Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FBA007632. John B. Gibson, Judge.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, Andrew Mestman, and Robert Foster, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
McKinster J.
After we affirmed the judgment finding defendant and appellant Ricky Tommy Aragon (hereafter defendant) guilty of various crimes including assault with a firearm in violation of Penal Code section 245, subdivision (a)(2) but remanded for resentencing in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the Supreme Court granted review but held the matter pending its resolution of People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). After deciding those two cases, the Supreme Court vacated our original opinion and transferred the case back to this court with directions to reconsider the sentencing issue in light of Black II and Sandoval. We conclude as we did in defendant’s original appeal that in imposing the upper term sentence on defendant’s assault conviction the trial court violated defendant’s right under the Sixth Amendment to have a jury determine all disputed factual issues, and that the error was not harmless beyond a reasonable doubt.
All further statutory references are to the Penal Code unless indicated otherwise.
Defendant also challenges the sufficiency of the evidence to support his conviction on count 3, a criminal street gang charge, and to support the jury’s true finding on the related gun use enhancement. We conclude for reasons we explain below that this claim lacks merit. We also reject defendant’s claim that the trial court should have instructed the jury on the need for unanimity because Alexander Gamez, the actual perpetrator, fired four shots at the victim, each of which defendant contends constituted a separate act of assault with a firearm, but the prosecutor charged only one crime based on those acts. However, we agree with defendant’s claim that the trial court should have stayed execution of the sentence imposed on defendant’s attempted robbery conviction because that crime and the crime of assault with a firearm were based on the same criminal act within the meaning of section 654. Because we conclude, as previously noted, that the trial court violated the Sixth Amendment when it imposed the upper term sentence on defendant’s conviction for assault with a firearm, we will vacate defendant’s sentence and remand the matter to the trial court for further proceedings, and with directions that, in resentencing defendant, the trial court must stay execution of the sentence imposed on count 1. Otherwise we will affirm the judgment.
FACTS
The parties fully recount the evidence presented at trial in their respective briefs. For our purpose it is sufficient to recount only those details pertinent to the issues defendant raises in this appeal. That evidence includes the testimony of Craig Sullivan, the victim, who testified in pertinent part that on December 22, 2003, around 9:30 p.m., he and his friends, Robert and Linda Linville, went to an apartment complex to find their friend Christopher Schwartz (also referred to at trial as CC) in order to buy marijuana. While Sullivan knocked on the door of an apartment where he believed CC lived, defendant walked up and told Sullivan that the occupant of the apartment was not home. Then defendant asked whether Sullivan was looking for marijuana. After Sullivan said he was, defendant walked upstairs and returned with another man who asked Sullivan how much marijuana he wanted to buy. Sullivan said that he had to check with his friends. He then walked back to the car with defendant and the other man.
Linda Linville was in the back seat of the car waiting for her husband Robert and Sullivan to return. Robert had also apparently gone in search of CC. Sullivan sat down in the front passenger seat, with the door open and his legs and feet extended outside the car. After Sullivan sat down, the second man said that he would get marijuana for him if Sullivan would give him some money. When Sullivan said that his friend had the money, the man hit Sullivan in the knee with a gun and said, “Look, mother fucker where is the money?” When Sullivan repeated that he did not have any money, the man said, “If you don’t give me your money, I’m going to blow your fucking head off.” The man shot Sullivan in the leg after Sullivan said yet again that he did not have any money.
As the gun went off, Sullivan grabbed the man’s hands, and jumped out of the car. The man tried to shoot Sullivan in the face while Sullivan held his hands. The two struggled and eventually fell to the ground. Sullivan repeatedly banged the man’s hands on the ground to get him to let go of the gun. During the struggle, the gun went off three times but none of the bullets hit Sullivan. When Sullivan lost his hold, the man scrambled to his feet, and started kicking Sullivan while at the same time demanding that Sullivan give him money. Sullivan, who was lying on his back with his hands over his head, asked the man not to shoot him, all the while repeating that he did not have any money. The man shot Sullivan three more times in the legs, each gunshot preceded by a demand for money and Sullivan’s insistence that he did not have any money. After shooting Sullivan, the man ran off.
