allegation.
In an unpublished opinion, we originally ordered Aguilera’s sentence vacated and remanded the matter to the trial court for a determination of whether Aguilera had suffered a prior strike conviction. (People v. Aguilera (July 27, 2004, B156997 [nonpub. opn.].) We held that if Aguilera admitted or was found to have suffered a conviction of a serious or violent felony, the original sentence might be reimposed, with various modifications to correct sentencing errors made by the trial court and in the abstract of judgment.
We subsequently granted Aguilera’s petition for rehearing, brought on the ground that the trial court’s imposition of an upper term sentence and consecutive sentences violated his Sixth Amendment right to a jury trial as set forth in the then-recent decision in Blakely v. Washington (2004) 542 U.S. 296. We ordered the proceedings stayed pending our Supreme Court’s decisions in People v. Towne, S125677, and People v. Black, S126182.
We now conclude imposition of the upper term on count 3, and consecutive terms on counts 4 and 9, did not violate Blakely v. Washington, supra, 542 U.S. 296 or Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856]. We nonetheless vacate the sentence imposed by the trial court and remand for a determination of the truth of the prior conviction allegation, and for resentencing in accord with the principles articulated in Blakely and Cunningham and the opinions expressed herein. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules of appellate review, the evidence relevant to the issues on appeal established the following facts.
a. Soccer match shootings.
On December 8, 2000, Eliseo Betancourt was playing in a soccer match at a Los Angeles park. Fernando Agustin was watching the game. Members of the opposing teams became embroiled in an argument, and Betancourt told a player who had been ejected from the other team that, if he wished to fight, Betancourt would fight him off the field. The ejected player spoke to Aguilera and three other men. Aguilera chased Betancourt, shot Agustin three times in the legs, causing great bodily injury, and shot at the crowd.
b. Offenses against Benjamin Myles.
(i) Robbery, burglary, and assault.
At approximately 9:00 p.m. on December 9, 2000, Benjamin Myles was visiting his girlfriend, Yvonne Gonzalez, at an apartment complex. Myles and Gonzalez were in the laundry room when Aguilera and an unidentified “bigger guy” approached the laundry room’s locked screen door and stared at Myles and Gonzalez. Myles asked the men if they knew him, and, after a brief exchange, stated that the men must have mistaken him for someone else. The larger man stated, “No, actually, I don’t. This [is] East Side Torrance gang. . . . Open the door.” Myles and Gonzalez attempted to telephone police, but the larger man kicked in the laundry room door and hit Myles with his fists. Myles managed to escape from the laundry room and ran for Gonzalez’s apartment. Aguilera and the larger man exited the laundry room and walked through the apartment courtyard. The larger man was holding Myles’s backpack, which had been on the laundry room table. The larger man told Myles to “come and get” the backpack. Myles, who needed the backpack because it contained, among other things, his wallet, identification, paycheck, and keys, attempted to grab it. Aguilera and the larger man attacked Myles again, and the larger man pushed Myles into a window, shattering the glass.
(ii) Attempts to dissuade Myles from testifying.
When Myles was waiting to appear in court on an unrelated matter, he and Aguilera were placed in the same holding cell, along with other men. Aguilera wrote gang-related graffiti on the cell wall and told other gang members that there was a “snitch” in the cell. Aguilera also stated, “Once we get to court, we can get him.” Myles believed Aguilera was referring to him. When the group entered a bus to be transported to court, Aguilera made comments about “snitches,” including “snitches die.”
After his court appearance, Myles informed a deputy of the comments and was placed in a single-man cell on the bus for his protection. Aguilera spit on Myles as he passed him on the bus, and stated, “Fuck snitches.” Later, he told Myles, “Snitches die,” and “you’re going to get killed. Just watch what happens. I’m going to catch you slipping.” Aguilera also told Myles that he knew where Myles’s “lady and baby” slept at night. Myles saw Aguilera the day before Aguilera’s trial, and Aguilera asked whether Myles was ready to testify against him.
c. Gang evidence.
The People presented evidence sufficient to prove a Penal Code section 186.22, subdivision (b) gang enhancement, including, inter alia, that Aguilera was a member of the East Side Torrance gang.
