Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles No. NA066411, Richard R. Romero, Judge
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Susan Sullivan Pithey, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Tahnesia Rochelle Hall appeals the judgment entered after a jury convicted her of first degree burglary (Pen. Code, § 459); assault with a semiautomatic firearm (§ 245, subd. (b)); threatening a witness (§ 140, subd. (a)); dissuading a witness by force or threat (§ 136.1, subd. (c)(1)); and three counts of misdemeanor false imprisonment (§ 236). The jury also found true the allegations that a principal was armed with a firearm in the commission of all of the offenses (§ 12022, subd. (a)(1)). Hall was sentenced to a total state prison term of 12 years, 10 months. She contends (1) the evidence is insufficient to support her conviction for dissuading a witness; (2) the trial court erred in failing to instruct the jury with CALCRIM No. 2623; (3) the evidence is insufficient to support her conviction for false imprisonment of Rian Frazier; (4) the court abused its discretion in admitting certain gang evidence pursuant to Evidence Code section 352; (5) prosecutorial misconduct; (6) the court erroneously calculated her sentence on the burglary count; (7) the one-year arming enhancement on the assault count must be stricken; (8) she was sentenced consecutively on the assault and burglary counts in violation of section 654; (9) cumulative error; and (10) she was sentenced to the upper term in violation of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. We shall order the judgment modified to reflect a term of 20 months on the burglary count (count 3), and to strike the one-year arming enhancement on the assault count (count 4). Otherwise, we affirm.
All further undesignated statutory references are to the Penal Code.
FACTS
At about 11:00 p.m., on May 6, 2005, Richelle "Bird" Tate and her roommates, Jennifer Hardin and Rian Frazier, left Club 49 in Long Beach and went to Hardin's car in the parking lot across the street. The three of them were "hanging out" in the parking lot with about 10 other people when Hall arrived with codefendant Azeez Momoh, who was known as "Big Sag." Tate greeted Momoh, whom she had known for several years. Momoh did not respond and continued to ignore Tate when she asked why he was not speaking to her. Hall, who had been identified by someone in the crowd as Momoh's "girl," got out of the car and argued with Tate and Frazier. Approximately 30 minutes later, Tate and Frazier returned to the club. Tate was denied entry because she was not wearing shoes. Tate went back to the parking lot to retrieve her shoes while Frazier went to get the car keys from Hardin, who had returned to the club earlier.
Momoh is not a party to this appeal. He separately appealed his conviction, which was affirmed. (People v. Momoh (Jan. 14, 2008, B192468) [nonpub. opn.].)
As Tate was walking to Hardin's car, Momoh pushed her to the ground and repeatedly punched her. Frazier, who had returned from the club, observed the entire incident. When Momoh saw Frazier, he and Hall got into his car and drove away. Tate was covered in blood and fatty tissue was hanging from one of her breasts. She was subsequently hospitalized for four or five days with a punctured and collapsed lung and numerous cuts all over her body that required stitches.
In the early morning of May 9, 2005, while Tate was still in the hospital, Hall and Momoh went to the house where Tate and her three children lived. Living in the same house were Frazier and her boyfriend Emmit Love, Hardin and her three children, and a friend named Marquis Smaulding. Smaulding, who slept on a couch in the living room, got up and answered the front door after hearing someone twisting the doorknob. Momoh asked for Hardin, and Smaulding told him he would check to see whether she was home. When Smaulding turned away, Hall and Momoh walked in. Hall asked, "'Where is that white bitch at, Jennifer, the one that's doing all the talking?'" Momoh grabbed Smaulding by the arm and told him to sit on the couch. Tate's seven-year-old son, Derrick, came into the living room and complied with Momoh's demand to sit next to Smaulding.
