Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. TA090337, Allen J. Webster, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, and Alene M. Games, Deputy Attorney General, for Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
A jury convicted appellant Samuel Hernandez of two counts of second degree robbery (counts 1 and 2), carrying a loaded, unregistered firearm (count 3), and possession of a smoking device (count 4). The jury also found true as to both robbery counts that appellant had personally used a firearm under Penal Code section 12022.53, subdivision (b). He appeals, arguing the trial court erred in instructing the jury and in the manner it imposed a firearm use enhancement. We remand to correct a sentencing error, but otherwise affirm.
All code references are to the Penal Code.
FACTUAL AND & PROCEDURAL BACKGROUND
Prosecution Case
J.F. and B.O. were walking from school to their part-time jobs at the Lynwood Unified School District when a white truck pulled into a driveway ahead of them and stopped near the sidewalk. Appellant was driving, with a female passenger in the front seat. The female passenger asked for street directions, and J.F. approached the passenger window to help. Appellant said, “Thanks. My name is Sleepy.”
Appellant then pulled out a gun and pointed it at J.F’s chest. The female asked J.F. for his cell phone and told him to have B.O. hand over his iPod. J.F. did as he was told, but B.O. started backing away. Appellant demanded that B.O. come back and hand over the iPod or else he would shoot. B.O. complied. Appellant also demanded money, so J.F. handed over the two dollars in his pocket. Appellant and his female passenger then drove off.
The boys found a police officer at the nearby city hall and described appellant, the truck, and the gun. Appellant was apprehended the next day while he was driving the same white truck. In the truck were a methamphetamine pipe, a.25-caliber handgun hidden under the dash console, and business cards with the names “Samuel” and “Sleepy” written on the back. Although appellant had a license to carry several calibers of handguns, he had no license for a.25-caliber weapon. In subsequent interviews, appellant never denied involvement in the robbery and even offered to have his sister buy an iPod for B.O. and bring it to the police station.
J.F. and B.O. identified appellant from a photo six-pack prior to trial. They also identified him at trial.
Defense Case
Marrissa Hernandez testified that she had been friends with appellant for two years and that he was with her in a motel room during the time of the robbery. Neither of them left the room that entire day. Appellant also testified that he had been in a motel room with Hernandez during the robbery. When asked if his name was “Sleepy,” appellant said, “No, not that I recall.” Appellant did not know how the name “Sleepy” got on the business cards, and he denied having a.25-caliber gun or robbing the boys.
Sentencing
The jury found appellant guilty as charged. The trial court sentenced appellant to the mid-term of three years on each robbery count, with the terms to run concurrently. The court also imposed a 10-year firearm use enhancement on each robbery count, but those terms were to run consecutively. The court did so believing it was required to impose the enhancements consecutively. The court imposed concurrent sentences on the remaining offenses, for a total prison sentence of 23 years.
We note the abstract of judgment does not reflect a sentence for the conviction of possessing a smoking device (count 4). On remand, the trial court should ensure an amended abstract of judgment correctly reflects the sentence on all counts.
DISCUSSION
Appellant argues the trial court erred by (1) instructing the jury concerning his flight from the scene because flight is already an element of robbery and the instruction lowered the prosecution’s burden of proof; (2) imposing a consecutive term for the firearm use enhancement on the second count of robbery, while the sentence on the robbery itself was ordered to run concurrently; and (3) imposing a full 10-year term on this firearm use enhancement rather than one-third of the term under section 1170.1.
The Flight Instruction Was Properly Given.
Over defense counsel’s objections, the trial court instructed the jury in accordance with CALCRIM No. 372, which addresses how a jury should evaluate evidence that a defendant fled the crime scene. “In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055 [decided with analogous former flight instruction CALJIC No. 2.52].)
CALCRIM No. 372 provides, in relevant part: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
Appellant contends it was error to give the instruction because asportation is already an element of robbery. This argument was rejected in People v. Navarette (2003) 30 Cal.4th 458, where the court said, “Though the crime of robbery continues ‘as long as the loot is being carried away to a place of temporary safety,’ ‘for purposes of establishing guilt, the asportation requirement is initially satisfied by evidence of slight movement.’ [Citation.] Therefore, defendant did not need to flee the scene of his crimes to be guilty of robbery, and his flight is evidence of his consciousness of that guilt.” (Id. at p. 502.)
