Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA350516 Larry P. Fidler, Judge.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant Arthur Brown (defendant) was convicted of attempted murder (Pen. Code, § 664/187, subd. (a) ), assault with a firearm (§ 245, subd. (a)(2)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). On appeal, defendant contends that the trial court erred by admitting into evidence the testimony of two officers that the victim was reluctant to talk to them, and the opinion testimony of the prosecution’s gang expert that defendant acted with the intent to kill. Defendant also contends that the trial court erred in sentencing him. We affirm the judgment, but modify defendant’s sentence and remand in part for resentencing.
All statutory citations are to the Penal Code unless otherwise noted.
BACKGROUND
Defendant did not offer any evidence in his defense.
1. The Crime
Lafaye Monique Sparks (Monique) was associated with the Hoovers gang, and she testified at trial that she was a “gangbanger.” On November 21, 2007, Damon Barney was killed. Barney and defendant were both members of a street gang known as 9-Deuce, a subset of the Hoovers gang. Kevin Patton was a suspect in Barney’s murder. Monique had two children with Patton. Monique told a police officer during the murder investigation that Barney once punched her daughter.
Monique testified that on October 7, 2008, she celebrated “hood day”—a party for the street gang known as 107, also a subset of the Hoovers gang. Monique testified that she had consumed alcohol and smoked “a little” marijuana that day. As part of the celebration, Monique went to a club in Los Angeles. She left the club with her sister, Laretha Sparks (Laretha), and a friend. At approximately 1:30 a.m. on October 8, 2008, as Monique was about to enter her friend’s car, a car pulled up and someone got out. Monique was shot twice in the back. Monique testified that although she saw the person get out of the car, she did not see the person who shot her. She believed, however, that the person who got out of the car, who was approximately 13 feet away from her, was the shooter.
Laretha had associated with the 107 gang “for a long period of time.”
Monique did not identify defendant at trial as the person who shot her. She testified that she could not recall very much of the incident because she was “under the influence.” Monique knew defendant, who is referred to as C.C., from his presence in the neighborhood. Monique testified that defendant was “most likely” associated with a subset of the Hoovers gang.
Monique testified at trial that she told the prosecutor that she did not want to testify. She did not want to testify because “God spared my life, and I’m here and that’s all, and I got to live for my kids.” Los Angeles Police Department Detective Patrick Flaherty testified that he had attempted to locate Monique to testify at the preliminary hearing but could not find her.
Laretha testified that the shooter was a Black male, but she did not recognize him. Laretha was not wearing her glasses, which she testified might have caused her not to be able to recognize the shooter. Laretha did not recall telling an investigating police officer that Monique identified the shooter. She remembered that prior to the shooting somebody said, “Bitch, I told you.”
Monique went to the hospital to receive treatment for her wounds. Detectives Flaherty and Los Angeles Police Department Detective Alex Jacinto spoke with Monique at the hospital. Within an hour after Monique was shot, she identified defendant as the shooter in a photographic lineup. Detective Jacinto testified that Monique told him that “C.C. from Hoovers” had shot her. Monique testified that she did not recall telling Detective Jacinto that C.C. from Hoovers was the shooter because she had “kinda been drinking, ” had been shot, and was in pain. Monique testified that there was “a possibility” that she told Detective Jacinto that she believed that she had been shot because of “what happened” to Barney—presumably being killed by Patton, the father of her children.
Monique testified that she told Detective Flaherty that she did not know who shot her. Monique testified that there may be “a couple” of persons who are called “C.C., ” but “for certain” defendant’s brother was called “Baby C.C.” Monique later testified that she told Detective Flaherty that it was defendant, and not his brother Baby C.C., who shot her.
Monique testified that after she was released from the hospital she told Laretha that she thought she had seen the person who shot her, and she “probably” told Laretha that it was “C.C. from 9-Deuce.” Monique told Laretha “something like” Monique had seen C.C. from 9-Deuce or looked at him in the eyes and therefore she was able to identify him as the person who shot her.