While Sullivan and the man with the gun struggled, defendant stood by the door to the back seat of the car where Linda Linville was seated. When the man with the gun ran off, defendant ran off too. After the two men left, Sullivan got up and ran from the area. He looked for help but was unable to find any and eventually walked to a hospital where he received treatment for gunshot wounds, one in the back of each thigh, and a graze or tangential wound in his left leg.
Sullivan described defendant, both to the investigating police officer, Detective Griego, and at trial, as a heavyset man with a large tattoo on the side of his head that said “G-Thing” or “G-Thang.” Sullivan could not identify the second man and described him as a young Hispanic male.
Linda Linville identified Gamez in a live lineup as the person who shot Craig Sullivan after demanding money from him. She identified defendant from a photo lineup as the person who kicked Sullivan and who also stood next to the car during that assault and indicated by wagging his finger back and forth that Linda should not try to get out of the car.
Alejandro Rodriguez testified in pertinent part that on the night in question he was visiting his sister at the apartment complex where the shooting occurred. Rodriguez denied remembering anything about the shooting, other than hearing the shots fired, and also could not recall talking with a police detective a few days after the incident occurred. Detective Griego testified in pertinent part that he interviewed Alejandro Rodriguez, whose sister lives in an apartment that overlooks the area where the shooting occurred. Rodriguez told the detective that he had looked out the window of his sister’s apartment and saw “Alex Gamez” shooting someone who was on the ground. Rodriguez knew Gamez and recognized him because he and Gamez used to work together. Rodriguez told Detective Griego that he also saw defendant walk over and kick the victim, after which defendant and Gamez ran off. Detective Griego testified, in pertinent part, that in the early morning hours after the shooting, he contacted Gamez in an apartment at the complex where the shooting had occurred. Gamez, whom Detective Griego also knew by his gang moniker, Little Grande, told the detective that he had been in the apartment all night.
Additional evidence will be discussed below as pertinent to the issues defendant raises on appeal.
DISCUSSION
We first address defendant’s contention that the evidence is insufficient to support the jury’s verdict finding him guilty on count 3 of participating in a criminal street gang, and the jury’s true finding on the related gun use enhancement.
1.
SUFFICIENCY OF THE EVIDENCE
The district attorney prosecuted defendant on the theory that he had aided and abetted Alexander Gamez, the actual perpetrator, in the commission of the noted crimes. At the conclusion of their joint trial, the jury was unable to reach verdicts with respect to any of the charges against Gamez but found defendant guilty as charged on all three counts.
Defendant’s challenge to the sufficiency of the evidence stems from the jury’s inability to reach verdicts on the charges against Gamez. Because Gamez was the actual perpetrator of the crimes and defendant’s liability was predicated entirely on aiding and abetting Gamez, defendant contends that the jury’s inability to reach a verdict on the charges against Gamez requires reversal of defendant’s conviction on the criminal street gang charge because, in order to find defendant guilty of actively participating in a criminal street gang, the jury had to find among other things that defendant aided and abetted another member of the criminal street gang in committing a crime. (See § 186.22, subd. (a); People v. Ngoun (2001) 88 Cal.App.4th 432, 435-536; CALJIC No. 6.50 (Fall 2006 ed.).) Because the jury did not find Gamez guilty of any crime and there was no evidence to show that some other gang member committed those offenses, defendant contends the evidence is insufficient to support the jury’s implied finding that defendant aided and abetted a gang member in committing a crime.
Defendant does not challenge the sufficiency of the evidence to prove the other elements of the criminal street gang charge and thus concedes the evidence established the existence of a criminal street gang, called Los Gents, of which Gamez and defendant were members.