Hall and Momoh went to Frazier's bedroom and turned on the light to find Frazier and Love in bed. As Hall stood in the doorway, Momoh approached Frazier and pointed a gun about three to five inches from her head. Momoh told Frazier, "'I didn't mean to hurt your family'" and stated several times that he "didn't stab Bird." He also accused her of "going around saying my name," and said that he was "not going down for that shit" if Tate died. He also repeatedly asked where "that bitch" Hardin was.
Hall and Momoh stayed at the house for approximately 15 to 20 minutes. Smaulding got up to leave at one point, but Hall told him to sit back down. She also told Smaulding and Derrick to "stop looking at her fucking face" and then covered her face with two scarves.
Later the same day, Frazier and Hardin contacted Long Beach Police Detective Kevin Nelson, who was assigned to investigate the incident involving Tate's stabbing. Love spoke to Detective Nelson two months later. Detective Nelson testified that Love told him "it was clear that they were being threatened not to talk to the police."
Witnesses to Tate's stabbing told Detective Nelson that "Big Sag" from the Rolling 20's Crips gang was involved. Detective Nelson knew from prior contacts that Momoh was Big Sag. Frazier and Smaulding identified Hall and Momoh from photographic lineups. The police subsequently searched the apartment where Hall lived with Momoh and found three live bullets in the bedroom.
Hall testified in her own defense. Hall has two children with Momoh and identified him as her spouse. She claimed, however, that they were both seeing other people when the crimes were committed. According to Hall, she was in Las Vegas from May 6 until May 10. She also testified that she had never been to Club 49 and had never met Tate, Frazier, or Smaulding.
DISCUSSION
I.
Sufficiency of the Evidence – Dissuading a Witness by Force or Threat
Hall challenges the sufficiency of the evidence supporting her conviction for dissuading a witness by force or threat under section 136.1, subdivision (c)(1). She claims the evidence is insufficient to prove that she specifically intended to aid and abet Momoh in dissuading Frazier from talking to the police about the stabbing incident because Momoh's statements to Frazier were merely "angry utterances regarding Frazier's past conduct with the police." We reject this contention.
In assessing the sufficiency of evidence to support a judgment, we review the entire record to determine whether reasonable and credible evidence supports the decision of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1180.) We view the evidence and draw all reasonable inferences therefrom in favor of the judgment. (Ibid.) We do not redetermine witness credibility or resolve conflicts in the evidence. (Id. at p. 1181.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (Ibid.) The testimony of a single witness, if believed by the factfinder, is sufficient to support a conviction. (Ibid.)
In order to convict Hall of dissuading a witness by force or threat, the prosecution had to prove, among other things, that she specifically intended to aid and abet Momoh in attempting to dissuade Frazier from providing information as a witness to Tate's stabbing or otherwise assisting in the prosecution of any criminal action arising therefrom. (§ 136.1, subds. (b)-(c); People v. Young, supra, 34 Cal.4th at p. 1210.) The evidence adduced at trial is sufficient to make this showing. The record belies Hall's claim that neither she nor Momoh said anything or engaged in any conduct that could be construed as a threat against Frazier. After Hall and Momoh barged into Frazier's bedroom late at night, Momoh thrust a gun into her face and chastised her for "going around saying [his] name." He also told her he was "not going down for that shit" if Tate died, and repeatedly asked her to tell him the whereabouts of another victim to the stabbing, whom he characterized as "that bitch." Love later told the police that Momoh and Hall had made it clear that they were "not to talk to the police." This evidence is sufficient to sustain the finding that the defendant's words and actions did not merely relate to Frazier's past conduct, but rather were intended to dissuade her from cooperating with the police or prosecution in the future. (People v. Young, supra, at p. 1181.)
II.
