Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F01388
NICHOLSON , J.
A jury convicted defendants Allen Douglas Bomer and Walter Danny Ceasar of multiple robbery and assault counts, as well as other crimes, arising from a crime spree committed one night in Sacramento County.
On appeal, defendants contend that (1) two assault counts should be vacated because they are lesser included offenses of related robberies; (2) the trial court should have stayed the sentence for assault with a semiautomatic firearm; (3) the sentence for assault with a firearm was both illegal and incorrectly calculated; (4) the trial court violated their jury trial rights when it sentenced them to upper term and consecutive sentences; (5) there are errors in the abstracts of judgment; (6) the trial court erred by not defining “semiautomatic” for the jury; (7) the court erred by not instructing the jury on assault with a firearm as a lesser included offense of assault with a semiautomatic firearm; and (8) the cumulative effect of the instructional errors was prejudicial.
Each defendant joins the arguments of the other on appeal.
The only prejudicial error we find in the judgment is in the calculation of the term to be served for one of the crimes. We therefore modify defendants’ sentences to reflect the proper calculation and affirm the judgment as modified.
FACTS
Around 11:00 p.m., Brian Barnes was sitting in his parked car by a Papa John’s restaurant at the corner of Manzanita Avenue and Jameson Court in Carmichael. Barnes was listening to his car stereo, waiting for a friend who was working at the Papa John’s, when defendant Bomer, wearing a mask, walked up to the window on the passenger side of the car and tapped it with a gun, went around the car, asked Barnes for his wallet, and unsuccessfully tried to grab the keys from the ignition. Bomer then ordered Barnes to throw the keys on the back seat. Barnes complied, and Bomer then tried to take Barnes’s watch.
After Bomer failed to take the watch, he walked around and joined defendant Ceasar (also masked), who had been kneeling in front of Barnes’s car. Ceasar had a gun that looked like a cross between a pistol and a rifle. Defendants began to jog away, and Bomer turned around and fired a single shot in Barnes’s direction, piercing the car’s window on the passenger side.
After the shooting, the two men went around the side of the building, and Barnes lost track of them. Barnes immediately went inside the Papa John’s and an employee called 911 for him. The police arrived about 15 minutes later, and found a spent .22 caliber casing with a “C” head stamp in front of Barnes’s car.
About 30 minutes after the first robbery, defendants, again wearing masks, entered an open door at a Wienerschnitzel on Sunrise Boulevard near Madison Avenue in Citrus Heights. The restaurant was closing, and Pamela Krause was in the office counting receipts, while Eric DeGuzman was in the kitchen putting food away. Bomer and Ceasar were both armed.
Bomer put a gun to DeGuzman’s face and demanded the combination to the safe, saying, “This is not a game.” Krause heard the noise and came out of the office. She was immediately confronted with a gun pointed at her. After she complied with their demand to get down on her knees, Bomer repeatedly screamed at Krause to open the safe. Krause told him she only had the keys to the bathroom, and DeGuzman, who said that Krause did not have the combination for the safe, told them that Krause was only a shift leader.
Bomer hit DeGuzman twice in the back of his head with the gun, sending him to his knees. Bomer then shot DeGuzman in the thigh, and said, “If you say anything again, I’ll shoot you again.” Ceasar yelled, “Where is all the money?” Krause told defendants to push the “no sale” button on the register to open the cash drawer, but neither man did so.
Bomer asked Krause what was in the office, taking her by the ponytail and forcing her into the office. Defendants took currency and coins totaling over $800 and left the restaurant. Krause saw a white Lincoln Continental leave the parking lot and turn onto Sunrise Boulevard.
Sacramento County Sheriff’s Deputy Marc Warren was seated in his marked patrol car in the parking lot of a gas station across Sunrise Boulevard from the Wienerschnitzel. He observed defendants get out of a white Lincoln Mark VII parked in the Wienerschnitzel’s parking lot and run to the restaurant.