As the facts regarding the gang enhancement are not directly relevant to the issues presented on appeal, we do not recite them here.
2. Procedure.
Trial was by jury. Aguilera was convicted of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), mayhem (§ 203), discharge of a firearm with gross negligence (§ 246.3), misdemeanor battery (§ 242), second degree burglary (§ 459), second degree robbery (§ 211), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). The jury further found true allegations that the assaults, mayhem, burglary, robbery, and dissuading a witness offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); that Aguilera personally inflicted great bodily injury on Agustin in commission of the assault alleged in count 2 and the mayhem offense (§ 12022.7, subd. (a)); that he personally used, and personally and intentionally discharged a firearm, proximately causing great bodily injury to Agustin (§§ 12022.53, subds. (b), (c), (d), 12022.5, former subd. (a)(1)); and that he personally used a firearm during commission of the assaults (§ 12022.5, former subd. (a)(1)).
All further undesignated statutory references are to the Penal Code.
The trial court sentenced Aguilera to a total prison term of 64 years, four months, pursuant to the Three Strikes law. It imposed a restitution fine and imposed and stayed a parole revocation fine. Aguilera appeals.
DISCUSSION
1. The trial court did not prejudicially err by admitting evidence about Aguilera’s prior conviction.
a. Additional facts.
During trial, Aguilera moved to introduce evidence, pursuant to Evidence Code section 1103, that Myles had a history of assaultive behavior. Aguilera’s counsel represented that Aguilera would testify and would rely upon a self-defense theory as to the laundry room incident.
Myles admitted, during direct examination, that he had been convicted of receiving stolen property in September 2001, and had pleaded guilty to assault with a deadly weapon in 1999.
During cross-examination of Myles, defense counsel asked Myles “who actually started this fight in the laundry room?” Counsel also queried whether Myles had asked Aguilera and the larger man “[D]o you know me” in a conversational tone or as a challenge. In response to defense counsel’s further questions, Aguilera admitted he had been in fights before, but not many.
Defense counsel also questioned Myles regarding the facts underlying his 1999 assault with a deadly weapon conviction, eliciting the following testimony. When another man was having an affair with Myles’s girlfriend, Myles had gone to the man’s workplace and assaulted him. Approximately two months later, Myles hit the man’s car with a baseball bat. Myles admitted telling police that the man had run over him with his car. Myles also admitted assaulting Myles’s pregnant girlfriend, but explained that it was “mutual combat.” He had seen a psychiatrist for anger management.
After Myles’s cross-examination, during the People’s case-in-chief, the People sought permission, pursuant to Evidence Code section 1103, subdivision (b), to introduce evidence of Aguilera’s prior conviction for discharging a firearm in a grossly negligent manner (§ 246.3). Aguilera objected, inter alia, that such evidence could be adduced only after the defendant testified, not in the People’s case-in-chief, and that the evidence was inadmissible under Evidence Code section 352. The People argued the statute did not contain such a requirement. The trial court allowed the evidence, reasoning that Evidence Code section 1103 did not contain a requirement that such testimony could be admitted only after a defendant takes the stand, and the probative value of the evidence was not outweighed by its potential for prejudice.
Subsequently, Sergio Miramontes and a police officer testified regarding a 1998 incident in which Aguilera had shot at Miramontes. Aguilera was standing with a group of men on a street corner when Miramontes dropped his girlfriend off at her nearby residence. When Miramontes drove past the corner again, Aguilera approached Miramontes’s car on a bicycle, pulled a gun, and fired three shots at Miramontes as he drove away. One of the bullets struck the area between the front windshield and side window. As a result, Aguilera was arrested and admitted firing the shots. Aguilera told police that Miramontes tried to hit him with his car. He asked Miramontes, “What’s up?” Miramontes “flipped him off” and Aguilera fired the shots to frighten Miramontes; he was not trying to hit him.
b. Discussion.
Aguilera contends the trial court committed reversible error by admitting evidence of his prior conviction. He asserts that the evidence was not properly admitted under Evidence Code section 1103 because: (1) it was presented during the People’s case-in-chief, rather than in their rebuttal case; and (2) he did not ultimately testify or rely upon a self-defense theory.