Failure to Give CALCRIM No. 2623
The jury was instructed on the elements of misdemeanor dissuading a witness (§ 136.1, subd. (c)(1)). The court failed, however, to instruct that for the offense to be a felony the People had to prove the use or threatened use of force. (CALCRIM No. 2623.) Hall contends the trial court violated her federal and state constitutional rights to a fair trial and due process by failing to give this instruction. While the court violated its sua sponte duty in this regard, the error was harmless beyond a reasonable doubt. (People v. Ortiz (2002) 101 Cal.App.4th 410, 416.) In finding that Hall and Momoh were guilty of dissuading a witness, the jury also found that a principal was armed with a firearm during the commission of the offense. The jury also found that Hall and Momoh assaulted Frazier with that firearm. Under the circumstances, no rational jury could have declined to find that the force or threat element of section 136.1, subdivision (c)(1) had been proven beyond a reasonable doubt.
The instruction provided in relevant part: "The defendants are charged in Count 6 with intimidating a witness. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendants maliciously tried to prevent or discourage RIAN FRAZIER from cooperating or providing information so that a complaint could be sought and prosecuted, and from helping to prosecute that action; [¶] 2. RIAN FRAZIER was a witness; [¶]AND [¶] 3. The defendant knew he/she was trying to prevent or discourage RIAN FRAZIER from cooperating or providing information so that a complaint may be sought and prosecuted and intended to do so. [¶] A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice."
Hall nevertheless asserts that the error cannot be deemed harmless because the jury found her not guilty of felony false imprisonment of Frazier and submitted a note during deliberations stating "that it found no excessive violence" with regard to that count. This assertion is unavailing. The jury's rejection of the felony false imprisonment charge demonstrates that it found Hall guilty of misdemeanor false imprisonment not as an aider and abettor, but as a principal based upon her act of blocking the doorway to Frazier's bedroom. Because Hall's conviction for dissuading a witness is based upon the theory that she aided and abetted Momoh's commission of the crime, and the record unequivocally demonstrates that Momoh's crime was committed with force or the threat thereof, the court's failure to instruct the jury on that element of the crime is harmless beyond a reasonable doubt.
III.
Sufficiency of the Evidence – False Imprisonment of Rian Frazier
Hall contends the evidence is insufficient to support her conviction for misdemeanor false imprisonment of Rian Frazier because there is no evidence that Frazier made any effort to leave her room or that she was prevented from doing so. We find no merit in this contention.
The crime of misdemeanor false imprisonment is defined as "the unlawful violation of the personal liberty of another." (§ 236.) The crime "requires no force beyond that necessary to restrain the victim. All that is necessary is that '"the individual be restrained of his liberty without any sufficient complaint or authority therefor, and it may be accomplished by words or acts . . . which such individual fears to disregard." [Citations.]' [Citation.] '"Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment."' [Citation.]" (People v. Babich (1993) 14 Cal.App.4th 801, 806-807.)
Contrary to Hall's claim, the prosecution was not required to prove that Frazier tried to leave her room or that she was expressly restrained. Under the totality of the circumstances, and viewing the record in the light most favorable to the judgment (People v. Young, supra, 34 Cal.4th at p. 1180), Hall's act of blocking the doorway to Frazier's bedroom supports the inference that Frazier was compelled to stay there against her will. This is sufficient to sustain the conviction.
IV.
Gang Evidence
Hall contends the court abused its discretion in admitting evidence that Momoh was a gang member, and that it should have been excluded as substantially more prejudicial than probative under Evidence Code section 352. Frazier's testified that she gave the police a false name when she initially reported Tate's stabbing because one of the women who was with her that night "hung out" with the Rolling 20's Crips gang. According to Frazier, she was afraid that members of the gang would discover that she had cooperated with the police. The trial court overruled Hall's objections, reasoning that "[g]iving a false name, distancing herself from her account is a serious material issue as to her credibility. The mere fact she did not want an acquaintance to know she was cooperating with the police, . . . is kind of a weak explanation but doesn't probably ring true. Because the truth is she believed Mr. Momoh was a Rolling 20, and that was the real nexus. So it's highly probative. Otherwise, the D.A. does not get a fair trial because a juror might decide to discredit everything she says because that's not a real strong explanation for giving a false name." Frazier then testified that she was afraid of the gang because Momoh associated with its members. The court immediately admonished the jury that "[t]his testimony is admitted on the issue of this witness's state of mind, not for character evidence about the defendant and the gang, only as to her state of mind and her motive for doing or not doing things in this case." Detective Nelson later testified that "Big Sag," who several witnesses to the stabbing identified as the perpetrator, was the name Momoh had been given through his association with the Rolling 20's Crips.