Defendants entered the door of the Wienerschnitzel, with Ceasar holding a rifle and Bomer carrying an object the deputy could not identify. Deputy Warren then made a robbery in progress call.
Defendants exited the building about 45 seconds later, with Ceasar carrying a rifle and Bomer carrying an item that was about 15 inches long. Defendants entered the car and drove south on Sunrise Boulevard with Deputy Warren following.
The Lincoln was pursued by patrol cars down Sunrise Boulevard, reaching speeds of 80 to 100 miles per hour. During the pursuit, a loaded sawed-off J.C. Higgins .22 caliber rifle was tossed from the passenger side window of the Lincoln. An officer stopped to retrieve the rifle, while the chase continued with the aid of more patrol units and a helicopter.
The chase, covering about 10 miles of running stop signs, red light violations, and speeding through residential districts, ended at Rockingham Drive and South White Rock Road in Rancho Cordova when the Lincoln stopped and defendants fled the vehicle. Bomer was spotted and arrested, while Ceasar ran in a different direction and was arrested later. The officers seized $370.50 in coins and currency from Bomer.
The Lincoln was searched and deputies found a loaded bolt-action gun with a spent shell casing in the chamber. The head stamp on the expended shell casing in the chamber of the bolt-action rifle matched the head stamp on a bullet found on the floorboard of the car. A latent print from the exterior passenger side matched Ceasar’s prints. Bomer’s driver’s license was found in the center console along with a purchase agreement in his name for the Lincoln.
An expert testified that the casing found at the Papa John’s shooting was fired from the rifle thrown from the Lincoln and that the rifle was a semiautomatic firearm.
At some point after his arrest, Bomer called his girlfriend and told her to get rid of his guns in the house. She complied, but when contacted by a deputy, she retrieved the weapons and turned them over to him. She also confirmed that Bomer had purchased a white Lincoln just before his arrest, and that defendants knew each other.
PROCEDURE
The jury found both defendants guilty of
Count one: robbery of Barnes (Pen. Code, § 211) with an enhancement for personal use of a firearm (Pen. Code, § 12022.53, subd. (b)); Count two: assault with a semiautomatic firearm on Barnes (Pen. Code, § 245, subd. (b)) with an enhancement for personal use of a firearm (Pen. Code, § 12022.5, subd. (a)); Count three: robbery of DeGuzman (Pen. Code, § 211), with an enhancement for personal use of a firearm (Pen. Code, § 12022.53, subd. (b)); Count four: robbery of Krause (Pen. Code, § 211), with an enhancement for personal use of a firearm (Pen. Code, § 12022.53, subd. (b)); Count five: assault with a firearm on DeGuzman (Pen. Code, § 245, subd. (a)(2)), with an enhancement for personal use of a firearm (Pen. Code, § 12022.5, subd. (a)); Count six: evading a peace officer while driving recklessly (Veh. Code, § 2800.2, subd. (a)); Count seven: being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)).
As to Bomer only, the jury found an additional count of being a felon in possession of a firearm. (Pen. Code, § 12021, subd. (a)(1); count eight.) The jury also found true two additional enhancements to counts three and four, as to Bomer: (1) he personally discharged a firearm (Pen. Code, § 12022.53, subd. (c)) and (2) he personally discharged a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)). Finally, as to Bomer, the jury found an additional enhancement on count five: personal infliction of great bodily injury. (Pen. Code, § 12022.7, subd. (a).)
Each defendant had a prior strike. (Pen. Code, § 667, subd. (a).)
The trial court sentenced Bomer to a term of 35 years eight months, plus 50 years to life, in state prison. It sentenced Ceasar to 55 years eight months in state prison.
The trial court made a mathematical error and stated that the total determinate term imposed was 37 years eight months. However, the sum of the determinate terms imposed was 35 years eight months.