Absent specified exceptions, character evidence is generally inadmissible to prove conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) Evidence Code section 1103 creates such an exception, providing that evidence of a crime victim’s character is not inadmissible when offered by the defendant to prove the conduct of the victim in conformity with the character or trait of character. (Evid. Code, § 1103, subd. (a).) Evidence Code section 1103 further provides that “evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).” (Evid. Code, § 1103, subd. (b).) We review a trial court’s ruling on an evidentiary question for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955.)
Evidence Code section 1103, subdivision (a) provides, in pertinent part: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
We discern no error. Evidence Code section 1103 “allows the introduction of evidence of a defendant’s violent acts and reputation for violence, if a defendant presents evidence as to the bad acts or reputation of the victim of a crime . . . .” (People v. Blanco (1992) 10 Cal.App.4th 1167, 1169.) Such was the case here. Aguilera was allowed to introduce evidence of Myles’s prior violence. Accordingly, evidence of Aguilera’s character for violence was admissible under section 1103, subdivision (b). (People v. Blanco, supra, at pp. 1175-1176; People v. Clark (1982) 130 Cal.App.3d 371, 384, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92 [“Where a defendant has introduced character evidence to prove a victim’s conduct then the prosecution may introduce such evidence to rebut the evidence introduced by the defendant. [Citation.]”].)
Aguilera argues admission of the evidence was nonetheless improper for three reasons, none persuasive. First, he asserts that the evidence of his prior crime should have been excluded because he did not ultimately rely upon a self-defense theory. Evidence Code section 1103, subdivision (b), however, does not contain such a limitation. Aguilera is correct that in People v. Blanco, supra, 10 Cal.App.4th at page 1169, and People v. Walton (1996) 42 Cal.App.4th 1004, 1011, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3, the defense relied upon a self-defense theory. However, these cases do not stand for the proposition that Evidence Code section 1103 is inapplicable unless the defendant claims self-defense. In any event, Aguilera’s offer of proof, in seeking admission of the evidence of Myles’s prior violent conduct, was that he intended to rely upon a self-defense theory.
Second, Aguilera asserts that the trial court erred by allowing the People to present evidence of his prior offense in their case-in-chief, instead of their rebuttal case. We are unpersuaded. Evidence Code section 1103, subdivision (b), does not require that evidence of the defendant’s character for violence be offered in the People’s rebuttal case; it requires only that such evidence be offered “after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).” (Italics added.) The People complied with this requirement. Evidence of Aguilera’s prior crime was offered only after Aguilera brought out, during cross-examination, evidence of Myles’s prior violence.
Moreover, a trial court has discretion to regulate the order of proof, and we review a trial court’s decision in that regard for abuse of discretion. (Evid. Code, § 320; People v. Alvarez (1996) 14 Cal.4th 155, 207.) The trial court did not abuse its discretion in the instant case. In essence, Aguilera asserts that because he ultimately decided not to testify and abandoned his self-defense theory, evidence of the victim’s character for violence was irrelevant. But unless Aguilera’s change in theory made evidence of his prior crime inadmissible, it was immaterial whether the evidence was offered in the People’s rebuttal or case-in-chief. Given the admission of evidence of Myles’s prior violence under Evidence Code section 1103, based upon the defendant’s representation that he intended to rely on a self-defense theory, we do not believe Evidence Code section 1103 suddenly became inapplicable merely because the defense later decided to change theories. In other words, as the People argued, the defendant cannot have his cake and eat it too. Had Aguilera been unsure which theory he intended to pursue, he could have called Myles as a witness in the defense case and elicited evidence of Myles’s violence then, instead of raising the issue during cross-examination.
Third, Aguilera asserts the evidence should have been excluded under Evidence Code section 352, because its probative value was minimal and was outweighed by its prejudicial effect. Again, we disagree. “Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Waidla (2000) 22 Cal.4th 690, 724.) A determination under Evidence Code section 352 will not be overturned except upon a finding the trial court exercised its discretion “ ‘in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues, supra, at pp. 1124-1125.) Evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome (People v. Waidla, supra, at p. 724), and uniquely tends to evoke an emotional bias against the defendant without regard to relevance. (People v. Killebrew (2002) 103 Cal.App.4th 644, 650.)
