Opinion
A129723
03-14-2012
THE PEOPLE, Plaintiff and Respondent, v. KELVIN MENJERYL ALLEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR271029)
Defendant Kelvin Menjeryl Allen was convicted of several charges and related enhancements after he shot and seriously injured his girlfriend, Mickey Kentra. The trial court sentenced defendant to 19 years in prison. On appeal, defendant contends the court erred by: (1) admitting evidence of his prior acts of domestic violence against Kentra, (2) failing to stay one of the enhancements under Penal Code section 654, and (3) imposing upper-term sentences on the enhancements.
All statutory references are to the Penal Code unless otherwise stated. All references to statutes defining criminal offenses or setting out punishments or enhancements refer to the versions of those statutes in effect on October 15, 2009, the date of the charged crimes.
We reject defendant's arguments. However, we modify the judgment to correct the implementation of section 654 as to some of the charges against defendant, and to correct one other discrepancy in the sentence. We affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges Against Defendant
An information charged defendant with: (1) attempted deliberate, premeditated murder (§§ 187, subd. (a), 664; count one); (2) inflicting corporal injury on a cohabitant (§ 273.5, subd. (a); count two); (3) assault with a firearm (§ 245, subd. (a)(2); count three); and (4) mayhem (§ 203; count four). As to all counts, the information alleged defendant personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
B. The Evidence Presented at Trial
Kentra and defendant began dating a few years before the October 15, 2009, shooting. They began living together at defendant's mother's house, where they stayed for about a year and a half. In January 2009, Kentra moved into a two-bedroom apartment at 1513 Alamo Drive in Vacaville. A few months later, defendant moved into the apartment with Kentra's permission. Kentra and defendant shared a bedroom and slept in the same bed. From January to October 2009, Kentra worked at a gas station and paid the bills.
A few months prior to October 2009, defendant acquired a shotgun, which he kept by his side of the bed. He kept shotgun shells in the bedroom and in their car. He sometimes kept the gun loaded. He had a lock for the gun, but rarely if ever used it. When defendant walked his dog, which he did most days, he took the shotgun with him. Defendant generally took the shotgun with him when he left the apartment.
Kentra and defendant had a turbulent relationship, and defendant frequently accused Kentra of having sexual relations with men she met at work. Defendant drove Kentra to and from work. Defendant sometimes sat in the car and watched Kentra work, and he became jealous because of her interactions with male customers. Toward the end of their relationship, Kentra told defendant (about once or twice per month) that she wanted to leave him and did not want to be with him anymore. About four to six times prior to October 15, 2009, defendant threatened to kill Kentra.
Defendant and Kentra had physical altercations during which he punched and kicked her. In December 2007, while they were living with defendant's mother, defendant kicked Kentra's arm and broke it. Kentra did not report the incident to the police. When she went to the hospital for treatment, she told the staff she fell down the stairs, because she did not want to get defendant in trouble. On a different occasion at defendant's mother's house, defendant shot Kentra with a pellet gun. Once when Kentra returned from work, defendant accused her of cheating on him and hit her. When Kentra fell down, defendant kicked her. Although she had "a bunch of bruises," Kentra did not call the police or tell anyone about the incident because she was afraid.
Joleen Moore testified that, in May 2009, she was outside her second-floor apartment at 1513 Alamo Drive when she heard defendant and Kentra arguing in front of their apartment. Defendant attempted to get Kentra to come into the apartment by pulling her hair. He then struck Kentra in the face with his open hand. Moore yelled that she was going to call the police, and defendant began walking toward her. Moore went into her apartment.
Monique Claxton and her eight-year-old son lived in the spare bedroom in Kentra's apartment for a few months beginning approximately in August 2009. Claxton frequently heard Kentra and defendant arguing. One morning Claxton, who was in her bedroom with the door shut, heard arguing and then the sound of someone punching another person. Claxton came out of her bedroom and saw Kentra sitting on the couch and defendant standing over her, punching her head and face with his fists. Kentra was holding her hands above her head and face, attempting to block defendant's punches. Defendant punched Kentra at least five to seven times.
As to this incident, Kentra testified she called defendant a derogatory name, and he began punching her. Defendant said " 'Bitch, don't do that to me. Don't call me names. I don't call out to you names. Don't ever do it again because I'll beat your ass.' " When Claxton came out of her room and told defendant to stop, he did so. Claxton called the police. When the police arrived, Kentra told them she and defendant had been arguing but did not mention the physical abuse, because she did not want defendant to get into trouble. Claxton and her son moved out prior to October 15, 2009.