The issue defendant presents does not concern sufficiency of the evidence. The evidence presented at trial, and recounted above, is sufficient to show that Gamez committed each of the charged crimes, notwithstanding the jury’s inability to reach verdicts on the charges, and that defendant aided and abetted Gamez in the commission of the those crimes. The issue defendant raises is whether the jury’s inability to reach verdicts on the charges against Gamez affects the validity of the verdicts the jury rendered against defendant. The answer is no, for reasons we now explain.
In deciding whether the jury’s inability to reach a verdict as to Gamez affects the validity of defendant’s conviction for participating in a criminal street gang, we are guided initially by principles that apply when juries reach inconsistent verdicts. “It is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 656.) For example, a jury may convict the alleged aider and abettor even though in an earlier proceeding a different jury acquitted the actual perpetrator. (Standefer v. United States (1980) 447 U.S. 10.) In affirming the aider and abettor’s conviction, and rejecting his collateral estoppel claim, the Standefer court “noted that a jury has the power, if not the legal right, to acquit no matter what the evidence, and the prosecution may never challenge such an acquittal. This circumstance ‘in criminal cases permits juries to acquit out of compassion or compromise or because of “‘their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.’” [Citation.]’ [Citation.] ‘In denying preclusive effect to [the actual perpetrator’s] acquittal, we do not deviate from the sound teaching that “justice must satisfy the appearance of justice.” [Citation.] This case does no more than manifest the simple, if discomforting, reality that “different juries may reach different results under any criminal statute. This is one of the consequences we accept under our jury system.” [Citation.] While symmetry of results may be intellectually satisfying, it is not required. [Citation.]’” (People v. Palmer (2001) 24 Cal.4th 856, 862-863, quoting Standefer v. United States, supra, 447 U.S. at pp. 22, 25-26, quoting Dunn v. United States (1932) 284 U.S. 390, 393.)
Defendant does not challenge his convictions on count 1 and count 2, both of which also depend on defendant aiding and abetting Gamez in the commission of those crimes, and thereby impliedly recognizes the principle that a jury may reach inconsistent verdicts with respect to codefendants who are prosecuted as actual perpetrator and aider abettor. In challenging his conviction on count 3 defendant argues that because the jury was unable to reach verdicts on the charges against Gamez and there was no evidence to show that another gang member committed those crimes, defendant could not have aided and abetted a gang member in committing a crime and therefore defendant cannot be found guilty of participation in a criminal street gang. In other words, defendant would have us infer from the jury’s inability to reach verdicts on the charges against Gamez that the evidence was insufficient to support those charges. We cannot draw that inference. If, as defendant contends, the jury had found that the evidence was insufficient to convict Gamez, then they would have acquitted him and thereby reached a verdict. A jury’s inability to reach a verdict implies only that the jurors could not all agree on some aspect of the charge. Neither the source of disagreement nor the correctness of the disagreement can be implied from the jurors’ inability to unanimously agree.
In the context of coconspirators, a context analogous to that of aider and abettor and actual perpetrator, inconsistent verdicts are permitted in a joint trial. (See People v. Palmer, supra, 24 Cal.4th at pp. 860-865.) The same conclusion should apply when the defendant is charged with participating in a criminal street gang and is prosecuted on the theory that the defendant aided and abetted a crime committed by another gang member. The United States Supreme Court has explained: “‘[A] criminal defendant . . . is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review should be independent of the jury’s determination that evidence on another count was insufficient.’ [Citation.]” (People v. Lewis, supra, 25 Cal.4th at p. 656, quoting United States v. Powell (1984) 469 U.S. 57, 67.)