Los Angeles City Police Department Officer Samuel Marullo testified that he had been a police officer for 13 years and was a senior officer in a gang enforcement detail. He investigated Barney’s murder. Officer Marullo interviewed Monique who told him that Barney punched her daughter in the face. As a result of Officer Marullo’s investigation, Patton was charged with Barney’s murder.
Officer Marullo testified that retaliation is common in gang-related cases. If a member from one gang shoots a member of another gang, the shooter’s fellow gang members and the shooter’s family members would be possible targets for retaliation. He also opined that Monique would be a target for retaliation because Patton allegedly murdered Barney and Monique had a close relationship with Patton.
Deputy Sheriff Elizario Perez testified that he worked at the Men’s Central Jail and that conversations between inmates and visitors to the jail are sometimes surreptitiously recorded. Defendant was an inmate at the jail. A recording of a conversation between defendant and a visitor was played for the jury and a transcript of the conversation was admitted into evidence. During the conversation defendant told the visitor that defendant had spoken to a member of the 107 gang and that defendant said he was a member of the 9-Deuce gang. Defendant told the visitor that defendant advised the 107 gang member that “they call me Little CC.” (Defendant is otherwise referred to “C.C.” and his brother as “Little C.C.”) Defendant stated that the 107 gang member asked him, “You the one that did Mo, huh?” Deputy Perez testified that based upon his experience with gangs “You the one that did Mo, huh?” meant “you’re the one that shot or killed” Mo. Defendant responded, “Yeah, ” and said “Hey, she got the homie, she got the homie done, so you know....” Deputy Perez testified that “she got the homie, she got the homie done” meant “she’s responsible for the death of one of the homies.”
Monique is known as “Mo.”
Six days after the shooting, Detective Flaherty interviewed Laretha. Laretha told Detective Flaherty that Monique “looked [the shooter] in the eyes” and that Monique knows who shot her. A custodian of records from Sprint Nextel Communications testified that based on defendant’s cellular telephone records, telephone calls were made on defendant’s cellular telephone between 9:09 p.m. and 11:38 p.m. on October 7, 2008, and they were made in an area that included the location of the shooting.
Los Angeles Police Department Detective Melvin Hernandez testified as the prosecution’s gang expert. Detective Hernandez had been a sworn police officer for 13 years, and for much of that time his assignments concentrated on criminal gangs, including the Hoovers gang and its subsets 9-Deuce and 107. He testified that acts of retaliation frequently occur as part of gang culture. If a gang feels “disrespected” it is incumbent on the gang members to retaliate so that the gang is not perceived as weak. Based upon defendant’s recorded statements, Detective Hernandez opined that defendant was a member of the 9-Deuce gang.
The prosecutor asked Detective Hernandez to assume, hypothetically, facts closely tracking the evidence concerning the shooting of Monique. Based on those facts, Detective Hernandez opined that the shooter committed the crime for the benefit of, at the direction of, or in association with a criminal street gang. Detective Hernandez explained that the shooter was acting in retaliation with an intent to kill.
B. Procedural Background
The District Attorney of Los Angeles County filed an amended information charging defendant in count 1 with attempted murder, in violation of sections 664 and 187, subdivision (a), in count 2 with assault with a firearm, in violation of section 245, subdivision (a)(2), and in count 3 with possession of a firearm by a felon, in violation of section 12021, subdivision (a)(1). The District Attorney alleged as to counts 1 and 2 that the offense was committed by defendant for the benefit of and at the direction of, and in association with a criminal street gang with the intent to promote criminal conduct by gang members within the meaning of section 186.22, subdivisions (b)(1)(c) and (b)(4). It was also alleged as to count 1 that defendant used a handgun within the meaning of section 12022.53, subdivisions (b) through (d). It was further alleged that as to count 2 defendant personally used a firearm within the meaning of sections 12022.5, 1192.7 subdivision (c), and 667.5, subdivision (c). The District Attorney also alleged as to all counts that defendant suffered two prior serious or violent felony convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), one prior serious felony conviction (§ 667, subd. (a)(1)), and two prior prison terms within the meaning of section 667.5, subdivision (b).