On October 15, 2009, Kentra and defendant went to a swap meet in Concord so defendant could sell some items. Defendant left his shotgun on the bed. On the drive back to Vacaville, defendant and Kentra argued. When they arrived at the apartment, defendant told Kentra not to say anything and to go inside. Kentra sat down on the couch and they continued arguing. Kentra told defendant to leave. He responded by saying, " 'Bitch, I will kill you,' " or " 'I'm going to kill you, bitch.' " He walked into the bedroom.
Kentra was afraid because defendant had previously threatened to kill her, and because of the tone of his voice and the look in his eyes. Kentra thought about running out the front door but did not do so, because defendant had locked the door when they arrived. Defendant always locked the door with four separate locks when they went into the apartment.
Kentra heard a clicking noise she recognized as the sound of defendant putting shells into the shotgun. Defendant came out of the bedroom holding his shotgun. He had been in the bedroom for a few seconds. Defendant raised the shotgun to his shoulder and pointed it at Kentra. He said, " 'Bitch, I'm going to kill you.' " Kentra responded, " 'Go ahead. It's better than living here with you.' "
As Kentra raised her left arm to cover her head, defendant shot her. Kentra testified she saw "this piece fly out of my arm," and saw "all the tendons hanging." She passed out and did not regain consciousness until she woke up in the hospital. Kentra did not threaten defendant before he shot her, and she did not throw anything at him or kick or hit him.
Kentra spent nine days in the hospital, including four in intensive care. She sustained shotgun pellet wounds to her left arm, chest, face and neck. Nerve damage in her mouth required the extraction of her back teeth. She had scarring on her face, neck and chest. Shotgun pellets were lodged in and around her heart. One pellet blocked a blood vessel and caused her to suffer a "small heart attack." Doctors did not attempt to remove the pellets from Kentra's heart because doing so could have caused greater damage. A pellet lodged in Kentra's esophagus.
Kentra sustained severe injuries to her left arm, including extensive loss of skin and muscle tissue and damage to her arteries and nerves. Doctors performed several major surgeries, including removing a vein from her calf and transplanting it to her forearm. They also did a "tendon transfer reconstruction." The damage to Kentra's hand and arm is permanent. She cannot fully open her hand and has only a "rudimentary grasp" without fine motor control or sensation. She is missing part of her arm.
Christine Robinson, who lived in the apartment next to Kentra's, heard defendant yelling at Kentra. Robinson heard defendant scream at Kentra that he hated her and wished she was dead. Robinson heard a gunshot. She then heard defendant scream, " 'Oh, no. Oh, no.' " Robinson called 911.
Defendant also called 911, less than a minute after Robinson did so, and reported he had shot his girlfriend. Police arrived and detained defendant outside the apartment. Defendant was distressed and crying, and had blood on his arms and shirt. He initially was cooperative, but later became "extremely agitated," and it took five officers to subdue him. Defendant said, " 'She's in there. Go help her.' " He said he was stupid to have pointed the gun at Kentra, and said, " 'I can't believe it.' "
Officers found Kentra lying on the floor. She had shotgun pellet wounds to her arm, chest, neck and face. There was a large amount of blood on Kentra and on the floor.
Defendant's shotgun was on the floor next to Kentra. The gun contained one expended round and five live rounds. It was a "standard pump shotgun" that functioned properly and did not fire when jarred or jolted.
After being transported to the police station, defendant waived his Miranda rights and spoke to police. Defendant said he and Kentra had been in a dating relationship for approximately three years. He said they fought frequently, usually because he thought Kentra's former friends were a bad influence on her. He also believed she had cheated on him in the past. Defendant said their arguments sometimes became physical to the point of grabbing each other. He did not admit kicking, punching or slapping Kentra. Defendant stated that, on October 15, 2009, he and Kentra were arguing when he grabbed her by the hair and yelled in her face, and she then scratched his face. Defendant stated he was going to leave Kentra and gathered his belongings, including his shotgun. He pointed the shotgun at her, and it accidentally went off. He denied racking or cocking the gun. During the interview, defendant asked about Kentra's condition. When the detective asked if defendant had pointed the gun at Kentra on previous occasions, defendant ended the interview.
Miranda v. Arizona (1966) 384 U.S. 436.