Here, when the trial court made its ruling, evidence of Aguilera’s prior violence was highly probative to rebut the inference that Myles started the fight and Aguilera was merely defending himself. Indeed, even after Aguilera abandoned his self-defense theory, he argued during closing: “Myles, frankly, you can trust not at all. Mr. Myles is a violent individual. Mr. Myles – well, at least a random assault on a car with a baseball bat. But, of course, we all know his girlfriend was in the car with her then-new boyfriend and Mr. Myles assaulted – was trying to assault them and, in fact, pled guilty to the crime of assault with a deadly weapon for, the way he puts it, just hitting a car with a baseball bat. He claimed to the police he was the victim of assault just as he has done here. So who assaulted who?” (Italics added.) Given Aguilera’s reliance on Myles’s prior violence for the argument that Myles was the aggressor, implying Aguilera acted in self-defense, we cannot say that admission of evidence that Aguilera, too, had committed violence in the past was unduly prejudicial. It is apparent that the trial court weighed the probative value of the evidence, and understood and fulfilled its responsibilities under Evidence Code section 352. (People v. Williams (1997) 16 Cal.4th 153, 213.) We discern no error.
2. Prior conviction allegation.
The information alleged that Aguilera had suffered a prior conviction on June 24, 1999, in case No. NA037937, for violation of section 246 (shooting at an inhabited dwelling), a serious or violent felony (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)). Before the jury was instructed, Aguilera waived his right to a jury trial on the prior conviction allegation and opted for a bench trial. Although the trial court subsequently sentenced Aguilera, without objection, as if he had suffered one prior “strike” conviction, the record before us discloses no bench trial, no true finding on the prior conviction allegation, and no admission by Aguilera of the truth of the prior conviction allegation. The People assert, “It appears from the instant record that no true finding was made as to the prior strike conviction allegation; however, appellant was nevertheless sentenced under the Three Strikes Law. . . . The appropriate remedy is to remand the matter for a bifurcated proceeding on the prior conviction allegation assuming appellant requested a court trial on the issue.” Aguilera does not address this issue in either his opening or reply briefs. Aguilera was entitled to adjudication of the prior conviction allegation (§ 1025). We therefore vacate the sentence imposed by the trial court and remand the matter for resolution of the prior conviction allegation and resentencing.
3. Claimed sentencing errors.
Although we vacate the sentence and remand, we nonetheless address the sentencing issues raised by Aguilera for the trial court’s guidance on remand.
a. Imposition of an upper term sentence and consecutive sentences did not violate Aguilera’s Sixth Amendment right to a jury trial.
On count 3, mayhem committed against Agustin, the trial court sentenced Aguilera to the high term of eight years, doubled pursuant to the Three Strikes law. The trial court explained it was imposing the upper term “because there are multiple victims in this case and because there are counts for which the court is not going to sentence the defendant to any additional time, some because of [section] 654, some because I’m going to run one or more sentences concurrently. . . . I will choose the high base term . . . .” It added a term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), plus five years for the section 667, subdivision (a)(1) prior conviction enhancement, plus a 10-year term for the section 186.22, subdivision (b)(1) gang enhancement. The trial court further ordered consecutive sentences on court 4 (assault with a firearm on Betancourt) and count 9 (dissuading a witness by force or threat).
The reporter’s transcript reflects that the trial court imposed a section “12022.53(b)” enhancement. This appears to be a typographical error, in that the trial court imposed the 25-years-to-life enhancement mandated by section 12022.53, subdivision (d).
In his petition for rehearing, Aguilera argues that imposition of an upper term sentence and consecutive sentences violated his Sixth Amendment right to a jury trial (Blakely v. Washington, supra, 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466). After Aguilera filed his petition for rehearing, in Cunningham v. California, supra, 127 S.Ct. 856, the United States Supreme Court expressly considered application of the principles articulated in Blakely and Apprendi on California’s determinate sentencing scheme. We conclude the imposition of an upper term sentence on count 3 and consecutive sentences on counts 4 and 9 did not violate Aguilera’s Sixth Amendment rights.
