Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCN205869, Joan P. Weber, Judge.
O'ROURKE, J.
A jury convicted Wyatt Ely Holcomb of carjacking (Pen. Code, § 215, subd. (a)) and robbery (§ 211). Holcomb thereafter admitted allegations that he had suffered
All statutory references are to the Penal Code unless otherwise indicated.
two prior convictions constituting strikes under the "Three Strikes" Law (§§ 667, subd. (b)-(i), 1170.12), two serious felony prior convictions (§ 667, subd. (a)(1)), and two prior prison terms (§§ 667.5, subd. (b), 668). The court sentenced him to an 11-year prison term. On appeal, Holcomb contends: (1) the evidence is insufficient to support a finding he aided and abetted the commission of the carjacking and robbery; (2) the trial court erred in denying his request for a mistrial following the improper disclosure of his parole status; and (3) the trial court should have stayed his concurrent four-year robbery sentence under section 654. Holcomb also asks us to correct the abstract of judgment to reflect that the trial court struck rather than stayed one of his prior prison term enhancements. The People concede the abstract of judgment should be modified as Holcomb requests. They also assert the trial court erred by neither striking nor imposing the second prior prison term enhancement and by failing to impose a consecutive five-year enhancement for Holcomb's second prior serious felony conviction. We agree the sentence must be reversed and the matter remanded for the trial court to either impose or strike the second prior prison term enhancement and that the abstract of judgment should thereafter be modified to correctly reflect the trial court's actions as to Holcomb's two prison term enhancements. We reject the remaining contentions of sentencing error and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 12, 2005, Carlos De La Torre Morales was waiting for his son in his red Ford F-150 truck behind the restaurant where he worked when a brown Thunderbird with five occupants drove up and stopped in front of him. Morales had his truck idling. A man exited the Thunderbird and, pointing what appeared to be a black automatic gun, approached Morales and told him to get out of the car. Morales complied, and two other men left the Thunderbird and entered his truck. One of the two men had a shotgun semi-concealed in his coat. As the first man was entering Morales's truck, he turned around and told Morales he wanted his wallet. Morales pulled more than $200 out of his front pocket and the man grabbed it out of his hand.
At some point, Morale's son Victor and Victor's cousin Saul Morales exited the restaurant. Victor, who was 15 years old at the time, observed the brown car slowly approach his father's truck. In addition to three or four men, he saw a woman driving the vehicle. The men who exited each had weapons; a black handgun, a shotgun and a sword-like sheathed weapon. Victor also saw a brown red-nose pit bull in the vehicle. He recognized the type of pit bull because he had previously owned such dogs. The man with the sword was African-American; he was wearing an Oakland Raiders jersey and had braided hair.
To avoid confusion, we refer to Victor and Saul Morales, as well as Alberto Morales De La Torre, by their first names. We intend no disrespect by our use of this shorthand device.
Alberto Morales De La Torre had just finished work and was in the restaurant's parking lot looking for his backpack when he saw the brown vehicle slowly drive past him. He went back inside the restaurant to retrieve his backpack and upon exiting observed Morales giving money to a man while Victor and Saul backed away. Alberto saw a female driver with blond hair, a man with black curly hair in the passenger side, a dog, and another person in the back seat.
The men left toward Highway 78, and Morales called police. His truck at the time contained a set of keys and a tool box belonging to his son. When police later showed Morales a photographic lineup, he identified Lester Ransburg as the man who robbed him. Victor did not get a good look at the remaining men; while he picked out one photograph of a suspect who looked familiar, he could not identify any of the remaining men or the woman for police. Victor was not able to identify Holcomb at trial. Saul, who was walking with Victor toward the truck, was likewise unable to identify any of the suspects to police. Detectives also showed Alberto a photographic lineup; he picked Holcomb's picture as the right front passenger of the vehicle, telling detectives he was possibly the man with the sword, and at the preliminary hearing and at trial Alberto identified Holcomb as that person he had chosen in the lineup. Alberto testified that Holcomb looked very different at trial than during the incident; he now appeared better kept with shorter hair and he did not have piercings in his face.