C. The Verdicts and Sentence
In defendant's first trial, the jury convicted him of corporal injury of a cohabitant, assault with a firearm, and mayhem (counts two, three, and four), and found true the related allegations of firearm use and great bodily injury/domestic violence. The jury was unable to reach a verdict as to the attempted murder charge (count one), and the trial court declared a mistrial as to that count.
After a retrial on count one, defendant was acquitted of attempted murder, but convicted of the lesser offense of attempted voluntary manslaughter (§§ 192, subd. (a), 664). The jury found true the related enhancement allegations as to firearm use and great bodily injury/domestic violence.
The trial court sentenced defendant to the midterm of four years on the mayhem count (count four) and the upper terms on the related enhancements for firearm use (10 years), and great bodily injury/domestic violence (five years), for an aggregate term of 19 years. The court stated that, pursuant to section 654, "sentencing will be stayed on" counts one, two and three, as well as on the associated enhancements for great bodily injury/domestic violence; the court did not mention the firearm enhancements for those counts.
Defendant filed a timely notice of appeal.
II. DISCUSSION
A. Prior Acts of Domestic Violence
1. Background
Prior to both trials, defendant moved in limine to exclude evidence of his prior domestic violence, arguing it constituted inadmissible character evidence under Evidence Code section 1101, was irrelevant and unduly prejudicial, and would violate his due process rights. In both instances, the trial court excluded evidence that defendant committed an act of domestic violence against his former wife in 1995, but admitted evidence of defendant's prior domestic violence against Kentra under Evidence Code section 1109. The court instructed the jury it could consider the uncharged acts in determining whether defendant was "disposed or inclined" to commit domestic violence, and whether he committed the charged offenses.
2. Analysis
Evidence of a person's past conduct generally is inadmissible to show his or her propensity to commit the charged crime, but is admissible to prove facts other than propensity, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Evid. Code, § 1101, subds. (a), (b).) Under Evidence Code section 1109, in "a criminal action in which the defendant is accused of an offense involving domestic violence," evidence of other acts of domestic violence is admissible to show propensity. (Evid. Code, § 1109, subd. (a)(1), italics added.) Defendant contends three of the charges against him—attempted murder, assault with a firearm, and mayhem (counts one, three and four)—were not offenses involving domestic violence within the meaning of the statute, because those crimes do not "inherently" involve domestic violence. Defendant argues it is not sufficient that the evidence established his crimes in fact involved domestic violence.
Defendant concedes count two (corporal injury to cohabitant) inherently involves domestic violence.
Defendant did not raise this contention in the trial court, instead arguing for exclusion on such grounds as irrelevance and prejudice. He therefore has forfeited his argument. (See People v. Ogle (2010) 185 Cal.App.4th 1138, 1141-1142 [defendant forfeited argument that prior offense was inadmissible because it was not an act of domestic violence].) In any event, as we discuss in the text, defendant's contention is meritless.
"A trial court's determination of the admissibility of evidence of uncharged offenses is generally reviewed for an abuse of discretion. [Citations.] To the extent the trial court's ruling depends on the proper interpretation of the Evidence Code, however, it presents a question of law; and our review is de novo. [Citation.]" (People v. Walker (2006) 139 Cal.App.4th 782, 794-795 (Walker).)
Evidence Code section 1109 does not include a list of offenses that involve domestic violence. Instead, the statute incorporates the definition of domestic violence in section 13700 (and, under certain circumstances, the broader definition in Family Code section 6211). (Evid. Code, § 1109, subd. (d)(3).) Section 13700 defines "domestic violence" as "abuse committed against an adult or a minor who is a . . . cohabitant . . . or person with whom the suspect . . . is having or has had a dating or engagement relationship" (§ 13700, subd. (b)); " '[a]buse' " means "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another" (§ 13700, subd. (a)). Applying these definitions, the evidence at trial clearly established that defendant's crimes involved domestic violence. Kentra was defendant's cohabitant and was a person with whom he was in a dating relationship. Defendant intentionally or recklessly caused Kentra to suffer bodily injury, and placed her in reasonable apprehension of imminent serious bodily injury, when he threatened to kill her and then shot her.
In contrast, Evidence Code section 1108, which permits evidence of other sexual offenses when a defendant is "accused of a sexual offense," defines " '[s]exual offense' " by listing specified offenses and categories of conduct. (Evid. Code, § 1108, subds. (a), (d)(1)(A)-(F).)