As noted ante, we granted Aguilera’s petition for rehearing and stayed proceedings pending our Supreme Court’s decisions in People v. Towne, S125677, and People v. Black, S126182. Although People v. Towne is still pending before our Supreme Court, in light of Cunningham, resolution of Towne is not necessary to resolution of the issues presented in Aguilera’s petition for rehearing.
(i) Imposition of the upper term did not violate Aguilera’s jury trial right.
Aguilera contends that the imposition of an upper term sentence on count 3, mayhem, violated his Sixth Amendment right to a jury trial. Apprendi v. New Jersey, supra, 530 U.S. 466, held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490; People v. McGee (2006) 38 Cal.4th 682, 698-699.) In Cunningham, the Court held that California’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. at p. 871; People v. Black (2007) 41 Cal.4th 799, 805 (Black II); People v. Sandoval (2007) 41 Cal.4th 825, 831-832.)
Here, however, the jury found Aguilera committed crimes against multiple victims, i.e., both Agustin and Betancourt. Aguilera’s argument is foreclosed by People v. Calhoun (2007) 40 Cal.4th 398. In Calhoun, as here, the trial court imposed an upper term based on the fact the defendant was convicted of several crimes for which consecutive sentences could have been imposed, and there were separate victims of a violent crime. (Id. at p. 405.) Calhoun concluded imposition of the upper term did not violate Cunningham. (Id. at p. 406.) Calhoun reasoned that in Cunningham, “the high court held that California’s determinate sentencing law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. This case does not implicate Cunningham because in convicting [the defendant] of two counts of gross vehicular manslaughter, and two counts of reckless driving causing bodily injury, the jury necessarily found there were multiple victims.” (People v. Calhoun, supra, at p. 406.)
The same is true here. The jury found Aguilera guilty of one count of assault with a firearm on Betancourt and another count of assault with a firearm on Agustin, as well as mayhem against Agustin, all arising from the soccer field incident in which Aguilera shot at Agustin, Betancourt, and the crowd. Thus, as in Calhoun, the jury made the finding there were multiple victims, and there was no violation of Blakely or Cunningham. Contrary to Aguilera’s argument, the record does not reflect that the court imposed the upper term because the injuries inflicted on Agustin were permanent, or because Aguilera had “a gang attitude.” To the contrary, the trial court clearly stated the bases for its imposition of the upper term as set forth above.
(ii) Imposition of consecutive terms did not violate Aguilera’s jury trial right.
Aguilera further asserts that the imposition of consecutive terms on counts 4 and 9 violated his Sixth Amendment rights. The contention that the imposition of consecutive terms violates Blakely and Cunningham has recently been rejected by our Supreme Court. (Black II, supra, 41 Cal.4th at pp. 820-823.) Black II explained that Cunningham did not undermine the previous conclusion in People v. Black (2005) 35 Cal.4th 1238 (Black I), overruled in part by Cunningham v. California, supra, 127 S.Ct. 856, 868-871, vacated sub nom. Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36, 127 S.Ct. 1210], that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights. (Black II, supra, 41 Cal.4th at p. 821.) Blakely’s underlying rationale is inapplicable to the decision to impose consecutive or concurrent sentences. (Id. at p. 821.) Blakely “treats the crime together with a fact that is a prerequisite to eligibility for a greater punishment as the functional equivalent of a greater crime.” (Ibid.) In deciding whether to impose consecutive or concurrent terms, a trial court may consider aggravating and mitigating factors, but is not required to justify the imposition of consecutive terms by reference to an aggravating circumstance. (Id. at p. 822.) “The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[ ] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense; and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.]” (Black II, supra, 41 Cal.4that p. 823.) Accordingly, imposition of consecutive sentences did not violate Aguilera’s Sixth Amendment rights.
b. Imposition of a 10-year gang enhancement.