Following a bifurcated trial, the jury found defendant guilty on all counts. The jury also found the gang enhancement, use of a handgun, and discharging a handgun causing great bodily injury allegations true. The trial court found the prior convictions and prison term allegations true. The trial court sentenced defendant to 80 years to life in state prison on count one, consisting of 45 years to life as the base term pursuant to sections 186.22, subdivision (b)(5) and 667, subdivision (e), 25 years to life pursuant to section 12022.53, subdivision (d), and 10 years pursuant to section 667.5. The trial court stayed the sentence on counts two and three—25 years to life is state prison on each count.
DISCUSSION
1. The Alleged Errors in Admitting Into Evidence The Testimony of Detectives Flaherty, Jacinto, and Hernandez
Defendant contends that the trial court erred by admitting into evidence the testimony of Detectives Flaherty and Jacinto that Monique was reluctant to talk to them because such evidence was improper opinion evidence based on speculation. Defendant also contends that the trial court erred by admitting into evidence Detective Hernandez’s improper expert opinion testimony that defendant intended to kill Monique. The trial court did not abuse its discretion in admitting into evidence the testimony of Detectives Flaherty and Jacinto and, even if it did, it was harmless error. The trial court erred in admitting into evidence the testimony of Detective Hernandez, but it was harmless error.
1. Standard of Review
“A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 ; People v. Ledesma (2006) 39 Cal.4th 641, 705.)
2. The Testimony of Detectives Flaherty and Jacinto
The prosecutor asked Detective Flaherty, “[W]as there anything about your interview with [Monique about the shooting] that led you to a conclusion that she was having a difficult time recalling what had occurred? And I am distinguishing that from not wanting to cooperate.” Defendant’s counsel objected it was irrelevant and called for speculation. The trial court stated, “Overruled. If there is a basis for it. Until he answers, I won’t know.” Detective Flaherty responded, “It appeared more reluctancy to cooperate than it did recalling the events of what happened that night.” The trial court denied defendant’s counsel motion to strike the testimony.
Detective Jacinto testified on cross-examination that he told Detective Flaherty that Monique initially told Detective Jacinto that the shooter “looked like” C.C. from the Hoovers gang. Detective Jacinto explained that “throughout the investigation... [Monique] came forth and told me that it was C.C. from Hoovers.” On redirect examination, the prosecutor asked Detective Jacinto, “[Monique] told you both? Detective Jacinto responded, “Yes, she did, sir.” The prosecutor asked Detective Jacinto, “What do you mean by that? Can you explain?” Without objection by defendant’s counsel, Detective Jacinto testified that “during the initial interview [about the shooting] when talking to [Monique], she was hesitant. We waited to talk to her, you know, gain her trust. Initially, she said it looked like C.C. from Hoovers. Looked like. [¶] Upon further investigation... she told me that it was C.C. from Hoovers.” The prosecutor asked Detective Jacinto, “So, she went from, you said, being hesitant?” Detective Jacinto responded, “Correct, Sir.” The prosecutor then asked Detective Jacinto, “Would you also describe that as reluctant?” Detective Jacinto responded, “Yes sir.”
i. Forfeiture
Respondent argues that defendant forfeited his contention that the trial court erred in admitting into evidence Detective Jacinto’s testimony because defendant did not object to the evidence. Defendant contends that he did not forfeit the contention because the objection would have been futile. Defendant argues an objection would have been futile because the trial court had overruled defendant’s previous objections to Detective Flaherty’s testimony that Monique was reluctant to speak with him about the shooting.
Our Supreme Court in People v. Dykes (2009) 46 Cal.4th 731 stated, “[N]umerous decisions by this court have established the general rule that trial counsel’s failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal.” (Id. at p. 756.) However, “[a] litigant need not object... if doing so would be futile.” (People v. Wilson (2008) 44 Cal.4th 758, 793.) We do not have to decide this issue because even assuming the issue been preserved, as discussed post the claim fails on its merits.
As relevant to Detective Jacinto’s testimony, defendant contends, “In the event that this Court determines more specific objections were necessary, in an abundance of caution, [defendant] submits that he received ineffective assistance of counsel.” As we do not determine whether there was a forfeiture, we do not have to reach this issue.