Defendant relies on Walker, a murder case in which the trial court admitted evidence of other sexual offenses under Evidence Code section 1108, to support his argument that Evidence Code section 1109 does not apply. The Walker court stated the issue before it was "whether [Evidence Code] section 1108, subdivision (d)(1)(E)'s inclusion in the definition of sexual offense of crimes that involve '[d]eriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person' authorizes use of evidence of other sexual offenses when the circumstances under which a violent crime has been committed suggest the defendant derived sexual pleasure or gratification from the victim's pain, even though sexual pleasure or gratification is neither a necessary element of the charged offense nor alleged in the information as an enhancement or aggravating factor." (Walker, supra, 139 Cal.App.4th at p. 799.) The appellate court interpreted section 1108 as requiring "that the requisite sexual transgression must be an element or component of the crime itself without regard to the evidence establishing a specific violation." (Id. at p. 800; see also ibid. [specified sexual misconduct must be "an element of the charge (or applicable enhancement or aggravating factor) and not simply a circumstance of the crime's commission"].)
In People v. Story (2009) 45 Cal.4th 1282 (Story), which also involved Evidence Code section 1108, the Supreme Court considered a similar issue. In a prosecution for first degree felony murder based on the underlying offenses of rape and burglary, the trial court admitted evidence of defendant's other sexual assaults under Evidence Code section 1108. (Story, supra, 45 Cal.4th at pp. 1285-1288.) The appellate court reversed the defendant's conviction, holding he was not " 'accused of a sexual offense' " within the meaning of Evidence Code section 1108, because murder " 'is not found in any of the enumerated Penal Code sections nor does it include as a necessary element nonconsensual sexual contact.' " (Story, supra, 45 Cal.4th at p. 1291.) The Supreme Court disagreed and affirmed the defendant's conviction. The Story court declined to address whether Walker correctly interpreted Evidence Code section 1108, but held that Walker was distinguishable because it did not involve or discuss "the question whether an open murder charge prosecuted as first degree murder on a rape-felony-murder theory is a sexual offense under [Evidence Code] section 1108." (Story, supra, 45 Cal.4th at p. 1292.) The Story court held that, even under the Walker court's narrow interpretation, the defendant had been accused of a sexual offense within the meaning of Evidence Code section 1108, because he had been charged with felony murder with rape as an underlying felony; accordingly, sexual misconduct was "an element or component of the crime itself . . . ." (Story, supra, 45 Cal.4th at p. 1292.)
Defendant contends this court should adopt an interpretation of Evidence Code section 1109 similar to Walker's interpretation of Evidence Code section 1108, and hold that attempted murder, assault with a firearm, and mayhem are not "offense[s] involving domestic violence," because domestic violence is not an essential element of those offenses. We reject this argument. First, assuming Walker correctly interpreted Evidence Code section 1108, defendant has not established that interpretation should be extended to Evidence Code section 1109. To the contrary, in People v. Brown (2011) 192 Cal.App.4th 1222, 1224-1225, 1230-1231, 1235-1237 (Brown), the appellate court expressly declined to extend Walker to Evidence Code section 1109, and concluded that the circumstances of a crime may establish it is an offense involving domestic violence, even if domestic violence is not an essential element of the crime. In Brown, the defendant was charged and convicted of first degree murder in the homicide of his former girlfriend. (Brown, supra, 192 Cal.App.4th at pp. 1224-1225, 1230-1231.) The trial court admitted evidence of the defendant's prior acts of domestic violence under Evidence Code section 1109, holding that murder was an offense " 'involving domestic violence.' " (Id. at pp. 1230-1231.) The appellate court affirmed, stating: "Given the legislative history and the language of [Evidence Code] section 1109, we agree with the trial court's observation in this case that murder is 'the ultimate form of domestic violence,' and that defendant's prior acts of domestic violence were admissible based on the nature and circumstances of his relationship with and conduct toward Bridget. Defendant was charged with first degree murder based on strangling Bridget, his former girlfriend, after a lengthy period in which he tried to intimidate her because she chose to break up with him. He was clearly 'accused of an offense involving domestic violence' within the meaning of [Evidence Code] section 1109." (Id. at p. 1237.)