Aguilera asserts that imposition of the 10-year gang enhancement was error, in that the trial court should have imposed a 15-year minimum parole eligibility period, rather than a 10-year term. This issue has been decided adversely to Aguilera by People v. Montes (2003) 31 Cal.4th 350.
At the time of the offense against Agustin, section 186.22, subdivision (b)(1) provided for an additional sentence ranging from two to 10 years, depending upon the crime, when a defendant committed a felony for the benefit of a criminal street gang. (People v. Montes, supra, 31 Cal.4th at p. 354; People v. Hererra (2001) 88 Cal.App.4th 1353, 1358, fn. 2.) When the defendant is convicted “of a felony punishable by imprisonment in the state prison for life,” however, instead of the imposition of an additional sentence, he or she “shall not be paroled until a minimum of 15 calendar years have been served.” (§ 186.22, subd. (b)(5); People v. Montes, supra, at p. 354.) Aguilera argues that, because he was sentenced to 25-years-to-life on the firearm enhancement, subdivision (b)(5)’s minimum probation requirement applied, rather than an additional term under subdivision (b)(1).
Section 186.22 was amended by Proposition 21, effective March 8, 2000, to provide for a 10-year enhancement when the defendant was convicted of a violent felony, as defined by section 667.5, subdivision (b). (§ 186.22, former subd. (b)(1).) The statute at that time provided, “Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of . . . any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony . . ., be punished by an additional term of two, three, or four years at the court’s discretion, except that if the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years. If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.” (§ 186.22, former subd. (b)(1).)
In People v. Montes, supra, 31 Cal.4th 350, the California Supreme Court considered whether section 186.22, subdivision (b)(5) applies only when the defendant commits a felony that, by its own terms, provides for a life sentence, or whether it also applies when he or she commits a felony which, together with a section 12022.53, subdivision (d) enhancement, results in a life sentence. Montes concluded, “section 186.22(b)(5) applies only where the felony by its own terms provides for a life sentence.” (People v. Montes, supra, at p. 352.) Accordingly, because Aguilera was sentenced to a determinate term on the underlying felony of mayhem, the trial court properly imposed the additional 10-year term under section 186.22, subdivision (b)(1)(C).
c. Section 654 stay on count 2.
Aguilera asserts that sentence on count 2, assault with a firearm, must be stayed pursuant to section 654 because that offense was carried out with the same intent and objective as was the mayhem offense charged in count 3. The People agree, and point out that the trial court orally ordered the sentence on count 2 stayed pursuant to section 654, but the abstract of judgment erroneously fails to reflect this stay. Where an abstract of judgment differs from the sentencing court’s oral judgment, the abstract does not control. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) As we are remanding the matter for further proceedings, the error may be corrected by the trial court.
d. Modification of sentence on count 4.
On count 4, assault with a firearm against Betancourt (§ 245, subd. (a)(2)), the trial court sentenced Aguilera to a consecutive, subordinate term of two years, i.e., one-third of the middle term, doubled pursuant to the Three Strikes law. It further imposed a three-year, four-month firearm use enhancement (§ 12022.5, subds. (a)(1), (d)). At the time of sentencing, section 12022.5, subdivision (a)(1) provided for an enhancement of 3, 4, or 10 years. Here, the trial court selected the 10-year term on the enhancement, not the midterm as Aguilera suggests. However, as the People concede, the trial court made an addition error when calculating the correct sum, which should have totaled five years, four months, rather than seven years as stated. Accordingly, should the existing sentence be reimposed on remand after a true finding on the prior conviction allegation, the abstract of judgment must be modified accordingly. (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
Aguilera does not argue that imposition of the upper term on the enhancement violated Blakely, and we do not address the issue here. The sentence ultimately imposed by the trial court must, of course, comport with the principles set forth in Blakely and Cunningham.
DISPOSITION
The sentence imposed by the trial court is vacated. The matter is remanded for a bench trial or further proceedings on the question of whether Aguilera suffered a prior conviction in case No. NA037937 and for resentencing, consistent with the opinions expressed herein. In all other respects, the judgment is affirmed.
We concur: CROSKEY, ACTING P. J., KITCHING, J.