We note that we generally do not determine the claim of ineffective assistance of counsel on appeal because it is a claim more appropriately raised by a petition for a writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [“We have repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[, ]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ” the claim on appeal must be rejected’”]; People v. Tafoya (2007) 42 Cal.4th 147, 196, fn. 12 [“a claim of ineffective assistance of counsel is more appropriately raised in a petition for writ of habeas corpus [citation], where ‘relevant facts and circumstances not reflected in the record on appeal, such as counsel’s reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-pronged inquiry of whether counsel’s “representation fell below an objective standard of reasonableness, ” and whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”’”].)
ii. Admissibility of the Testimony of Detectives Flaherty and Jacinto
“[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.” (Evid. Code, § 702.) “This means witnesses can generally testify only about things they have personally seen or heard of the matter. [Citation.]” (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2010) ¶ 8:255, p. 8C-12 (rev. # 1, 2007).)
In People v. Chatman (2006) 38 Cal.4th 344, a witness at trial testified that he observed the defendant kick a high school custodian four or five times. The prosecutor asked whether defendant “seemed to be enjoying it, ” and the witness responded, “Yeah.” (Id. at p. 397.) The trial court overruled the defense counsel’s objections that the answer was speculation, irrelevant, and inadmissible under Evidence Code section 352. (Ibid.) The court stated, “Although defendant contends the court erred in overruling the objection, the court acted within its discretion. [Citation.]... Because the witness was a percipient witness, he spoke from personal observation. He was competent to testify [about] defendant’s behavior and demeanor....” (Ibid.)
The court also stated that although defendant did not object on the ground that the testimony was improper opinion evidence, “[s]uch an objection would have failed.” (People v. Chatman, supra, 38 Cal.4th at p. 397.)
Detectives Flaherty and Jacinto do not testify that it is their expert opinion that Monique was reluctant. Their testimony can reasonably be construed that they were stating their personal observations of Monique, and not what Monique was actually thinking. In response to the prosecutor’s question regarding whether there was “anything about your interview with [Monique] that led you to a conclusion” that she was having a difficult time recalling what had occurred as opposed to her not wanting to cooperate, Detective Flaherty responded that “[i]t appeared” that Monique was reluctant to cooperate. Similarly, Detective Jacinto’s testimony can reasonably be construed to state that Monique appeared to be reluctant. The detectives’ testimony was a description of Monique’s demeanor—that she appeared to be reluctant—which they personally observed during the respective interviews.
Defendant cites People v. Sergill (1982) 138 Cal.App.3d 34, 38 for the proposition that it is error for a trial court to admit into evidence expert witness testimony that he “had arrive[d] at the truth.” This case is distinguishable. Unlike People v. Sergill, the challenged testimony here was percipient witness testimony and did not concern expert opinion testimony. In addition, the detectives here did not testify that they had arrived at the truth during their investigation. They testified instead that Monique appeared to be reluctant to speak with them about the shooting. The trial court did not abuse its discretion in admitting into evidence the testimony of Detectives Flaherty and Jacinto.
Assuming, arguendo, that the trial court erred in admitting into evidence the testimony of Detectives Flaherty and Jacinto, it was harmless error. Under People v. Watson (1956) 46 Cal.2d 818, the erroneous admission of evidence generally requires reversal of the judgment only if there is a reasonable probability that absent the error defendant would have obtained a more favorable result. (Id. at p. 836; People v. O'Shell (2009) 172 Cal.App.4th 1296, 1310, fn. 11.) Defendant contends however that the trial court’s error violated his rights under the compulsory process and confrontation clauses of the Sixth Amendment and the due process clause of the Fourteenth Amendment of the United States Constitution. Defendant therefore contends that the standard for harmless error under Chapman v. California (1967) 386 U.S. 18, 24—the error must be harmless beyond a reasonable doubt—applies. However, under either standard, the error was harmless.