Darnell Matthys was driving on Highway 78 from the El Camino Real entrance when she saw a woman with dirty blond hair erratically driving an older Thunderbird behind a fairly new red truck. The truck pulled to the freeway shoulder and the Thunderbird swerved and stopped in front of it. Matthys saw two men, one wearing a jersey and both appearing to conceal something, jump out of the truck and run into the Thunderbird with the woman, who had a dog in the backseat. Matthys took down the license plate of the Thunderbird and called 911. She later told an officer that the two men running from the red truck had shaved heads. At about 4:45 p.m., police officers in the area received a dispatch about the carjacking; one of the officers found Morales's truck on the side of the freeway approximately five minutes later.
Two days later, Oceanside Police Officer Mike Roberts chased and pulled over the brown Thunderbird based on license plate information he had received indicating it had been involved in the earlier armed carjacking. The officer observed the car start to drive at a high rate of speed after he caught up to it. The Thunderbird had been reported stolen about a month earlier. Officer Roberts and other responding police officers ordered the car's occupants – Holcomb and his girlfriend Krista Fulghum – out at gunpoint. Detectives searched Holcomb's apartment that same afternoon and found Ransburg sleeping on the floor in Holcomb's room. They found Morales's keys on the top of the dresser and Morales's son's tool box tucked between the nightstand and mattress. Next to Ransburg was a backpack containing a pellet gun and jerseys, including an Oakland Raiders jersey, as well as other items of clothing. Officers also found a dog registration form in Holcomb's name for a dog named "Felon." During Ransburg's transport to a detention facility, he told the transporting officer, "I ain't no car thief. I'm a carjacker, but I ain't no thief." Ransburg later admitted to interviewing detectives that he had committed a carjacking and abandoned the truck on the freeway.
Holcomb told interviewing police detectives that he had acquired the car the day before from a friend, Jason, who let him borrow it for a couple of days in exchange for $100 or $150. When confronted with information given to police by Fulghum, Holcomb remarked, "Okay, I'll give you the whole fuckin' beat down," and told the detectives he had gotten the Thunderbird the previous Friday night, December 9, 2005. In response to questions about his whereabouts on the afternoon of the carjacking, Holcomb gave several different responses. He could not recall where he was between 3:00 p.m. and 6:00 p.m. on that day, and he had trouble throughout the interview recalling what had occurred that afternoon. Eventually, Holcomb told detectives he had loaned the car to Ransburg at about 1:00 p.m. that day, and that Ransburg returned the car after 8:00 p.m. However, he also inconsistently told them he had loaned the car to another person named Chris. He admitted he owned a pit bull named Felon; when detectives asked whether he had it on December 12, 2005, he replied, "I've had it almost every day."
Holcomb's girlfriend Fulghum told detectives that while she and Holcomb were in the back of the patrol car she had asked him what had happened; he told her his ex-girlfriend Cassie had taken his car with Ransburg, who had returned the previous night from Los Angeles with guns, a shotgun and a military weapon of some kind. Holcomb denied any involvement in the carjacking. Fulghum related to detectives the events of December 12, 2005. According to her, at about 10:00 a.m. that morning Cassie and Ransburg left in the brown Thunderbird, and Holcomb later left briefly with a friend of his named Johnny but returned about 3:30 p.m. at about the time she took a nap. Holcomb then left with his dog at some point because when she awoke he was gone. At about 5:15 p.m. or 5:30 p.m., Holcomb returned and Fulghum noticed the brown car was back at their apartment. She could not say whether or not he had driven the car while she was asleep. At trial, Fulghum and Holcomb's mother both testified that Holcomb did not own the dog Felon; that it belonged to a person named Randy.
In his defense, Holcomb presented testimony that neither his nor Ransburg's fingerprints were found on Morales's truck. He had a psychologist testify about the accuracy of eyewitness identifications as well as photographic lineups. His mother testified that Holcomb was home between 3:30 p.m. and 4:30 p.m. on the day of the carjacking, although she did not personally see him there during that time. Jonathan Carter, a friend of Holcomb's from grade school who had not seen Holcomb in about five years, testified that at Holcomb's invitation he visited with Holcomb at his apartment between 12:30 p.m. and 1:00 p.m., went with him to get Fulghum a gift, and left at about 5:00 p.m. in time to get to his 5:30 p.m. soccer practice.