The Brown court rejected the defendant's argument that, under Walker and Story, prior acts of domestic violence are not admissible in a murder prosecution because murder is not listed as a crime involving domestic violence in either Evidence Code section 1109, section 13700, or Family Code section 6211. (Brown, supra, 192 Cal.App.4th at pp. 1237-1240.) While acknowledging that courts have described Evidence Code sections 1108 and 1109 as " 'virtually identical,' " the Brown court held there were "important statutory distinctions relative to defendant's definitional arguments in this case." (Id. at p. 1238.) While Evidence Code section 1108 permits the introduction of propensity evidence when the defendant " 'is accused of a sexual offense' " and defines that term in part with a list of enumerated offenses, Evidence Code section 1109 provides for the admission of propensity evidence when the defendant " 'is accused of an offense involving domestic violence,' " and does not define that term with a specified list of offenses. (Id. at p. 1240.) Applying Brown here, defendant's prior acts of domestic violence were admissible because, as discussed above, the evidence established the charged offenses involved domestic violence.
A second basis for rejecting defendant's argument is that, even under the Walker approach, defendant's prior acts of domestic violence would be admissible to show propensity as to all four charges. Under Walker, the specified misconduct must be an element of the charged offense or "alleged in the information as an enhancement or aggravating factor." (Walker, supra, 139 Cal.App.4th at p. 799, italics added; accord, id. at p. 800.) The information here alleged that, in the commission of all four offenses, defendant "personally inflicted great bodily injury upon [Kentra], under circumstances involving domestic violence," within the meaning of section 12022.7, subdivision (e).(Italics added.) Accordingly, defendant was, in each count, "accused of an offense involving domestic violence[.]" (See Evid. Code, § 1109, subd. (a)(1).)
Section 12022.7, subdivision (e) incorporates the definition of domestic violence in section 13700, subdivision (b), the same definition incorporated in Evidence Code section 1109.
B. Section 654
As noted above, the trial court sentenced defendant on the mayhem count and imposed two enhancements—10 years for firearm use and five years for great bodily injury/domestic violence. In his opening and reply briefs, defendant contended that the court should have stayed the sentence on the great bodily injury enhancement because (1) section 654 precludes imposition of unstayed terms on both enhancements, and (2) the great bodily injury enhancement and the underlying offense of mayhem overlap. The Attorney General argued in her principal brief that section 654 does not apply to sentence enhancements. We offered the parties the opportunity to submit supplemental letter briefs addressing the decision in People v. Ahmed (2011) 53 Cal.4th 156 (Ahmed) (issued after the parties filed their principal briefs in this case), in which our Supreme Court addressed the applicability of section 654 to sentence enhancements. In light of Ahmed, we reject both of defendant's arguments.
1. Section 654's Applicability to Sentence Enhancements
Section 654 provides in relevant part: "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. . . ." (§ 654, subd. (a).) The statute "precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.]" (People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza); accord, People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.) If a defendant is convicted under two statutes for one act or indivisible course of conduct, section 654 requires that the sentence for one conviction be imposed, and the other imposed and then stayed. (Deloza, at pp. 591-592; People v. Alford (2010) 180 Cal.App.4th 1463, 1469, 1471-1472 (Alford).) "Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]" (Deloza, at p. 592.) Sentencing errors under section 654 cannot be forfeited and are corrected on appeal regardless of whether the appellant raised the point in the trial court. (People v. Lopez (2004) 119 Cal.App.4th 132, 138.)
Prior to its decision in Ahmed, our Supreme Court had not determined whether section 654 applies to enhancements. In People v. Coronado (1995) 12 Cal.4th 145, 156 (Coronado), the court noted "there are at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense." The Coronado court held section 654 does not apply to enhancements in the first category, such as enhancements attributable to a defendant's status as a repeat offender. (Id. at pp. 156-158.) The Coronado court did not determine whether section 654 applies to enhancements that focus on the defendant's conduct in committing the current offense (such as firearm use and bodily injury enhancements). (Coronado, supra, 12 Cal.4th at pp. 156-157.)
The Supreme Court declined to decide that issue in other cases as well (see, e.g., People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Palacios (2007) 41 Cal.4th 720, 727-728), and Courts of Appeal disagreed as to its proper resolution (see People v. Arndt (1999) 76 Cal.App.4th 387, 394-395 [collecting cases]).
In Ahmed (which involved the same two enhancements at issue in this case, firearm use and great bodily injury), the Supreme Court outlined the approach for determining whether multiple sentence enhancements may be imposed. First, a court should examine the specific sentencing statutes. If they provide the answer, the court should stop there, and need not consider the more general provisions of section 654, because a specific statute prevails over a more general one. (Ahmed, supra, 53 Cal.4th at pp. 160-161, 162, 164.)