Apart from the detectives’ testimony, there was substantial evidence from which a reasonable juror could have concluded that Monique was reluctant to identify defendant as the person who shot her. Defendant does not contend otherwise. Monique told the prosecutor that she did not want to testify. Detective Flaherty also testified that he had attempted to locate Monique to testify at the preliminary hearing but he could not find her. At trial Monique recanted her pre-trial identification of defendant as the shooter.
In addition, the record provides that Barney had been killed and Patton was a suspect in his murder. Monique testified that she had two children with Patton and she told a police officer during the murder investigation that Barney punched her daughter. Officer Marullo testified that Barney was a member of a street gang known as 9-Deuce. Detective Hernandez opined that defendant was also a member of the 9-Deuce gang, and Monique testified that she knew that defendant was probably associated with a gang. Detective Hernandez and Officer Marullo testified that acts of retaliation frequently occur as part of gang culture, and Officer Marullo testified that Monique would be a target for retaliation because Patton allegedly murdered Barney and Monique had a relationship with Patton. Monique testified that she may have told Detective Jacinto that she believed that she had been shot because of “what happened” to Barney. Based on such evidence a juror reasonably could have inferred that Monique was reluctant to identify defendant as the person who shot her.
Defendant argues the detectives’ testimony that Monique was reluctant to identify defendant negatively affected his ability to argue effectively that there was a reasonable doubt whether he was the person who shot Monique. As noted above, there was substantial evidence that Monique was reluctant to testify against defendant without the detectives’ challenged testimony. In any event, there is also substantial evidence from which a reasonable juror could have concluded that defendant was the person who shot Monique.
Within an hour after Monique was shot, she identified defendant as the shooter in a photographic lineup. Detective Jacinto testified that he spoke with Monique at the hospital and she told him that “C.C. from Hoovers” had shot her. Monique told Detective Flaherty that it was defendant, and not his brother, Baby C.C., who shot her. Monique testified that it was possible that she told Detective Jacinto that she believed that she had been shot because of “what happened” to Barney.
Monique testified that she told Laretha that she thought she had seen the person who shot her, and she probably told Laretha that it was “C.C. from 9-Deuce.” Monique further testified that she told Laretha that Monique had seen C.C. from 9-Deuce or looked at him in the eyes and therefore she was able to identify him as person who shot her.
During a recorded conversation between defendant and a visitor to the Men’s Central Jail, defendant told the visitor that a 107 gang member asked defendant, “You the one that did Mo, huh?” Deputy Perez testified that “You the one that did Mo, huh?” meant “you’re the one that shot or killed” Mo. Defendant told the visitor that he responded, “Yeah, ” and said “Hey, she got the homie, she got the homie done, so you know....” Deputy Perez testified that “she got the homie, she got the homie done” meant “she’s responsible for the death of one of the homies.” In addition, a custodian of records from Sprint Nextel Communications testified that defendant’s cellular telephone records showed defendant was in the area of the shooting in the hours before the shooting occurred. Accordingly, any trial court error in admitting into evidence the testimony in question of Detectives Flaherty and Jacinto concerning their observations about Monique was harmless error.
3. Detective Hernandez’s Testimony
Defendant contends that the trial court abused its discretion by admitting into evidence Detective Hernandez’s improper opinion testimony that defendant intended to kill Monique. We agree, but it was harmless error.
A gang expert properly may testify about gang affiliation and activity where such evidence is relevant to an issue of motive or intent. (See People v. Funes (1994) 23 Cal.App.4th 1506, 1518; People v. Killebrew (2002) 103 Cal.App.4th 644, 657.) Similarly a gang expert properly may testify about “whether and how a crime was committed to benefit or promote a gang.” (People v. Killebrew, supra, 103 Cal.App.4th at p. 657.) A gang expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, if such matters are beyond the jury’s common experience. (People v. Valdez (1997) 58 Cal.App.4th 494, 506-509; People v. Killebrew, supra, 103 Cal.App.4th at p. 651, citing Evid. Code, § 805 [“Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible”].) A gang expert, however, may not opine on whether a “specific individual had specific knowledge or possessed a specific intent.” (People v. Killebrew, supra, 103 Cal.App.4th at p. 658 [gang expert opinion that vehicle occupants knew there were guns in the car, and that the occupants jointly possessed the guns for their mutual protection was an improper opinion on the ultimate issue and should have been excluded]; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550-1551.)