The evidence recounted above is sufficient to support defendant’s conviction for aiding and abetting Gamez, a gang member, in committing assault with a firearm and attempted robbery. Therefore, the evidence supports defendant’s conviction of participation in a criminal street gang as alleged in count 3. Briefly recounted, that evidence includes the testimony of Linda Linville who identified Gamez both in a lineup and in court during trial, as the person who assaulted Craig Sullivan with a firearm, shot him, and attempted to rob him. When interviewed by Detective Griego, Alejandro Rodriguez also identified Gamez as the assailant although he refused to repeat that identification in court, and instead steadfastly insisted that he could not recall anything that had occurred, including whether he had even actually talked to Detective Griego. The evidence also shows that defendant introduced Gamez to Sullivan, and that defendant stood by and watched while Gamez repeatedly shot Sullivan in an attempt to rob him. Moreover, the evidence shows that defendant participated in the assault by kicking Sullivan after Sullivan struggled with Gamez over the gun.
For the reasons discussed above we must also reject defendant’s assertion that the district attorney’s subsequent dismissal of the charges against Gamez requires us to reverse defendant’s conviction on count 3. According to defendant, the prosecutor dismissed the charges because Gamez did not commit the charged crimes. To support that claim defendant asks that we take judicial notice of the transcript of the hearing on October 25, 2005, in the subsequent retrial of Gamez at which the prosecutor dismissed the charges. We grant that judicial notice request but conclude that the transcript does not support defendant’s claim that the prosecutor dismissed the charges because Gamez was innocent. The transcript shows only that the prosecutor believed he could not prove the charges against Gamez beyond a reasonable doubt because Sullivan would not identify him at trial, and for that reason the prosecutor dismissed the charges.
Finally, and for the reasons previously discussed, we must also reject defendant’s challenge to the sufficiency of the evidence to support the jury’s true finding on the section 12022, subdivision (a)(1) sentence enhancement alleged in connection with count 3. Defendant challenges the enhancement on the same ground he relied on to challenge the substantive offense to which the enhancement is attached—the evidence is insufficient to show that a principal in the crime of participating in a criminal street gang was armed with a firearm because the jury did not find Gamez guilty of any crime. Defendant purports to distinguish the enhancement from the crime to which it is attached, and argues based on that purported distinction that even if the evidence is sufficient to support the crime, it is insufficient to support the firearm enhancement. The distinction defendant attempts to draw is not apparent to us. In our view, the jury’s true finding on the firearm enhancement is supported by the same evidence recounted above that supports the jury’s guilty verdict on the underlying crime.
Accordingly, for the reasons explained above we reject defendant’s assertion that the evidence was insufficient to support the jury’s verdict finding him guilty of participation in a criminal street gang as alleged in count 3 and finding true the section 12022, subdivision (a)(1) firearm enhancement alleged in connection with that charge.
2.
UNANIMITY
Defendant contends that because Sullivan was shot more than once the evidence supports more than one charge of assault with a firearm which in turn required either that the prosecution elect the act it intended to rely on to support the charge or the trial court instruct the jury on the need for unanimity. Neither of those things occurred, and according to defendant the oversight resulted in structural error. We do not agree that a unanimity instruction was required.
According to defendant, Sullivan was shot four times. In our view of the evidence, Gamez hit Sullivan once with the gun, and then shot him three times.
“[W]hen 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.) The controlling case is People v. Oppenheimer (1909) 156 Cal. 733, in which the defendant, who was in prison for life, assaulted a fellow prisoner, first by hitting him in the head with a weight and then assaulting him with a knife. (Id. at p. 737.) In rejecting the defendant’s assertion that the evidence showed two separate acts of assault, the Supreme Court held the prosecutor was not required to elect between an assault with the weight and an assault with the knife: “We think it is manifest that there was but a single assault shown by this evidence, even though two weapons were used. The mere fact that two weapons are used does not necessarily show two assaults. If one unlawfully assails another with his two hands, first striking at him with one hand and immediately thereafter with the other, no one would say that there were two offenses. The offense would be the one unlawful attempt, coupled with a present ability, to commit a violent injury upon the other’s person, and each effort made in what constituted only the same attempt to accomplish this result would constitute only a single element of that attempt.” (People v. Oppenheimer, supra, 156 Cal. at p. 740.)