Second, if the specific sentencing statutes do not resolve the issue, section 654 does apply to enhancements. (Ahmed, supra, 53 Cal.4th at pp. 161, 164.) However, it applies differently to enhancements than to substantive crimes. (Id. at pp. 161, 164-165.) While provisions defining substantive crimes generally define criminal acts, enhancement provisions increase the punishment for those acts by "focus[ing] on aspects of the criminal act that are not always present and that warrant additional punishment." (Id. at p. 163.) "[W]hen applied to multiple enhancements for a single crime, section 654 bars multiple punishment for the same aspect of a criminal act." (Ahmed, supra, 53 Cal.4th at p. 164.)
Applying this approach, the Supreme Court concluded that a specific sentencing statute, section 1170.1, permitted imposition of both the weapon enhancement and the great bodily injury enhancement. (Ahmed, supra, 53 Cal.4th at pp. 165-167, 169.) Section 1170.1, subdivision (f), provides: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury." Similarly, section 1170.1, subdivision (g), provides: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm." Because section 1170.1 resolved the issue, the Ahmed court did not consider section 654. (Ahmed, supra, 53 Cal.4th at p. 169.)
2. Application of Ahmed to Defendant's Contentions
a. Multiple Enhancements
Defendant's first argument (i.e., that section 654 precludes imposition of multiple enhancements) fails. Under Ahmed, section 1170.1 permits imposition of both a firearm enhancement and a great bodily injury enhancement, and it is unnecessary to consider section 654. (Ahmed, supra, 53 Cal.4th at pp. 165-167, 169.) Defendant concedes this point in his supplemental brief.
b. Overlap Between Enhancement and Underlying Offense
Defendant's second argument is that the trial court should have stayed the great bodily injury enhancement because it overlapped with the underlying offense of mayhem. In particular, defendant notes that great bodily injury is an element of mayhem. (People v. Pitts (1990) 223 Cal.App.3d 1547, 1559-1560 (Pitts); People v. Keenan (1991) 227 Cal.App.3d 26, 36, fn. 7 (Keenan).) Defendant also cites this court's decision in People v. Harbert (2009) 170 Cal.App.4th 42 (Harbert), in which we assumed section 654 applied to a great bodily injury enhancement under section 12022.7, and stated the trial court had correctly stayed the enhancement because it overlapped with the underlying offense (a violation of Vehicle Code section 20001). (See Harbert, supra, 170 Cal.App.4th at p. 59; but see People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044-1045 [section 654 does not bar punishment for both (1) an offense and (2) a great bodily injury enhancement].)
The Ahmed court did not consider a claim that section 654 limited the application of an enhancement because it overlapped with the underlying offense. As the parties agree in their supplemental briefs, however, Ahmed requires that we begin our analysis of this claim by considering the specific sentencing statute at issue—section 12022.7. (See Ahmed, supra, 53 Cal.4th at pp. 160-161, 162, 164.) Subdivisions (a) through (e) of section 12022.7 provide enhancements for great bodily injury inflicted under various specified circumstances; the enhancement in subdivision (e) is for great bodily injury under circumstances involving domestic violence. Subdivision (g) of section 12022.7 provides that "[s]ubdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense"; subdivision (g) does not specify such a limitation on the enhancement applicable under subdivision (e), for great bodily injury under circumstances involving domestic violence. Accordingly, although a section 12022.7 enhancement generally may not be applied where great bodily injury is an element of the offense, "[t]he enhancement may be applied . . . if the crime is committed under circumstances involving domestic violence." (See People v. Hawkins (2003) 108 Cal.App.4th 527, 530-531 (Hawkins).)
Here, defendant committed mayhem under circumstances involving domestic violence. Accordingly, section 12022.7, subdivisions (e) and (g), permit imposition of a great bodily injury enhancement. Because section 12022.7 resolves this question, we need not consider the more general provisions of section 654. (See Ahmed, supra, 53 Cal.4th at pp. 160-161, 162, 164, 169.)
Defendant contends that section 12022.7, subdivision (g), is "ambiguous in its omission of subdivision (e), relating to domestic violence," and that therefore the court should proceed to address section 654. According to defendant, section 12022.7, subdivision (g), could mean either (1) "the subdivision (e) enhancement is always applicable, even if great bodily injury is an element of the substantive offense," or (2) "subdivision (e) is applicable, even when great bodily injury is an element of the substantive offense, but only when domestic violence is not an element of that offense." But this perceived ambiguity does not assist defendant—as defendant argued in his opening and reply briefs (in connection with his challenge to the trial court's evidentiary rulings), domestic violence is not an essential element of mayhem. (See § 203; CALCRIM No. 801.) Although defendant's offense in fact involved domestic violence, that could not provide a basis for holding the enhancement under section 12022.7, subdivision (e), is inapplicable (as defendant appears to suggest). To the contrary, the existence of "circumstances involving domestic violence" is what triggers that enhancement. (See § 12022.7, subd. (e).)