Appellant’s argument that the instruction lessened the prosecution’s burden of proof is also without merit. (See People v. Mendoza (2000) 24 Cal.4th 130, 180-181 [CALJIC No. 2.52 does not lessen the prosecution’s burden of proof]; People v. Avila (2009) 46 Cal.4th 680, 710 [CALJIC No. 2.52 does not create an unconstitutional permissive inference or lessen the burden of proof]; People v. Rios (2007) 151 Cal.App.4th 1154, 1158-1159 [CALCRIM No. 372 does not presume the existence of guilt and lower the prosecution’s burden of proof].)
Even assuming the trial court erred in giving the flight instruction, it was harmless. Not only were both the existence and significance of flight left to the jury (People v. Crandell (1988) 46 Cal.3d 833, 870), but the evidence of guilt was overwhelming. Both J.F. and B.O. positively identified appellant, and he was found with business cards that had the name “Sleepy” on them, the name appellant used when he identified himself during the robbery. We see no reasonable probability that the flight instruction affected the verdicts. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Silva (1988) 45 Cal.3d 604, 628.)
The Firearm Use Enhancement Was Erroneously Imposed.
The parties agree the trial court erred by imposing a consecutive term for the personal firearm use enhancement on the second count of robbery, while at the same time ordering the sentence on the robbery itself to run concurrently. We also agree.
Personal firearm use enhancements are not separate crimes and do not stand alone; they are dependent on and necessarily attach to the underlying felony. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310-1311.) Imposing a concurrent term for a felony conviction and a consecutive term for its attendant enhancement results in an unauthorized sentence. (Ibid.) The sentence and enhancement on the second count of robbery both must run either consecutively or concurrently. The sentence and enhancement cannot be split as the court did in this case. (Ibid.) The proper procedure on appeal is to remand for resentencing. (Ibid.)
Imposing 10 Years on the Firearm Use Enhancement Was Proper.
Even though we have already decided this case must be remanded for resentencing and thus could end our discussion without further consideration of appellant’s contentions of sentencing error, we recognize that upon remand one of the trial court’s sentencing options will be to impose a concurrent term on count 2. Accordingly, in order to aid the court at resentencing, we have resolved appellant’s additional contention of sentencing error.
The parties initially agreed the trial court erred by imposing a full-strength 10-year firearm use enhancement on the second count of robbery. Relying upon People v. Moody (2002) 96 Cal.App.4th 987 (Moody), they both asserted the court should have imposed one-third of the 10-year term for the enhancement under section 1170.1, subdivision (a). We asked the parties for further briefing on whether Moody and section 1170.1, subdivision (a), were truly applicable under the facts of this case. We conclude that in the context of concurrent sentencing they are not.
The transcript of the sentencing, the court minutes, and the abstract of judgment all reflect the court ordered the term on the second count of robbery to run concurrent with the first robbery count. Indeed, it was the court’s intent that the sentence on all counts run concurrently. As one court explained, “Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3; see also People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4 [one-third the middle term applies to consecutive, not concurrent sentences]; §§ 669, 1170.1, subd. (a).)
In Moody, the appellate court correctly held it was error to impose a full 10-year personal firearm use enhancement on a consecutive subordinate term for attempted robbery, because sections 1170.1 and 1170.11 required the enhancement to be one-third the term. (Moody, supra,96 Cal.App.4th at pp. 993-994.) The decision is readily distinguishable because, as already noted, the trial court in this case did not impose consecutive sentences on the robberies. That fact means that sections 1170.1, subdivision (a), and 1170.11 are inapplicable here. (See People v. Garza (2003) 107 Cal.App.4th 1081, 1093-1094 [where section 1107.11 is inapplicable, full 10-year enhancement under section 12022.53, subdivision (b) must be applied]; People v. Mustafaa, supra, 22 Cal.App.4th at p. 1310 [“Subordinate terms include only those terms for felony convictions which have been imposed consecutively”].) Accordingly, because the trial court imposed a concurrent sentence, it did not err by imposing a full 10-year enhancement on the second count of robbery.
Disposition
The sentence is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: RUBIN, Acting P. J., BIGELOW, J.