DISCUSSION
I. Aiding and Abetting Carjacking and Robbery
Holcomb contends the evidence is insufficient to support his conviction for either carjacking or robbery. Asserting there is no evidence he actually perpetrated the offenses, he argues the only possible theory of liability against him is as an aider and abettor, and there is no competent evidence he actually aided or encouraged Ransburg or intended to do so before or during the commission of the offense. Holcomb maintains the sole evidence supporting the prosecution's case shows he was at the scene but did not participate in the carjacking or robbery, and that he only provided aid to Ransburg after the carjacking and robbery were complete. He argues the evidence accordingly shows he is at most liable as an accessory after the fact and not as a principle based on a theory of aiding and abetting.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Snow (2003) 30 Cal.4th 43, 66.) We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Stewart, at p. 790.)
"[A] person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117, quoting § 31.) The California Supreme Court has explained that "an aider and abettor's guilt 'is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.' [Citation.] ' "[O]nce it is proved that 'the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea.' " ' [Citation.] Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus – a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea – knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus – conduct by the aider and abettor that in fact assists the achievement of the crime." (People v. Perez (2005) 35 Cal.4th 1219, 1225, quoting McCoy, at pp. 1117-1118.) While presence at the scene and failure to prevent the crime standing alone are not sufficient to establish aiding and abetting (People v. Campbell (1994) 25 Cal.App.4th 402, 409) they are nevertheless factors to be considered, as are factors of the defendant's companionship, and conduct before and after the offense. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.) Flight is yet another factor that is relevant in determining consciousness of guilt. (Id. at p. 1095.)
Applying these principles, we reject Holcomb's challenge to the sufficiency of the evidence. Alberto, who watched the brown Thunderbird slowly pass by him, specifically identified Holcomb as the front seat passenger in the car who possibly carried the sword. It is settled that the testimony of a single witness may constitute substantial evidence unless it is physically impossible or inherently improbable. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) While Holcomb raises perceived weaknesses in Alberto's identification by pointing to testimony that Alberto told detectives he did not see the passenger "very well" and could not be "really sure" he was the man, Holcomb has not shown anything inherently incredible or physically impossible in Alberto's testimony. And inaccuracies or weaknesses in Alberto's testimony go only to weight of the evidence, not its sufficiency: " ' "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." ' " (People v. Lewis (2001) 26 Cal.4th 334, 361.) "[W]hen the circumstances surrounding [an] identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.)
"Testimony is not inherently improbable unless it appears that what was related or described could not have occurred. [Citations.] 'To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.' " (People v. Johnson (1960) 187 Cal.App.2d 116, 122; see also People v. Barnes (1986) 42 Cal.3d 284, 306.)
Even if Alberto's testimony were not enough, the witnesses testified to the presence of a pit bull in the vehicle, the same type of dog registered to Holcomb, who admitted having the dog with him "almost every day." Holcomb admitted that days before he had obtained possession of the brown Thunderbird used in the crimes and Fulghum testified Holcomb was in his apartment with Ransburg and his former girlfriend on the morning of the incidents, additional links from which a jury could infer Holcomb was present during commission of the offenses.
Thus, substantial evidence places Holcomb as the front seat passenger at the scene of the offenses with Ransburg, who was positively identified by Morales and in fact admitted to detectives that he had committed a carjacking and abandoned the stolen truck on the freeway. Despite Holcomb's appellate claim that he was unaware of Ransburg's felonious intent, the evidence shows Holcomb remained with Ransburg and fled in Morales's truck with him, and Ransburg was found two days later sleeping at Holcomb's mother's apartment where Holcomb was living with his girlfriend. Rather than having only speculation or conjecture to rely upon as Holcomb asserts, the jury could reasonably draw inferences from this evidence that Holcomb was aware of and supported the carjacking and robbery; it could deduce Holcomb saw Ransburg as he exited the Thunderbird, witnessed Ransburg point the pellet gun, and displayed a weapon himself in order to assist Ransburg's demand for Morales's truck and his money.