Defendant’s contrary claim notwithstanding, the evidence in this case shows only one discrete criminal act of assault with a firearm, even though Gamez fired several shots at Sullivan. Accordingly, we conclude the prosecutor was not required to elect the specific act of assault and the trial court was not required to instruct the jury on the need to unanimously agree on the specific act that constituted that crime.
3.
CONSECUTIVE SENTENCES
Defendant contends that the trial court erred when it imposed consecutive sentences on defendant’s conviction for assault with a firearm and his conviction for attempted robbery. Defendant contends that both crimes resulted from the same criminal act, or occurred during an indivisible course of criminal conduct, and therefore the trial court should have stayed execution of the lesser sentence in accordance with section 654. The Attorney General concedes this claim of error, a concession we view as appropriate.
Section 654 prohibits multiple punishments for a single criminal act, or indivisible course of criminal conduct, that violates more than one criminal law. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 18.) When the defendant commits more than one physical act during a criminal enterprise the question is whether the course of criminal conduct is divisible and “therefore gives rise to more than one act within the meaning of section 654.” (Neal v. State of California, supra, at p. 19.) Resolution of that question, in turn, “depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Ibid.)
The trial court here imposed consecutive sentences on counts 1 and 2 after finding that the attempted robbery was complete, and that the last shot Gamez fired had nothing to do with that crime. According to the trial court, “That [attempted robbery] was over with. It [the last shot] was just done out of malice, and, therefore, it was not part and parcel of the one crime. Completely independent thereof.”
As defendant points out, and the Attorney General concedes, there was no evidence to show that defendant shared the intent and purpose of the actual perpetrator to assault Sullivan with a firearm after the attempted robbery was completed. Therefore, assuming the trial court’s view of the evidence is accurate, and the last shot Gamez fired was entirely gratuitous and unrelated to the attempted robbery, that evidence would support consecutive sentences only as to Gamez, the actual perpetrator. (See People v. Bradley (2003) 111 Cal.App.4th 765, 769-770 [aider and abetter may be convicted of both crimes but may only be sentenced on both if evidence shows aider and abetter harbored separate intent and objective].) Accordingly, we will stay execution of the eight-month sentence the trial court imposed on count 1, defendant’s attempted robbery conviction, that being the shorter of the two sentences.
Defendant also contends that we must stay execution of the sentence on the firearm enhancement imposed on count 3, defendant’s conviction for violating section 186.22, subdivision (a), by actively participating in a criminal street gang. According to defendant, the firearm use enhancement is based on the same acts that constitute the substantive crimes, and therefore execution of the sentence imposed on the enhancement must be stayed under section 654.
The sentence enhancement at issue here, which increases the defendant’s sentence on the underlying crime by a year in state prison when a firearm is used to commit the underlying crime, does not result in dual punishment for the same criminal conduct. Rather such enhancements increase the punishment that is imposed for the underlying crime. Simply put, defendant is not being punished more than once for the same criminal act, he is being punished more harshly for that criminal act because a principal was armed with a firearm during the commission of that crime. (§ 12022, subd. (a).) Moreover, it occurs to us, as it has to other courts, that if section 654 applies to enhancements based on use of a firearm in the commission of the underlying offense, then “section 12022, subdivisions (a) and (b), and section 12022.5, subdivisions (a) and (b) would be superfluous.” (People v. Rodriguez (1988) 206 Cal.App.3d 517, 519; cf. People v. Palacios (2007) 41 Cal.4th 720, 727-728, in which the Supreme Court held that section 654 does not apply to section 12022.53 gun use enhancements.) For these reasons, we conclude that section 654 does not preclude execution of the section 12022, subdivision (a) firearm use enhancement the trial court imposed on count 3.
We note that this case does not involve the imposition of more than one firearm use enhancement because the trial court stayed execution of the enhancement imposed on count 2 after it relied on Gamez’s use of the firearm to impose the upper term sentence on that count, and we have stayed execution of the sentence imposed on count 1. As a result, only one firearm use enhancement is being imposed and executed and that is the enhancement found true in connection with count 3.