Hall contends that she was unduly prejudiced by the evidence of Momoh's gang membership. To making this showing, Hall must demonstrate that the court's decision to admit the evidence "exceeds the bounds of reason." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) She fails to meet this burden. While she argues that "the only possible function of the gang evidence in this case was to show appellant's criminal disposition by implying that Momoh's involvement with the gang reflected on appellant by association," Frazier's testimony was relevant to her credibility and the identification of Momoh as Big Sag was relevant to prove he had perpetrated the stabbing. The court also admonished the jury on the limited admissibility of the evidence, and gave the corresponding instruction (CALCRIM No. 303) at the conclusion of the trial. We presume the jury followed the court's admonishment and concluding instructions. (People v. Welch (1999) 20 Cal.4th 701, 773.) The cases Hall cites in which the admission of cumulative or minimally relevant gang evidence is deemed reversible error are inapposite because there is no indication that any other witness was prepared to testify that Momoh was Big Sag or that he was prepared to stipulate to that fact. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 904-906; People v. Avitia (2005) 127 Cal.App.4th 185, 193-194.)
In any event, Hall fails to demonstrate that the asserted error was prejudicial. As we have noted, nothing in the record undermines the presumption that the jury followed the trial court's admonition and concluding instructions to consider the evidence of Momoh's gang affiliation for the limited purpose for which it was admitted. (People v. Welch, supra, 20 Cal.4th at p. 773.) Moreover, the evidence of Hall's guilt was overwhelming. Because it is not reasonably probable that Hall would have received a more favorable verdict in the absence of the challenged evidence, any error in its admission would be harmless. (Evid. Code, § 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 836; People v. Valdez (1997) 58 Cal.App.4th 494, 511.)
V.
Prosecutorial Misconduct
Hall contends the prosecutor made a statement during closing argument that constituted prejudicial misconduct. Specifically, in attempting to impeach Hall's credibility regarding her alibi and her motive to lie, the prosecutor stated "[s]he didn't go chasing down the doors when she knew what her husband was arrested for. She didn't talk when she was arrested because there is this little thing called rights." Hall initially objected to the statement on the ground that it "completely misstates what happened." In a chambers conference, the court told the prosecutor "we do have a problem if you're talking about a defendant not making a statement and then talking about something about rights." The prosecutor responded, "[m]y next line was she doesn't have to talk to them, and leave it at that. I'm not going to say she didn't invoke, she didn't do anything. [¶] And for counsel to even talk about her giving a statement - - [defense counsel] brought it up in his argument that they didn't talk to her. Well, if she invoked her rights, that's completely improper. She didn't. But my next line is just she doesn't have to. She doesn't have to say anything. That's not improper."
Hall's attorney then moved for a mistrial "under state and federal rules" on the ground that "[t]he People knew before they made that portion of their argument that my client had never been interviewed about this case ever." Counsel added: "What they are doing now is suggesting . . . that the police could not talk to her in January of 2006 because she had a right to silence. They know she didn't invoke. They know she was never interviewed. They know [Detective] Nelson never went near her, nor did anyone else." The court refused to declare a mistrial, but sustained Hall's objection to the prosecutor's comment. The court thereafter admonished the jury as follows: "Defense objection is sustained. You're to disregard the prosecutor's last argument about rights and defendant's making statements. That's disregarded. You're not to consider that for any purpose whatsoever. The attorneys' arguments are not evidence. . . . Only the testimony that you heard from the witness stand and the exhibits that have been admitted into evidence, that's the only evidence, not what you hear now." At the conclusion of trial, the jury was instructed that "[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence."