The evidence in the present case is akin to that in In re Juan G. (2003) 112 Cal.App.4th 1, and In re Lynette G., supra, 54 Cal.App.3d 1087, in which the Courts of Appeal upheld convictions under aiding and abetting theories and rejected arguments that the defendant was merely an innocent bystander where the defendant was in the company of the perpetrator immediately prior to the offense, had fled the scene together with the perpetrator, and was found in the company of the perpetrator during the escape or shortly after the offense. (Juan G., at pp. 3-6; Lynette G., at pp. 1092-1095.) The evidence here reveals more than Holcomb merely aiding in the escape of a principle, which would constitute conduct as a mere accessory. (See People v. Hoover (1974) 12 Cal.3d 875, 879; see also People v. Horton (1995) 11 Cal.4th 1068, 1113-1114.) We conclude substantial evidence supports Holcomb's conviction for the carjacking and robbery offenses.
II. Motion for Mistrial
Holcomb contends the trial court prejudicially erred by denying his motion for mistrial, in which he pointed out a police witness violated the court's pretrial ruling excluding evidence of parole status by testifying he had found a social security card and what "might have been a parolee identification card" in an organizer on the dresser in Holcomb's apartment. Holcomb maintains the court's instruction to the jury to disregard the offending testimony was ineffectual and did not cure the prejudice in view of "the nature of the evidence and thinness of the remaining evidence against [him]."
" ' "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." ' " (People v. Lucero (2000) 23 Cal.4th 692, 713-714; see also People v. Davis (2005) 36 Cal.4th 510, 554; People v. Panah (2005) 35 Cal.4th 395, 444 [mistrial motion should be granted only if the trial court is informed of the prejudice and it judges the prejudice to be insusceptible of being cured by admonition or instruction]; People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) A witness's volunteered statement can provide the basis for a finding of incurable prejudice. (People v. Wharton (1991) 53 Cal.3d 522, 565.)
The People do not dispute that the detective's testimony violated the trial court's in limine order; the question is whether it resulted in prejudicial error. People v. Harris, supra, 22 Cal.App.4th 1575 presented a similar situation in which a witness made an incidental remark about the defendant's parole status. The trial court denied the defendant's motion for a mistrial, struck the comment and instructed the jury to disregard it. (Id. at p. 1580.) The Court of Appeal observed there was "little doubt" that exposing a jury to a defendant's prior criminality presented the "possibility of prejudicing a defendant's case and rendering suspect the outcome of the trial." (Id. at p. 1580.) However, it concluded the error was harmless given the undisputed and overwhelming evidence of guilt; the court concluded it was not reasonably probable the defendant would have obtained a more favorable result had the incidental remark not been made. (Id. at p. 1582.)
Here, as in Harris, we fail to ascertain prejudice in view of the nature of the evidentiary violation and its handling by the trial court, combined with sufficient evidence of Holcomb's guilt. Upon questioning outside the jury's presence, the detective stated he had been advised not to mention Holcomb's parole status, but had forgotten the instruction. His statement was brief and unspecific about the owner of the organizer found in Holcomb's room; the detective testified only that it was in Holcomb's room and also contained what "might have been" a parolee identification card. The evidence showed Ransburg had been found asleep in the room, and thus the jury could have just as easily concluded the organizer, social security card and parolee identification card belonged to him. Further, at the prosecutor's offer to withdraw further evidence linking Holcomb to the organizer, the court precluded her from mentioning the organizer again and instructed the jury to disregard the detective's testimony regarding the organizer and its contents. As a result, there was no direct evidence that Holcomb owned the organizer or was the subject of the identification or social security cards, and the jury was instructed to disregard those matters. We are to presume the jury followed the trial court's admonitions. (People v. Stitely (2005) 35 Cal.4th 514, 559.) The vague nature of the testimony and the court's handling of the matter cured any possible prejudice. (Accord, People v. Wharton, supra, 53 Cal.3d 522, 566.)