DISCUSSION
I
Punishment for Lesser Included Offenses
Defendants contend that their convictions for assault with a firearm (counts two and five) must be reversed because these assaults were lesser included offenses of the robberies (counts one and three). They assert that, in determining whether the assaults with a firearm were lesser included offenses of the robberies, we must consider the enhancements to the robbery counts for personal use of a firearm. The California Supreme Court recently rejected similar assertions in People v. Sloan (2007) 42 Cal.4th 110 (Sloan) and the companion case People v. Izaguirre (2007) 42 Cal.4th 126 (Izaguirre).
A person cannot be convicted of both a greater offense and lesser included offense. (People v. Ortega (1998) 19 Cal.4th 686, 692.) The test for determining whether an offense is a lesser included offense for purposes of this rule is simply whether the greater offense cannot be committed without necessarily committing the lesser offense. (Ibid.) “In deciding whether multiple conviction is proper, a court should consider only the statutory elements. . . . ‘[O]nly a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.’ [Citation.].” (People v. Reed (2006) 38 Cal.4th 1224, 1229.) Therefore, we look to the statutory elements of the offenses and unless all of the statutorily required elements of the lesser are also statutorily required elements of the greater offense, it is not a lesser included offense for this purpose. (Id. at p. 1127.)
Assault with a firearm is not a lesser included offense of robbery under the statutory elements test “because a defendant can commit robbery without attempting to inflict violent injury, and without the present ability to do so, robbery does not include assault as a lesser offense.” (People v. Wolcott (1983) 34 Cal.3d 92, 100.) The addition of a firearm enhancement does not change the analysis because the enhancement does not create a new offense, but merely increases the punishment for the original crime. (Ibid.) Accordingly, assault with a firearm is not a lesser included offense of robbery with an enhancement for personal use of a firearm. (Ibid.)
Defendants argue, however, that Wolcott has been superseded by Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), as explained in People v. Seel (2004) 34 Cal.4th 535. To the contrary, in Sloan, supra, 42 Cal.4th 110 and Izaguirre, supra, 42 Cal.4th 126, the Supreme Court reexamined the authorities in this area in light of Apprendi and Seel. It reaffirmed that “enhancements may not be considered as part of the accusatory pleading for purposes of identifying lesser included offenses.” (Sloan, supra, at p. 114.) Accordingly, defendants’ contention that assault with a firearm is a lesser included offense of robbery when the robbery count has an associated firearm enhancement is without merit.
II
Consecutive Terms for Counts One and Two
Defendants make three assertions of error with respect to the trial court’s imposition of consecutive sentences on counts one and two for the robbery and assault with a semiautomatic firearm of Barnes at the Papa John’s Restaurant.
First, both defendants assert the evidence was insufficient to support a finding that they had independent objectives with respect to the two crimes. We disagree, consistent with the trial court’s finding that the assault constituted gratuitous violence unrelated to the objective of the robbery.
Second, Ceasar alone contends that, because he was criminally liable for aiding and abetting the assault of Barnes only under the natural and probable consequences doctrine as it related to the robbery of Barnes, he could not have had independent objectives with respect to those two crimes. We conclude that the evidence was sufficient to support the trial court’s finding that Ceasar had an independent objective in aiding and abetting the assault on Barnes, without resort to the natural and probable consequences doctrine.
And third, both defendants assert that their right to a jury trial was violated when the trial court made the factual findings necessary to impose consecutive sentencing. Relying on California Supreme Court precedent, we conclude that the trial court’s factual findings did not implicate defendants’ jury trial rights.
A. Gratuitous Violence
In making the determination that the sentences on counts one and two should be consecutive, the trial court stated that the assault was “separate and apart from the robbery, completely gratuitous. It was not for the purpose of effectuating the robbery.” The trial court therefore concluded that Penal Code section 654 did not prohibit separate and consecutive punishment for the robbery and assault of Barnes.
Under Penal Code section 654, a defendant may not be punished twice for a single act or an indivisible course of conduct. (Neal v. State of California (1960) 55 Cal.2d 11, 18-19.) If a defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) We review a challenge under Penal Code section 654 for substantial evidence to support the trial court’s determination. (People v. Osband (1996) 13 Cal.4th 622, 730.)