On appeal, Hall asserts that the prosecutor's statement is reversible error under Doyle v. Ohio (1976) 426 U.S. 610. She also argues that the prosecutor committed prejudicial misconduct by arguing facts that were not in evidence. We find no merit in their contention.
Hall's claim of Doyle error is waived because it was not asserted below. In any event, no such error occurred. In Doyle, the United States Supreme Court ruled "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." (Doyle v. Ohio, supra, 426 U.S. at p. 618.) Accordingly, "the use for impeachment purposes of [the defendant's] silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." (Id. at p. 619.) Hall's objection to the prosecutor's statement was primarily premised on the fact that she had never invoked her right to remain silent under Miranda. To the extent the jury might have construed the statement otherwise, the potential error was cured by the court's admonition. Under the circumstances, "[t]he fact of [defendant's] postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred in this case. [Fn. Omitted.]" (Greer v. Miller (1987) 483 U.S. 756, 764-765.)
Miranda v. Arizona (1966) 384 U.S. 436.
Even if the court erred in denying Hall's motion for a mistrial, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Quartermain (1997) 16 Cal.4th 600, 621.) The prosecutor's statement was brief, and we presume the jury followed the court's instruction to disregard it. (People v. Holt (1997) 15 Cal.4th 619, 662.) Moreover, the evidence of Hall's guilt was overwhelming. In light of this conclusion, Hall cannot establish that the prosecutor committed prejudicial misconduct by arguing facts not in evidence because it is not reasonably probable that she would have achieved a more favorable result absent the misconduct. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Zurinaga (2007) 148 Cal.App.4th 1248, 1260.)
VI.
Sentencing
A.
Calculation of Sentence on Burglary Count
In orally pronouncing Hall's sentence on the burglary count (count 3), the trial court imposed a term of 22 months, consisting of 1 year, 6 months (which the court characterized as one-third of the midterm) plus 4 months (one-third the midterm) for the arming enhancement allegation. The abstract of judgment also reflects a sentence of 22 months, although it is erroneously calculated as 1 year for the burglary plus 10 months for the arming enhancement allegation. Hall contends, and the People concede, that the correct sentence is 20 months because one-third of the midterm for burglary (4 years) is 16 months, not 18 months. Accordingly, we shall order the judgment modified to reflect a total term of 20 months on count 4, consisting of 16 months (one-third the midterm) plus 4 months for the arming enhancement allegation.
B.
The Arming Enhancement on the Assault with a Firearm Count
Hall contends, and the People concede, that the court erroneously imposed a consecutive one-year enhancement on the assault with a firearm count (count 4) for the section 12022, subdivision (a) allegation that was found true by the jury. Because arming is an element of the offense (§ 245, subd. (b)), the enhancement by its express terms does not apply (§ 12022, subd. (a)(1)). The section 12022, subdivision (a) enhancement on count 4 shall therefore be stricken.
C.
Section 654In sentencing Hall, the court ordered the term on the burglary count (count 3) to run consecutive to the term imposed on the assault count (count 4). Hall contends that her sentence on the burglary count violates the proscription against multiple punishment set forth in section 654 because the burglary and assault with a firearm were part of the same criminal intent and objective. (See, e.g., People v. Hester (2000) 22 Cal.4th 290, 294.) We disagree.
Section 654 "prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective." (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
As a general rule, the trial court determines the defendant's "'intent and objective'" under section 654 by a preponderance of the evidence. (People v. Cleveland (2001) 87 Cal.App.4th 263, 266, 268.) "We review the court's determination of [Hall's] 'separate intents' for sufficient evidence in a light most favorable to the judgment, and presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]" (Id. at p. 271.)