Holcomb nevertheless argues he suffered prejudice in that the reference was one that could not be cured by any limiting instruction, relying on cases such as People v. Guerrero (1976) 16 Cal.3d 719 and People v. Morgan (1978) 87 Cal.App.3d 59 (overruled on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 497-498). In Guerrero, the prosecution presented evidence that the defendant committed an uncharged crime – a rape of a 17-year-old girl – as circumstantial evidence he had committed the murder of a different 17-year-old girl. (Guerrero, at pp. 722-723.) The court held testimony of the uncharged offense should have been excluded and that the instruction limiting the jury's use of the evidence could not erase the testimony from the minds of the jurors. (Id. at p. 730.) Guerrero is inapposite. Unlike Guerrero, where the prior rape victim testified to details about the crime against her at trial, the prosecutor in this case did not present comprehensive testimony on Holcomb's prior crimes, the detective merely made an inadvertent reference to a parole identification card. As stated, the detective did not convey the identity of the parolee or owner of the organizer in which it was found. In any event, the testimony here is not anything like the offending testimony in Guerrero; the witness did not say Holcomb had a prior conviction nor did he give a detailed description of a prior crime, in part the basis for the court's conclusion that the testimony in Guerrero was prejudicial. Holcomb's reliance on Morgan, supra, 87 Cal.App.3d 59 fails for the same reasons.
Likewise, the present case is distinguishable from People v. Allen (1978) 77 Cal.App.3d 924, where a witness testified that the defendant himself was "on parole," and the court of appeal noted the matter was an "extremely close case." (Id. at pp. 934-935.) To the contrary here, there is substantial evidence of Holcomb's guilt. Allen itself observed that " '[a]n improper reference to a prior conviction may be grounds for reversal in itself . . . but is nonprejudicial "in the light of a record which points convincingly to guilt. . . ." ' " (Id. at p. 935.) Holcomb's is not the sort of exceptional case where a court's admonition cannot cure the improper subject matter. (Ibid.) On this record, the court did not abuse its discretion denying Holcomb's motion for mistrial.
III. Sentencing Issues
Following the jury's verdict, Holcomb admitted to suffering two prior prison terms stemming from convictions in San Diego County – burglary with use of a knife in January 2002 (Super. Ct. S.D. County, No. SCN137749) and grand theft in April 2003 (Super. Ct. S.D. County, No. SCN156427) – and two serious felony prior convictions – a June 2001 robbery conviction in Riverside County (Super. Ct. Riv. County, No. 100236) and the January 2002 conviction for burglary with use of a knife – and he further admitted that both serious felony prior convictions constituted strikes within the meaning of sections 667, subdivision (b) through (i), 1170.12, and 668. Thereafter, Holcomb moved to strike his prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and section 1385, and also later filed another more specific motion to strike his prior juvenile adjudication on grounds it could not constitute a prior conviction within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466.
At the sentencing hearing, the prosecutor advised the court the People had agreed to dismiss the allegations regarding the June 2001 juvenile prior conviction, leaving one strike and one serious felony prior. The prosecutor went on to request that the court sentence Holcomb to a 12-year term: "[B]ased on his age, the People are asking the court to sentence the defendant to the [section] 215 as the primary count, low term of three years doubled for six, plus the serious felony prior of five and the prison prior, for a total term of 12 years." The court turned to defense counsel's Romero motion to strike, concluding based on Holcomb's criminal history it would be "an abuse of this court's discretion to strike this other strike and put him back out in the community . . . ." It sentenced Holcomb to an 11-year state prison term, stating: ". . . [F]or the reasons stated, the court will impose the low term of three years on count 1, on the [section] 215, doubled under the strike law for a six-year term. The court imposes the five-year consecutive serious felony prior under [section 667, subd. (a)(1)]. And I'm going to strike the prison prior in the interest of justice. So I'm imposing the total term of 11 years. On count 2 the court is also selecting the low term of two doubled under the strike law for six – I'm sorry – for four. That count is running concurrent with the custody imposed on count 1. [¶] Therefore probation is denied. The defendant is sentenced to the term of 11 years in state prison." Contrary to the trial court's statements at the sentencing hearing, the minute order and abstract of judgment indicate the court stayed a one-year prior prison term enhancement.