The prosecutor asked Detective Hernandez to assume as true the following facts: “[O]n the early morning hours of October the 8th of 2008, a woman who is either an associate or a member of the 107 Hoover Criminals had been celebrating their hood day which carried onto the morning of October the 8th; [¶] That as she was leaving a location where a celebration was taking place, a member of the 9-Deuce Hoovers approached her, said, ‘Bitch, I told you, ’ and fired a handgun at her, striking her—striking her twice. The suspect then fled.” The prosecutor asked Detective Hernandez “Based on those facts alone and the relationship between those two gangs, would you have an opinion, just based on that, as to whether that crime was committed for the benefit of, at the direction of, or in association with a criminal street gang?” Detective Hernandez responded that he did. The prosecutor asked Detective Hernandez, “What would your opinion be?” Detective Hernandez responded, “That would be based on the investigation of—it was probably a retaliation shooting to something that had transpired earlier from earlier events.”
Detective Hernandez further testified that although the 9-Deuce Hoovers street gang was “not a rival [gang, ]... somebody from a different [gang] set [went to the] 107 hood day, and they [shot] somebody, trying to kill them. That is such a brazen act that it sends a message not only to the other sets within the Hoover Criminals as ‘don’t mess with us, ’ but it also sends out a message to other gangs that we’re willing to discipline. We’re willing to kill one of our own. [¶] In this case the person didn’t die, but the act was so violent that it’s clear that they were trying to kill the person.” Defendant’s counsel objected, without stating any grounds, and moved to strike the last portion of Detective Hernandez’s testimony that “it’s clear that they were trying to kill the person.” The trial court asked Detective Hernandez, “[W]ell, you have the facts given. [¶] Based upon the facts as you know them in this case, would you believe that that was an attempt to kill somebody?” Detective Hernandez responded, “Absolutely, sir.” The trial court stated, “The objection is overruled.” Defendant’s counsel said, “Objection. With respect to relevance also, Your Honor.” The trial court overruled the objection.
Respondent does not contend that defendant forfeited his contention that the trial court erred in admitting into evidence Detective Hernandez’s testimony.
Detective Hernandez’s testimony that the shooter had the intent to kill was inadmissible. He explained that “[i]n this case” the person did not die. The hypothetical facts provided to him by the prosecutor did not state that the victim did not die. Officer Hernandez was testifying based on the facts of this case, not of a set of hypothetical facts. Detective Hernandez also testified that the shooter had the intent to kill in response to the trial court’s question whether he believed there was an attempt to kill somebody “[b]ased upon the facts as you know them in this case....” Because the opinion testimony was based on facts outside the hypothetical facts posed by the prosecutor and were based on the facts “[i]n this case” and as he “know[s] them in this case, ” Detective Hernandez was opining that defendant had the intent to kill the victim, not whether a hypothetical shooter was acting in retaliation with an intent to kill. The trial court abused its discretion by admitting Detective Hernandez’s opinion testimony that defendant intended to kill the victim.
The error, however, was harmless. There is substantial evidence from which a reasonable juror could infer that there was intent to kill. Monique was shot twice in the back. The shooting was at close range, and it occurred outside a party for the 107 street gang. Laretha testified that prior to the shooting somebody said, “Bitch, I told you.” which implied that the shooter knew Monique and intended to kill her. Detective Hernandez and Officer Marullo testified that acts of retaliation frequently occur as part of gang culture, and Officer Marullo testified that Monique would be a target for retaliation based on Patton allegedly murdering Barney and Monique’s relationship with Patton. In view of the evidence, whether under the standard set forth in People v. Watson, supra, 46 Cal.2d 818, 836, or Chapman v. California, supra, 386 U.S. 18, 836, the error was harmless.