California courts have repeatedly held that gratuitous violence against a helpless, unresisting victim is not incidental to robbery for purposes of Penal Code section 654. (People v. Nguyen (1998) 204 Cal.App.3d 181, 190-191 [collecting cases]; People v. Cleveland (2001) 87 Cal.App.4th 263, 272 [gratuitous beating of elderly, nonresisting robbery victim was not carried out with same objective as the robbery].) “[A]t some point the means to achieve an objective may become so extreme they can no longer be termed ‘incidental’ and must be considered to express a different and a more sinister goal than mere successful commission of the original crime.” (People v. Nguyen, supra, at p. 191.)
Viewed in the light most favorable to the trial court’s sentencing decision, the evidence adduced at trial showed that Bomer fired a shot in Barnes’s direction as defendants were both leaving the scene of the robbery. As the trial court noted, the shooting was not done to effectuate the robbery. The evidence was therefore sufficient to support consecutive sentencing.
B. Natural and Probable Consequences Doctrine
Ceasar contends that he could not be sentenced to a consecutive term for the assault with a semiautomatic firearm against Barnes (count two) because, under the theory presented to the jury, he was guilty of that assault only because it was the natural and probable consequence of the robbery of Barnes. Therefore, he argues, he did not have a separate objective with respect to the assault.
“The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466, italics added.) “[I]n determining whether Penal Code section 654 applies, the trial court is entitled to make any necessary factual findings not already made by the jury.” (People v. Centers (1999) 73 Cal.App.4th 84, 101.)
Although this precedent holds that the trial court makes the findings based on substantial evidence, a case decided by the Second Appellate District, Division Seven, of the Court of Appeal has held that, if the jury relied on the natural and probable consequences doctrine to find a defendant guilty on an aiding and abetting theory, the trial court could not sentence the defendant consecutively for the two crimes (the target crime and the crime that was the natural and probable consequence) because the defendant did not have a separate objective in aiding and abetting the second crime. (People v. Bradley (2003) 111 Cal.App.4th 765 (Bradley).)
The Attorney General responds to this contention, primarily, by asserting that Bradley was wrongly decided. We need not decide whether Bradley was wrongly decided because the jury here was instructed concerning general principles of aiding and abetting in addition to the instructions concerning the natural and probable consequences doctrine. Since the evidence was sufficient to conclude, without resort to the natural and probable consequences doctrine, that Ceasar aided and abetted Bomer in the assault of Barnes with a semiautomatic firearm and did so with an objective independent of the robbery, we conclude the evidence supports the trial court’s imposition of a consecutive sentence for the assault.
In Bradley, a defendant was convicted of robbery and attempted murder as an aider and abettor. She had entered into a scheme with two men to lure a wealthy-looking individual to a location where the men could rob him. After luring the victim to the location, the defendant waited in another car while the others robbed him. The victim was beaten and shot during the robbery. Finding that the robbery and attempted murder offenses had different objectives, the trial court sentenced the defendant to consecutive terms. (Bradley, supra, 111 Cal.App.4th at pp. 767-768.) The Court of Appeal, however, concluded that the trial court erred by sentencing consecutively because the evidence supported a finding that the defendant had only one criminal objective -- to rob the victim. The court said: “[S]he was unaware that the second crime was occurring until after it was completed and thus didn’t have an opportunity to prevent or even protest its commission. As a result, there simply was no evidence [she] exhibited the more dangerous mental state warranting a consecutive sentence under . . . [Penal Code section] 654.” (Bradley, supra, at p. 771.)
Here, the trial court gave the jury the standard instructions on aiding and abetting and did not limit the application of those instructions to any particular count. The court stated: “To prove that a defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that the perpetrator committed the crime, the defendant knew that the perpetrator intended to commit the crime, before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime, and the defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.” The court also instructed: “If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abetter [sic]. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not by itself make him and [sic] aider and abetter [sic].”