In part, the prosecutor stated, "After speaking with [Deputy District Attorney] Greenberg after the last court appearance, he did tell me that he agreed that we would not be proceeding – based on the nature of the prior, the juvenile prior, we would not be proceeding on that strike, and that I would be making a motion today to dismiss that. And given that we are not going forward on both strikes, it was his opinion that we should not use this case to argue the aspect of juvenile priors for 25-to-life sentences." The prosecutor later confirmed the understanding: "Then, understanding that agreements had been made by Mr. Greenberg and [Deputy District Attorney] Allard with Ms. Ostbye [defense counsel], that it would not be – that it would be the People's position not to go forward with the juvenile strike, the [Penal Code section] 211 from 2001. That leaves the current charges: One strike and one serious felony prior."
A. Section 654
Holcomb contends his concurrent four-year sentence on the robbery conviction should have been stayed under section 654 under People v. Dominguez (1995) 38 Cal.App.4th 410, because the robbery and carjacking were committed against one victim, Morales, and the theft of Morales's car and wallet resulted from a single act and single objective by Ransburg to deprive Morales of his property.
Section 654 provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Under section 654, "[i]f all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment 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. Liu (1996) 46 Cal.App.4th 1119, 1135; see also People v. Latimer (1993) 5 Cal.4th 1203, 1208.) It is the defendant's intent and objective, not the temporal proximity of his offenses, that determines the indivisibility of the transaction. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Whether a defendant held more than one criminal objective is generally a factual determination and will be upheld on appeal if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466; People v. Nelson (1989) 211 Cal.App.3d 634, 638.) On our review we must accept the evidence in a light most favorable to the sentencing decision and draw all reasonable inferences in its favor. (See e.g., People v. Holly (1976) 62 Cal.App.3d 797, 804.) Citing People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5, Holcomb maintains in reply that the question is one of law because the facts concerning Ransburg's actions are undisputed. We need not resolve the question because we reach the same result under either review standard.
Morales testified that after the Thunderbird stopped in front of his car, Ransburg got out and told him at gunpoint to "get out of the car, that he wanted the car. He needed it and he was going to take it." Morales opened the door and exited. He testified: "And then he [Ransburg] spoke to his friends, the ones that came in the car with him, and they came to – two other guys came over and got in the car. [¶] And then the two guys were inside the car. He was getting ready to get in the car also. He has his leg up. Then he turned around looking at me, and he told me he wanted my wallet. [¶] Then I put my hand inside my pocket and I took out the money. I show it to him, and he just grabbed it like this."
The trial court did not make findings of fact when it imposed the concurrent term on the robbery count. We will infer findings in support of the judgment if such findings are supported by substantial evidence. (E.g., People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Nelson, supra, 211 Cal.App.3d at p. 638.) The evidence suggests that Ransburg first intended to take only Morales's car, and that either perhaps as a result of his discussion with his accomplices or an afterthought, went back for Morales's wallet. We hold section 654 inapplicable to these facts given the time for reflection between Ransburg's demands for Morales's truck and his later demand for his wallet. (Accord, People v. Trotter (1992) 7 Cal.App.4th 363.) In People v. Trotter, the defendant carjacked a taxi and during a police chase fired three shots at the pursuing officer (the second shot a minute apart from the first and the third shot a few seconds later) constituting assaults that defendant argued were subject to section 654 as part of a single course of conduct to avoid apprehension. (Id. at pp. 365-366.) The Court of Appeal disagreed, holding "[e]ach shot posed a separate and distinct risk" to the police officer and nearby drivers; that "[a]ll three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible." (Id. at pp. 367-368.) Applying the reasoning of People v. Harrison, supra, 48 Cal.3d 321, which the Trotter court observed was not limited to sex crimes, the court stated, " '[D]efendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.' " (Trotter, 7 Cal.App.4th at p. 368 & fn. 3, quoting Harrison, at p. 338.) Thus, the court found section 654 inapplicable largely because there was time prior to each shot for the defendant to reflect on his next action, and they were separate acts of violence on different occasions that placed different people and officers in danger. (Trotter, at p. 368 & fn. 3.)