C. The Upper Enhancement Terms
1. Background
At sentencing, after hearing argument from the parties and an impact statement from Kentra, the court adopted the probation department's recommendation to impose the four-year midterm on the mayhem count. The court noted the "horrific" nature of the crime and Kentra's severe injuries, while acknowledging defendant had no criminal history. The court agreed with the prosecutor that there were "some aggravating factors," but stated "much of what they rely upon are already accounted for in the enhancements. That's just the way the law works." The court stated, "[w]hen I looked at both the aggravating and mitigating factors, on balance it's pretty close . . . ."
The court imposed consecutive upper terms for the firearm use and bodily injury enhancements. The court concluded that defendant's firearm use was "aggravated," based in part on Kentra's vulnerability, i.e., she was seated on the couch in the locked apartment when defendant shot her. The upper term was appropriate because of "how the gun was used, where the victim was seated at the time. There was no way out. And a statement was made prior to add terror in the victim's mind."
As to the great bodily injury enhancement, the court concluded the upper term was appropriate based on Kentra's extensive and permanent injuries. The court noted Kentra's survival was "miraculous." The court also emphasized Kentra had survived not because of anything defendant did but because she put her arm up to block defendant's shot from hitting her in the face. The court stated: "[T]he degree of injury with the victim actually surviving is pretty dramatic, and if you just look at Ms. Kentra on first glance she might look fine, but we know that's not true. Not only are the pellets in her head for the rest of her life, the injury runs down her arm, and the lack of mobility is essentially nothing more than what has been described as a helper, turns her arm in many ways into an object is how it's described."
After announcing the aggregate 19-year sentence, as well as fines and restitution, the court asked, "Is there anything else we need this morning?" Defendant's counsel stated: "Just for me to state my objection to the high term for appellate purposes, your Honor." In response to a query from the court, counsel clarified that this objection applied to both enhancements.
2. Analysis
Defendant contends the trial court abused its discretion by imposing the upper terms for the enhancements. (See People v. Sandoval (2007) 41 Cal.4th 825, 847 [trial court's sentencing decisions reviewed for abuse of discretion].) We disagree.
In the trial court, defendant did not raise the challenges to his sentence that he now asserts on appeal, stating only a general objection to the upper terms "for appellate purposes." Defendant has not shown that his counsel could not have elaborated by stating more specific objections, and has not shown the trial court would not have considered such objections. He has thus forfeited his contentions. (See People v. Scott (1994) 9 Cal.4th 331, 353, 356 [arguments about manner in which trial court exercises sentencing discretion cannot be raised for first time on appeal].)
In any event, defendant has not shown an abuse of discretion. As to the great bodily injury enhancement, defendant suggests the court's reliance on the severity of Kentra's injuries to impose the upper term was an improper dual use of this fact. (See Cal. Rules of Court, rule 4.420(d) ["[a] fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term"].) As noted above, although section 12022.7 generally precludes imposition of a great bodily injury enhancement when such injury is an element of the underlying offense (as it is in the case of mayhem, see Pitts, supra, 223 Cal.App.3d at pp. 1559-1560; Keenan, supra, 227 Cal.App.3d at p. 36, fn. 7), this prohibition does not apply when the injury is inflicted under circumstances involving domestic violence under section 12022.7, subdivision (e). (See § 12022.7, subd. (g); Hawkins, supra, 108 Cal.App.4th at pp. 530-531.) Moreover, in selecting the upper enhancement term of five years (§ 12022.7, subd. (e)), the court could reasonably have concluded that Kentra's severe and permanent injuries exceeded the minimum necessary to impose the great bodily injury enhancement. (See People v. Castorena (1996) 51 Cal.App.4th 558, 562 [upper term may be imposed based on facts exceeding the minimum necessary to establish elements of crime].) The trial court did not abuse its discretion by imposing the upper term.