After the trial court completed the standard aiding and abetting instructions, it further instructed the jury concerning the natural and probable consequences doctrine: “To prove that a defendant is guilty of an assault upon Brian Barnes with an semiautomatic firearm as charged in Count Two . . ., the People must prove that . . . a defendant is guilty of robbery and the allegations contained in . . . Count Two . . . and . . . under all of the circumstances a reasonable person in the defendant’s position would have known that the commission of the crime[] as charged in Count[] Two . . . [is] a natural and probable consequence of the commission of the robber[y] and the allegations charged in Count[] One . . . .”
To maintain his argument that the trial court could not sentence Ceasar consecutively for the assault with a semiautomatic firearm, Ceasar argues in his supplemental opening brief that “Ceasar was found guilty of the assault only on a theory of natural and probable consequences, and there was no showing that he intended the result charged in count 2.” The record does not support this assertion.
The jury was instructed concerning aiding and abetting, not just with the natural and probable consequences doctrine, but also in the situation in which the defendant aids and abets while sharing the perpetrator’s intent with respect to each crime. Therefore, the jury did not necessarily rely on the natural and probable consequences doctrine when it found Ceasar guilty of aiding and abetting Bomer’s assault on Barnes with a semiautomatic firearm.
Ceasar asserts that the prosecutor relied on the natural and probable consequences doctrine when it argued the case to the jury. While it is true that the prosecutor argued that the assault on Barnes was a natural and probable consequence of the robbery of Barnes, neither the jury nor the trial court was bound by what the prosecutor argued. As the trial court instructed the jury, “Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discussed the case, but their remarks is [sic] not evidence.”
The evidence presented to the jury and relied upon by the trial court to impose consecutive sentences was sufficient to sustain the finding that Ceasar entertained independent criminal objectives with respect to the robbery of Barnes and the assault of Barnes with a semiautomatic firearm. As shown by the number of criminal acts the two committed together, from their robbery and assault of Barnes at the Papa John’s Restaurant to their robbery and assault at the Wienerschnitzel, Ceasar and Bomer had more than one criminal objective in mind when they combined their efforts on that day. Considering the entire crime spree, the jury and the court could conclude that Ceasar and Bomer had a shared intent to commit separately each crime. Ceasar was himself armed and did nothing to prevent Bomer from assaulting Barnes. It was reasonable to infer that Ceasar shared Bomer’s intent and independent objective.
This evidence is sufficient to sustain the trial court’s imposition of consecutive sentences without resort to the natural and probable consequences doctrine. Therefore, because (1) it was the trial court’s province to make the factual finding concerning whether it could impose consecutive sentences and (2) the evidence was sufficient to sustain the trial court’s conclusion that Ceasar’s objectives in aiding and abetting the Barnes robbery and aiding and abetting the Barnes assault were independent, Ceasar’s contention that we must reverse the imposition of consecutive sentencing is without merit.
C.Apprendi
Defendants contend that, in making the factual determination that the crimes in counts one and two involved separate objectives, the trial court violated their jury trial rights pursuant to Apprendi, supra, 530 U.S. 466. The contention fails because consecutive sentencing does not implicate a defendant’s jury trial rights.
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court held for a second time that the determination whether two or more sentences should be served consecutively 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.’” (Id. at p. 823, quoting from People v. Black (2005) 35 Cal.4th 1238, 1264 (Black I).) The Supreme Court continued: “Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (Black II, supra, 41 Cal.4th at p. 823.)
III
Sentencing on Count Five
Defendants make two contentions with respect to the trial court’s consecutive sentencing on count five, assault with a firearm on Eric DeGuzman.
First, defendants contend the trial court erred in calculating the term for count five. We agree and modify their sentences.
And second, similar to the argument discussed in part II, above, they argue that the record does not support a finding that defendants had independent objectives with respect to the robbery and assault of Eric DeGuzman. We conclude the evidence supports the trial court’s factual findings.