4.
SIXTH AMENDMENT VIOLATION
The trial court imposed the upper term sentence of four years on defendant’s assault conviction because defendant was not remorseful, had engaged in planning, and committed the assault with a firearm in an apartment complex where children lived and therefore exposed those innocent bystanders to potential danger. Defendant contends that the upper term sentence violates his Sixth Amendment right to have a jury rather than a judge determine all disputed factual issues. We agree for reasons we now explain.
In Cunningham, the United States Supreme Court held that California’s determinate sentencing law violates the Sixth and Fourteenth Amendments to the United States Constitution because it allows a judge to impose an upper term sentence based on facts found true by the judge rather than the jury. (Cunningham, supra, 127 S.Ct. at p. 860.) As the high court explained, “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Ibid.) In Black II, the Supreme Court held, in pertinent part, that when one circumstance in aggravation is established in a manner that comports with the federal Constitution, i.e., by a jury, by the defendant’s admission, or based on a prior conviction, that circumstance renders the defendant eligible for the upper term sentence, and that sentence becomes the statutory maximum sentence that the trial court can impose. The trial court may then rely on other aggravating circumstances, regardless of whether they were found true by a jury, without violating the federal Constitution in exercising discretion to impose an upper term sentence. (Black II, supra, 41 Cal.4th at p. 813.) In Sandoval, the court held that Sixth Amendment error stemming from judicial factfinding is subject to federal harmless error analysis: If we are able to conclude, beyond a reasonable doubt, “that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Sandoval, supra, 41 Cal.4th at p. 839.)
Defendant takes issue with Black II and Sandoval but recognizes that this court is bound by those decisions under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.
In this case, the facts the trial court relied on to impose the upper term sentence were not established by a jury finding, or by defendant’s admission, and are not based on a prior conviction. Therefore, those facts were not established in a manner that comports with the Sixth Amendment. (Black II, supra, 41 Cal.4th at p. 813.) Nor can we say that the Sixth Amendment violation is harmless in this case. None of the facts the trial court relied on, i.e., lack of remorse, planning, and indifference to the safety of others, are necessarily implied in the jury’s guilty verdicts. Consequently we cannot say that in finding defendant guilty of any of the noted crimes that the jury necessarily albeit implicitly found the noted facts. Defendant’s lack of remorse was not an aspect of any of the crimes. Planning also was not an element of any crime and evidence with respect to that issue, at best, is equivocal. It appears from the evidence that it is equally likely that the crimes were ones of opportunity. The trial court’s view that defendant exposed others to potential injury is not based on evidence presented at trial but, rather, is based on the trial court’s personal view of the crime scene during a jury visit. In short, and simply put, we cannot conclude beyond a reasonable doubt that a jury unquestionably would have found any of the noted facts true beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th at p. 839.)
Although defendant was on probation at the time he committed the crimes, the trial court relied on that fact to impose consecutive sentences on counts 2 and 3, and therefore cannot also rely on that fact to impose the upper term sentence. (Cal. Rules of Court, rule 4.425(b)(1).)
Because the upper term sentence in this case violates defendant’s Sixth Amendment right to have a jury determine all issues of fact (Cunningham, supra, 127 S.Ct. at p. 860) and that error is not harmless beyond a reasonable doubt (Sandoval, supra, 41 Cal.4th at p. 839), we must remand this matter to the trial court for resentencing.
DISPOSITION
Defendant’s sentence is vacated and that matter is remanded to the trial court for resentencing in accordance with Sandoval, supra, 41 Cal.4th at page 846, i.e., in accordance with the amendments to section 1170 adopted by the Legislature in Senate Bill No. 40 (stats 2007, ch. 3), and with directions that in resentencing defendant the trial court must stay execution of the sentence imposed on count 1. The judgment is affirmed in all other respects.
We concur: Hollenhorst Acting P.J., Richli J.