As to the firearm use enhancement, defendant argues that the trial court's reliance on Kentra's inability to flee the locked apartment and defendant's threat to kill her are inconsistent with the jury's acquittal on the charge of attempted deliberate, premeditated murder. But the court's conclusion that defendant's gun use was aggravated because he took advantage of Kentra's vulnerability and because he threatened her before shooting is not undercut by the fact that he may have taken those actions out of passion rather than premeditation.
Finally, defendant argues he was remorseful and attempted to obtain medical assistance for Kentra after he shot her. (See Cal. Rules of Court, rule 4.414(b)(7).) As the Attorney General notes, there was also evidence defendant continued to maintain the shooting was an accident. In any event, defendant has not shown that the court abused its discretion by failing to give significant weight to his apparent remorse.
D. Implementation of Section 654 as to Counts One, Two and Three
As noted above, the trial court stated that, pursuant to section 654, "sentencing will be stayed on" counts one, two and three, as well as on the related bodily injury enhancements; the court did not mention the firearm enhancements for those counts. The correct procedure is to impose a sentence for each count and enhancement and then to stay execution of sentence as necessary to comply with section 654. (People v. Duff (2010) 50 Cal.4th 787, 795-796; Alford, supra, 180 Cal.App.4th at pp. 1469, 1471-1472.) That way, if the unstayed sentence is reversed, a valid sentence will remain. (Alford, supra, 180 Cal.App.4th at p. 1469.) Failure to follow this procedure results in "an unauthorized absence of sentence" that we must correct on appeal. (Id. at pp. 1467, 1472.)
As to the remedy, if we were to remand for a new sentencing hearing, it "would mean pulling defendant out of his prison programming and busing him to [court] for a new sentencing hearing that will not change his actual prison time. The futility and expense of such a course militates against it." (See Alford, supra, 180 Cal.App.4th at p. 1473.) Instead, we will exercise our authority to modify the judgment. (§ 1260; see Alford, supra, 180 Cal.App.4th at p. 1473.) On each of counts one, two and three, we impose the midterm sentence for the offense (three years in each case, see §§ 193, subd. (a), 664, subd. (a), 273.5, subd. (a), 245, subd. (a)(2)), and upper terms for the two enhancements (10 years for firearm use, see § 12022.5, subd. (a), and five years for great bodily injury/domestic violence, see § 12022.7, subd. (e)), because that is undoubtedly the sentence the trial court would have imposed, based on the court's statements at the sentencing hearing. (See Alford, supra, 180 Cal.App.4th at p. 1473.) We stay execution of these sentences. (§ 654.)
E. Designation of Firearm Enhancement on Count Four
The information alleged defendant personally used a firearm under section 12022.5, subdivision (a), and the jury found the allegation true. At sentencing, the trial court incorrectly stated that the firearm enhancement was pursuant to section 12022, subdivision (b), rather than section 12022.5, subdivision (a). The minute order and abstract of judgment reflect the court's oral reference to section 12022, subdivision (b). We will direct that the abstract of judgment be corrected to reflect imposition of the firearm use enhancement pursuant to section 12022.5, subdivision (a).
Section 12022, subdivision (b) provides a one-year enhancement for personal use of a deadly or dangerous weapon in the commission of a felony. (§ 12022, subd. (b)(1).)
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III. DISPOSITION
The judgment is modified to impose and stay, pursuant to section 654, the following sentences:
(1) On count one, attempted voluntary manslaughter, a three-year midterm sentence (§§ 193, subd. (a), 664, subd. (a)), a 10-year upper term for the firearm use enhancement (§ 12022.5, subd. (a)), and a five-year upper term for the great bodily injury/domestic violence enhancement (§ 12022.7, subd. (e)).
(2) On count two, corporal injury to a cohabitant, a three-year midterm sentence (§ 273.5, subd. (a)), a 10-year upper term for the firearm use enhancement (§ 12022.5, subd. (a)), and a five-year upper term for the great bodily injury/domestic violence enhancement (§ 12022.7, subd. (e)).
(3) On count three, assault with a firearm, a three-year midterm sentence (§ 245, subd. (a)(2)), a 10-year upper term for the firearm use enhancement (§ 12022.5, subd. (a)), and a five-year upper term for the great bodily injury/domestic violence enhancement (§ 12022.7, subd. (e)).
The judgment is also corrected to reflect that the firearm use enhancement as to count four is pursuant to section 12022.5, subdivision (a).
The trial court is directed to prepare an amended abstract of judgment reflecting these modifications. The court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
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Haerle, J.
We concur:
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Kline, P.J.
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Lambden, J.