A. Calculations on Count Five
1. Bomer’s Count Five Sentencing
On count five, the jury found Bomer guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with findings that, in the commission of the crime, Bomer personally used a firearm (Pen. Code, § 12022.5, subd. (a)) and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). Following the recommendation of the probation report, the trial court calculated Bomer’s term on count five as follows: six years (the middle term of three years, doubled pursuant to Penal Code section 667, subdivision (e)(1)), plus four years for the firearm use (the middle term), plus three years for the great bodily injury (which is the only prescribed term in Penal Code section 12022.7, subdivision (a)), for a total term of 13 years. Instead of staying the sentence as recommended by the probation report, the trial court imposed a consecutive sentence, one-third of the middle term, pursuant to Penal Code section 1170.1, subdivision (a). In imposing the sentence, however, the trial court incorrectly calculated the term, stating that one-third of 13 years was five years four months, when it is actually four years four months.
The proper calculation for Bomer’s consecutive sentencing on count five is as follows: two years (one-third of the middle term, doubled pursuant to Penal Code section 667, subdivision (e)(1)), plus one year four months for the firearm use (one-third of the middle term), plus one year for the great bodily injury (one-third of the prescribed term) for a total term of four years four months.
The abstract of judgment reflects a total term of seven years eight months for count five. The trial court is directed to amend the abstract of judgment to reflect a total term of four years four months, as detailed above.
Bomer contends that we must remand to impose a lawful sentence. The Attorney General does not respond to Bomer’s contention concerning the proper calculation of the sentence. We conclude that we need not remand but, instead, can simply modify the sentence to correct the court’s mathematical error. We therefore will reduce Bomer’s determinate sentence for count five by one year, to four years four months.
2. Ceasar’s Count Five Sentencing
Ceasar makes the same contention concerning sentencing on count five. In doing so, however, he incorrectly refers to Bomer’s sentencing, not his own, which was different. In his supplemental briefing, Ceasar corrects this mistaken reference. We conclude that the trial court made a mathematical error, though a different one, in sentencing Ceasar on count five.
It appears that Ceasar’s first appellate attorney, Alan S. Yockelson, since relieved as counsel, simply copied the brief prepared by counsel for Bomer.
On count five, the jury found Ceasar guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with a finding that, in the commission of the crime, Ceasar personally used a firearm (Pen. Code, § 12022.5, subd. (a)). Unlike for Bomer, there was no additional finding that Ceasar personally inflicted great bodily injury. The recommendation in the probation report calculated Ceasar’s term on count five as follows: six years (the middle term of three years, doubled pursuant to the “Three Strikes” law), plus four years for the firearm use (the middle term), for a total term of 10 years. The probation report further recommended that the term be stayed.
Instead of staying the sentence as recommended by the probation report, the trial court imposed a consecutive sentence. In doing so, however, the trial court failed to make the proper calculations. It stated, as to count five: “Defendant will be committed for three years and, in addition, the middle term pursuant to the 12022.5(a) is going to be imposed for a total of five years and four months also to be served consecutive[ly].”
The proper calculation for Ceasar’s consecutive sentencing on count five is as follows: two years (one-third of the middle term, doubled pursuant to Penal Code section 667, subdivision (e)(1)), plus one year four months for the firearm use (one-third of the middle term), for a total term of three years four months, not five years four months. We will modify the judgment as to Ceasar by subtracting two years from the determinate term to reflect this correction.
B. Factual Support for Consecutive Sentencing
Defendants contend that the evidence does not support the factual findings necessary to impose consecutive sentencing on count five, relating to the assault with a firearm on DeGuzman at the Wienerschnitzel. As did the trial court, we conclude that the assault with a firearm on DeGuzman was “separate and apart from the robbery, completely gratuitous. It was not for the purpose of effectuating the robbery.” And, therefore, consecutive sentencing was appropriate.
The law pertaining to this contention is summarized in part II(a), above.