2. The Alleged Errors in Sentencing Defendant
The trial court sentenced defendant by stating that the “two priors having been found to be true, it’s an additional—under Penal Code 667.5, it’s an additional ten-year sentence.” Despite the trial court’s reference to section 667.5, defendant interprets the trial court’s sentencing of defendant to mean that the court erred in sentencing defendant pursuant to section 667, subdivision (a)(1), as it is required to do, because he should have been sentenced under section 667, subdivision (a)(1) to five year instead of 10 years in state prison. Respondent agrees. Defendant also contends that the trial court did not exercise its discretion whether to strike or impose on defendant one year for each of the two prior prison terms within the meaning of section 667.5, subdivision (b) and the case should be remanded to allow the trial court to do so. Respondent contends that the trial court exercised its discretion to impose the enhancements under section 667.5, subdivision (b), and the enhanced sentence is two years.
It is unclear from the record whether the trial court was attempting to impose the mandatory sentencing enhancement under section 667, subdivision (a)(1), or was exercising its discretion to sentence defendant under section 667.5, subdivision (b). In addition, because as discussed post we holdthat the judgment must be modified to reflect that defendant is subject to a mandatory five-year enhancement under section 667, subdivision (a)(1), the trial court should exercise its discretion under section 667.5, subdivision (b) in light of that modification.
1. Section 667, subdivision (a)(1)
Section 667, subdivision (a)(1) states that, “any person convicted of a serious felony who previously has been convicted of a serious felony in this state... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” Imposition of the sentencing enhancement under Section 667, subdivision (a)(1) is mandatory. (People v. Dotson (1997) 16 Cal.4th 547, 553.)
Defendant was charged with having suffered one prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and the trial court found the charge to be true. It is unclear from the record whether the trial court imposed the required sentencing enhancement under section 667, subdivision (a)(1). Although the trial court apparently used the formula set forth in section 667, subdivision (a)(1) of a five-year enhancement for defendant’s felony conviction, it referenced section 667.5, not section 667, subdivision (a)(1), and there was only one prior conviction applicable to section 667, subdivision (a)(1), not two prior convictions.
Regardless of whether the trial court attempted to impose on defendant a sentence enhancement under section 667, subdivision (a)(1), the parties agree defendant was subject to a mandatory five-year enhancement under that section. The judgment is so modified, and the matter is remanded for the trial court to amend the abstract of judgment accordingly.
2. Section 667.5, subdivision (b)
Section 667.5, subdivision (b) provides in part, “[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony....” The amended information alleged that defendant suffered two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court found the allegation to be true.
A trial court has discretion to “either impose or strike the section 667.5, subdivision (b) prior prison term enhancements.” (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.) The record is unclear whether the trial court exercised its discretion under section 667.5, subdivision (b) because the trial court referred to an additional ten-year sentence instead of an additional two-year sentence under 667.5, subdivision (b). In addition, because, as discussed ante, we hold that the judgment must be modified to reflect that defendant is subject to a mandatory five-year enhancement under section 667, subdivision (a)(1), defendant is entitled to have the trial court exercise its discretion in light of the modification. (People v. Dominguez (1995) 38 Cal.App.4th 410, 426 [remanding for resentencing section 667.5, subdivision (b) enhancements when there is “no indication in the record how the trial court would have exercised its discretion [to strike the enhancements] had the court been aware the enhancement for the prior conviction of a serious felony was mandatory”].) Accordingly, we remand the matter for the trial court to determine whether to impose or to strike the remaining section 667.5, subdivision (b) enhancements, and if the latter, to state its reasons for doing so in its minute order. (People v. McCray, supra, 144 Cal.App.4th at p. 268; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1589; § 1385, subd. (a).)
DISPOSITION
Defendant’s judgment is modified to provide that he is ordered to serve an additional five years in state prison pursuant to section 667, subdivision (a)(1). We remand the matter to the trial court to sentence defendant and determine whether to impose or to strike defendant’s two section 667.5, subdivision (b) priors. If the trial court strikes the priors, it shall state its reasons for doing so in its minute order. The trial court is to amend the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
We concur: TURNER, P. J.ARMSTRONG, J.