As in Trotter, here there was a brief period of time between Ransburg's demand for Morales's car and his wallet. Each time Ransburg approached Morales with what Morales believed to be a handgun posed a separate risk of harm to Morales. We decline to characterize Ransburg's objective so broadly as an intent to deprive Morales of his property; instead, Ransburg had time to reflect for a short period as he was entering the truck and nevertheless decided to go back for Morales's wallet. It is of no moment that Ransburg's offenses were committed against a single victim. The Harrison court noted that its section 654 analysis was "directed to any case in which 'a number of base criminal acts' were committed against a single victim." (People v. Harrison, supra, 48 Cal.3d at p. 337; People v. Trotter, supra, 7 Cal.App.4th at p. 368, fn. 3.) Under the circumstances, we conclude the court did not err in declining to stay the concurrent sentence on the robbery count under section 654.
B. Correction of Abstract of Judgment
Holcomb contends, and the People concede, that we should order the abstract of judgment be corrected to reflect that the trial court struck, rather than stayed, one of Holcomb's prior prison term conviction enhancements. We agree the abstract of judgment incorrectly reflects the trial court's action, which was to strike one of the prison priors. We direct the trial court to amend the abstract of judgment to reflect its striking of the prior prison term enhancement (§§ 667.5, subd. (b); 668) and also to reflect its action on (either imposing or striking) the second prison term enhancement in accordance with part III(C) of this opinion, post. Thereafter the court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
C. Second Prior Prison Term Enhancement
Pointing out Holcomb admitted allegations that he served two prior prison terms and noting the court struck one of those, the People ask us to remand the case so that the court can either impose or strike the second prison term enhancement. Holcomb responds that the record indicates the court actually struck both prison term enhancements; that its comment on the record indicating it was striking the prison prior in the interests of justice presupposed the court had already stricken the first prison prior. Alternatively, Holcomb argues any failure by the trial court was invited by the prosecutor by her omission of any reference to one of the priors or was waived by her failure to object at the time of sentencing.
Holcomb did indeed admit to serving two separate prior prison terms, but the trial court addressed and struck only one, unspecified, prison term enhancement. We agree with the People that the court's failure to impose or strike the second prison term enhancement under section 1385 is a legally unauthorized sentence (see People v. Scott (1994) 9 Cal.4th 331, 354), and that remand is necessary for the court to specify which prison term enhancement it already elected to strike under section 1385 and then either impose the second prior prison term enhancement or strike it with an on-the-record statement of reasons as to why striking the second prior conviction enhancement would serve the interests of justice. (See People v. Bradley (1998) 64 Cal.App.4th 386, 391; People v. Bowden (2002) 102 Cal.App.4th 387, 395.)
D. Second Serious Felony Enhancement
The People contend the court failed to impose a five-year enhancement for the second serious felony prior conviction under section 667, subdivision (a); that the court does not have authority to strike that enhancement and it is unclear from the record whether the court struck it as a juvenile adjudication or simply forgot to impose it. According to the People, in either case, the sentence is unauthorized and the matter should be remanded for purposes of imposing the second five-year enhancement under section 667, subdivision (a). Holcomb responds that the People waived this argument or invited any such error by failing to request imposition of the second five-year enhancement at the sentencing hearing. He also maintains the record reflects that the prosecutor, his counsel and the trial court all understood that the court would lawfully impose only one enhancement based on his adult conviction. Finally, Holcomb argues the court correctly refused to use his juvenile adjudication as a basis for imposing an enhancement because to do so would violate his right to a jury trial as set forth in Apprendi, supra, 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. 270.
We agree with Holcomb that the record reflects the People's decision to dismiss the allegations on Holcomb's juvenile prior for purposes of any enhancement, leaving, as the prosecutor stated at the sentencing hearing, "one strike and one serious felony prior." (See footnote 4, ante.) That agreement explains why the prosecutor did not ask the court to impose the additional five-year serious felony enhancement under section 667, subdivision (a). The trial court did not err by imposing only one such enhancement.
DISPOSITION
The sentence is reversed and the matter remanded to the trial court to specify which prison term enhancement it had elected to strike under Penal Code section 1385 and then either impose the second prior prison term enhancement or strike it with an on-the-record statement of reasons as to why striking the second prior conviction enhancement would serve the interests of justice. The trial court is directed to thereafter amend the abstract of judgment accordingly and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.