When defendants entered the Wienerschnitzel and drew their firearms, DeGuzman made no attempt to resist. He complied with their demands. Bomer shot DeGuzman after DeGuzman stated that Krause could not open the safe. This shooting did nothing to further the cooperation of the already compliant victim. Accordingly, the evidence was sufficient to conclude that defendants employed gratuitous violence against a helpless, unresisting victim and, therefore, the assault is not incidental to robbery for purposes of Penal Code section 654.
Defendants also repeat their contention that the consecutive sentencing violated their jury trial rights. We reject this contention for the reasons stated in part II(c).
IV
Right to Jury Trial on Sentencing Issues
Defendants contend that the imposition of consecutive and upper term sentences violated their jury trial rights, citing Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] and Apprendi, supra, 530 U.S. 466. Finding no reversible error, we reject the contentions.
In Black I, the California Supreme Court rejected contentions that the imposition of upper or consecutive terms under California’s determinate sentencing law violated the rule of Blakely. (35 Cal.4th at pp. 1244, 1254-1255, 1261-1263.) The United States Supreme Court recently overruled Black I as it applied to the procedure for imposing upper term sentences in California. (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 864] (Cunningham).)
The trial court imposed upper term sentences in the principal terms for both defendants. The trial court based the decision to impose the upper term on each defendant’s (1) violent conduct and (2) prior convictions.
A defendant’s jury trial rights do not extend to the use of prior convictions to increase the penalty for a crime. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455; Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 869].) One valid aggravating factor is sufficient to expose defendant to the upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)
In imposing the upper terms for both defendants, the trial court stated that their prior convictions, alone, were sufficient grounds for imposition of the upper term without consideration of any other aggravating factor. Therefore, any error in considering the fact that defendants engaged in violent conduct was harmless beyond a reasonable doubt. (See Washington v. Recuenco (2006) 548 U.S. __, __ [165 L.Ed.2d 466, 473, 476-477].)
V
Abstract of Judgment
As rendition of judgment is the oral pronouncement reflected in the reporter’s transcript, the abstract cannot add to or modify the judgment which it purports to summarize. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Bomer correctly notes an error in the abstract of judgment. The trial court imposed a one-year four-month term for the gun use allegation in count two. The abstract incorrectly reflects this enhancement as two years eight months. We also note that the determinate term on Bomer’s abstract must be amended to reflect the corrections to the sentences discussed in part III, above. Accordingly, we will order the trial court to correct the abstract of judgment to reflect the judgment as rendered by the trial court, subject to the corrections discussed in this opinion.
VI
Instruction on Assault with Semi-Automatic Firearm
Defendants were convicted in count two of assault with a semiautomatic on Brian Barnes. The trial court instructed the jury concerning the elements of assault with a semiautomatic firearm but did not define the term “semiautomatic.” On appeal, defendants contend that the failure to instruct concerning the definition of “semiautomatic” was prejudicial error. We conclude that, even assuming the trial court erred by not defining “semiautomatic,” any error in not defining the term was harmless.
Defendants did not request an instruction defining “semiautomatic” and there is no CALJIC or CALCRIM instruction defining the term. But we do not view these circumstances as determinative ones in deciding this issue.
“‘[T]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. . . .’ [Citations.] [¶] The rule to be applied in determining whether the meaning of a statute is adequately conveyed by its express terms is well established. When a word or phrase ‘“is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.”’ [Citations.] A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citations.] . . . [T]erms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance. [Citation.]” (People v. Estrada (1995) 11 Cal.4th 568, 574-575, italics in original.)
We cannot reverse based on a trial court’s failure to define a term such as “semiautomatic” unless the error contributed to the verdict. “An instruction that omits a required definition of or misdescribes an element of an offense is harmless only if ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”’ [Citations.] ‘To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 774.)
It is indisputable that a firearm of some kind was used in the assault on Barnes because Barnes was shot at. A single .22 caliber casing was recovered from the area, and that casing was fired from a .22 caliber firearm later discarded by defendants while they were being chased. A firearms expert testified that (1) the casing was fired from the noted firearm and (2) the noted firearm was a semiautomatic firearm. Since (1) there was no other casing found, (2) there was no indication that any firearm other than the firearm that expended the casing was used to assault Barnes, and (3) the firearm that expended the casing was, according to the expert, a semiautomatic firearm, the failure to define the term “semiautomatic” for the jury was harmless beyond a reasonable doubt.