The trial court did not make express findings in sentencing Hall on count 3. In identifying the aggravating circumstances with regard to all of the offenses, however, the court stated it was "clear from the evidence that I heard that you were there and that you and Mr. Momoh planned the burglary, you knew he was armed, you knew the purpose of this, to enter the residence with the intent to assault and dissuade witnesses, and there were multiple victims."
Substantial evidence supports the court's implicit finding that Hall entered Frazier's residence with multiple, distinct intents. The jury was instructed on the burglary count that Hall was guilty of burglary if she entered Frazier's residence with the intent "to commit assault with a semiautomatic firearm, threaten a witness, intimidate a witness, or false imprisonment . . . ." While Hall and Momoh's primary intent may have been to dissuade Frazier from cooperating in the investigation of Tate's stabbing, the act of assaulting Frazier with a firearm was not necessary to achieve that objective. The court could therefore infer that the crime was a gratuitous act of violence intended to punish Frazier for the information she had already provided.
People v. Nelson (1989) 211 Cal.App.3d 634, is instructive. The defendant in that case was convicted of burglary and two counts of assault. The evidence at trial established that the defendant had assaulted his victims after breaking into their house along with two other men pursuant to a plan to steal gold and money. The Court of Appeal rejected the defendant's claim that multiple punishment for the three crimes was prohibited under section 654, reasoning as follows: "If defendant's only object was to steal the victims' gold and money, he could have accomplished that simply by waiting until they were away to enter their home. . . . On this record, it is reasonable to infer, as we assume the trial judge did, that theft was not the burglars' only object and purpose. Rather, they deliberately chose to enter the McLeod residence while the victims were at home, knowing as they must that their presence reduced the chances of a successful theft, because separate and apart from thievery they intended to inflict physical harm upon the victims. [Fn. Omitted.] Therefore defendant is deserving of the more serious punishment without benefit of the mitigating effect of Penal Code section 654." (Id. at pp. 638-639.)
The same rationale applies here. The fact that Hall and Momoh chose to bring a firearm, when it was unnecessary to do so, supports the finding that the act of assaulting Frazier with the firearm was undertaken pursuant to a separate intent and is therefore deserving of separate punishment. (People v. Harrison, supra, 48 Cal.3d at p. 335; People v. Cleveland, supra, 87 Cal.App.4th at pp. 266, 268.)
VII.
Cumulative Error
Hall contends that the cumulative effect of the trial court's errors compels reversal because she did not receive a fair trial. As we have concluded, however, the trial court did not commit error. (People v. Carpenter (1999) 21 Cal.4th 1016, 1064.)
VIII.
Cunningham
Hall contends that she was sentenced to the upper term on the assault with a firearm count in violation of Cunningham. We disagree.
In finding that the circumstances in aggravation warranted imposition of the upper term, the court referred to the fact, among others, that there were multiple victims. Although no longer listed as a factor in aggravation in rule 4.421 of the California Rules of Court, the trial court was nevertheless entitled to rely on that factor in deciding to impose the upper term. (People v. Calhoun (2007) 40 Cal.4th 398, 405-406.) By its verdicts, the jury necessarily found that Hall's crimes involved multiple victims. (Id. at p. 406.) Moreover, the existence of a single aggravating sentencing factor is sufficient to render a defendant eligible for the upper term of imprisonment: "[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (People v. Black (2007) 41 Cal.4th 799, 813.) Hall's sentence therefore comports with her Sixth Amendment rights.
To the extent Hall argues that Black was wrongly decided, we have no authority to disagree with the decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The sentence is modified to reflect a total term of 20 months on count 3, consisting of 16 months (one-third the midterm) plus 4 months for the section 12022, subdivision (a)(1) enhancement. On count 4, the one-year enhancement imposed pursuant to section 12022, subdivision (a)(1) is stricken. As modified, the judgment shall reflect a total term of 11 years, 8 months. The trial court shall forward a corrected abstract of judgment showing the amended sentence to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed
We concur: GILBERT, P.J., YEGAN, J.