Defendants urge us, however, to speculate that, despite this strong, even uncontradicted evidence, they may not have used a semiautomatic firearm when assaulting Barnes. Ceasar argues that the evidence was circumstantial. He continues: “Several inferences had to be made. Mr. Barnes only heard one shot, not several in rapid succession. Not much was said about the nature of the bullet. Firearms were present, both semiautomatic and non-semiautomatic. The cartridge could have been dropped by one of the defendants rather than shot from the weapon.” (Record citations omitted.) While it is true that it was necessary to draw inferences, as Ceasar notes, it would have been unreasonable for the jury to conclude that the semiautomatic firearm was not used to assault Barnes.
This conclusion, that it would have been unreasonable for the jury to conclude that the semiautomatic firearm was not used to assault Barnes, is also relevant to the next contention, that the trial court erred by not instructing on the lesser included offense of assault with a firearm.
Defendants also claim that, in describing the operation of the firearm, the expert did not use the statutory definition of a semiautomatic firearm, which states that the firearm “uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger.” (Pen. Code, § 12126, subd. (e).) To the contrary, the expert described the function of the firearm, including firing, expending the cartridge, and chambering a new cartridge, all in one explosive action, and referred to the firearm as a semiautomatic firearm. Using the exact statutory wording was unnecessary.
The trial court therefore did not prejudicially err in not defining “semiautomatic” for the jury.
VII
Instruction on Lesser Included Offense
Defendants assert that the trial court erred by not instructing the jury on the lesser included offense of assault with a firearm, as it relates to count two, assault with a semiautomatic firearm. We conclude that the trial court did not err because it would have been unreasonable for the jury to find that defendants assaulted Barnes with a firearm, but not a semiautomatic firearm.
A trial court must instruct on all necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) The lesser offense must be necessarily included as a matter of law, considered in the abstract. (People v. Steele (2000) 83 Cal.App.4th 212, 218.) An offense is necessarily included if either the elements of the greater offense (elements test), or the allegations in the accusatory pleading (accusatory pleading test), are such that the lesser offense is necessarily committed if the greater offense is committed. (People v. Birks (1998) 19 Cal.4th 108, 117.)
This obligation has been held to include giving instructions sua sponte on lesser included offenses when the evidence raises a question whether all of the elements of the charged offense are present. (People v. Breverman, supra, at p. 154.) There is no duty to instruct on the lesser included offense when “there is no evidence that the offense was less than that charged." (Ibid.) “‘[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction’ [citation]” (People v. Kaurish (1990) 52 Cal.3d 648, 696, italics in original), and the mere speculation that the crime was less than that charged is insufficient to trigger the duty to instruct (see People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1).
As noted in part VI, there is nothing but speculation to support a finding that the firearm used in the assault on Barnes was not a semiautomatic firearm. Accordingly, the trial court did not have a duty to instruct the jury, sua sponte, concerning the lesser offense of assault with a firearm.
VIII
Cumulative Prejudice
Defendants contend that the cumulative effect of the two asserted instructional errors requires reversal. Because we find that the trial court did not err by not instructing the jury concerning the lesser included offense of assault with a firearm, there was, at most, one instructional error and, therefore, no cumulative effect of error.
DISPOSITION
Bomer’s sentence is modified to a determinate term of 34 years eight months, plus an indeterminate term of 50 years to life, in state prison.
Ceasar’s sentence is modified to a determinate term of 53 years eight months, in state prison.
As modified, the judgments are affirmed.
The trial court is directed to prepare amended abstracts of judgment accurately reflecting the sentences imposed by the trial court, as modified on appeal, and to forward the amended abstracts to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND , P.J., SIMS , J.