Opinion
D0D069791
07-28-2017
THE PEOPLE, Plaintiff and Respondent, v. RAMON HURTADO, Defendant and Appellant.
Boyce & Schaefer and Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN338408-1) APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed as modified. Boyce & Schaefer and Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ramon Hurtado of premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a); counts 1, 2), discharging a firearm from a vehicle (§ 26100, subd. (c); counts 3, 4), and assault with a deadly weapon (§ 245, subd. (a)(1); counts 5, 6). The jury found true allegations as to counts 1 through 4 that Hurtado personally inflicted great bodily injury (§ 12022.7, subd. (a)) and used a firearm (§ 12022.5, subd. (a)), and as to the counts 1 and 2 attempted murders that he also discharged a firearm (§ 12022.53, subd. (d)). As to count 5, it found true allegations that Hurtado personally inflicted great bodily injury and used a deadly weapon (§ 1192.7, subd. (c)(23)). The jury found true as to all counts that Hurtado committed the offenses for the benefit of, at the direction of or in association with a criminal street gang (§ 186.22, subd. (b)). Hurtado admitted an allegation that he had served a prior prison term (§§ 667.5, subd. (b), 668). The court sentenced Hurtado to a total term of 22 years 8 months plus 80 years to life, consisting of consecutive 15-year-to-life terms on counts 1 and 2, consecutive 25-year-to-life enhancements for each of the firearm discharge allegations, three-year enhancements for each of the great bodily injury allegations on counts 1 and 2, a three-year term for the count 5 assault plus a 10-year enhancement for the gang allegation, a one-year term for the count 6 assault plus one year eight months for the corresponding gang enhancement, and a one-year term for the prison prior, all to run consecutive to the remaining sentence.
Statutory references are to the Penal Code unless otherwise specified.
Relying on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which was decided following his trial, Hurtado contends the People's gang expert improperly related case-specific testimonial hearsay in testifying that two third-party individuals were members of a street gang for purposes of proving a pattern of criminal activity (§ 186.22, subd. (f)), and admission of this evidence violated his Sixth Amendment right to confront and cross-examine witnesses. He contends if we conclude he forfeited such a claim, that his counsel's failure to object constituted constitutionally ineffective assistance. Hurtado further contends the trial court erred by imposing three-year enhancements under section 12022.7, subdivision (a) on counts 1 and 2 in addition to the section 12022.53, subdivision (d) enhancements. The People concede the latter sentencing point, and we agree that the court should have imposed but stayed the three-year enhancements. We otherwise conclude Hurtado has not demonstrated the trial court abused its discretion in admitting the expert testimony, and affirm the judgment as modified below.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2014, Hurtado and others in a vehicle approached Juan Jimenez and David Canseco. At that time, Hurtado was a member of a subset of the Varrio San Marcos criminal street gang and known by the moniker "Malo" or "Maldito." From the front passenger seat, Hurtado asked Jimenez, "Where are you from?" After Jimenez responded that they were "from nowhere," the driver said, referring to Canseco, "Oh, he's the soka," using a derogatory term for members of the South Los gang, a rival to the Varrio San Marcos Wolf Pack gang. Hurtado then shot a firearm at both men, hitting Jimenez three times. Jimenez knew Hurtado as "Malo."
In July 2014, Hurtado stabbed Gerardo Mendez during a tussle that occurred after Mendez entered a taco shop and said, "Fuck mekos," a derogatory term, to an apparent group of Varrio San Marcos gang members. Workers stopped the fight and Hurtado left the shop, saying, "Your homies, they got shot at the liquor store. I did that." Mendez testified Hurtado then said his gang name, "Malo."
In August 2013, Hurtado, Alexis Caballero and another man approached Omar Caballero in a grocery store parking lot after spotting him in the store. Omar Caballero was punched in the back of the head and stabbed in the lower back. Omar Caballero later told detectives that someone said "wolf pack" during the attack. Detectives identified Hurtado from the store's video surveillance system as one of the attackers, but the video did not show who stabbed Omar Caballero.
Before trial, the People sought in limine to introduce particular gang evidence, including expert testimony on the primary activities of the Varrio San Marcos gang as well as certified court records of convictions for purposes of proving a pattern of criminal gang activity and to support the expert's opinion about the gang's primary activities. As for one of the convictions involving Alexis Caballero, the People argued its admission did not violate the confrontation clause because the conviction was not testimonial. Hurtado objected to introducing the Alexis Caballero conviction in his trial brief, arguing it was irrelevant, inadmissible hearsay, and a violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford) as he had no opportunity to cross-examine Caballero. His counsel repeated that objection during the in limine motions hearing, arguing there were other convictions to serve as predicate offenses and the prejudice of introducing Hurtado's codefendant's conviction as a predicate offense would outweigh its probative value. The trial court admitted the gang evidence, including Caballero's conviction subject to redaction.
At trial, the People called San Diego Sheriff's Department Detective Jeff Creighton as a gang expert. The detective stated he had attended a regional academy on law enforcement and had over 170 hours of gang-specific training on Southern California gang culture and gang crimes. Detective Creighton testified he was presently assigned to the San Marcos sheriff's station in the street narcotics and gang division. Before that, he was with the gang enforcement team and worked patrol for five years, during which he had "countless" gang contacts and investigated gang crimes. He explained that as part of the gang enforcement team, he went out every day and made contacts with gang members or associates to obtain information about who was active and what incidents were occurring or had occurred, and to find out which gang members were causing problems and where they were "posting up" or congregating. Detective Creighton investigated both the June 2014 shooting and the July 2014 stabbing.
Detective Creighton testified generally about the history of criminal street gangs of San Marcos, including the Varrio San Marcos gang. He explained the Varrio San Marcos gang's signs and symbols, its claimed geographical locations, its subsets and total membership, and its rivalry with the South Los gang. Detective Creighton testified that based on his training, experience and his ten years of working in the city of San Marcos being involved in numerous investigations of Varrio San Marcos violent acts, that the primary activities of the gang spanned from murder to assault to robberies, carjackings, narcotics trafficking, narcotics sales, batteries and vandalism. He explained the importance of the gang having a reputation for violence and having respect within the gang, as well as the benefit to the gang when members commit violent acts against rival gangs.
During his testimony, Detective Creighton was asked whether he was aware of an individual named Gerardo Sambrano and whether he was a gang member on June 23, 2013. The detective responded affirmatively to both questions. The detective was then asked to review a certified record of Sambrano's conviction for an offense Sambrano committed on that day and asked to describe the event. Detective Creighton testified that Sambrano, another gang member, and a third person approached Arturo Bazan, a South Los associate, and asked where he was from. When Bazan responded he was not a gang member, Sambrano displayed a pistol and ordered another gang member to assault an individual, then pulled his gun out. Sambrano and his cohorts walked away after someone saw Bazan's mother and told Sambrano not to shoot.
Detective Creighton was also presented with another certified document reflecting a November 21, 2014 conviction of Sambrano and asked whether on that date, Sambrano was a member of the Varrio San Marcos criminal street gang. The detective responded that he was. Asked to explain the circumstances of the event, Detective Creighton testified that on that day, Sambrano parked his car on Autumn Drive, approached a group on foot and discharged a firearm toward Jesus Guzman but missed him, then returned to his car and drove away.
Finally, based on another certified record, the prosecutor asked Detective Creighton whether he was aware of an individual named Casimiro Rosales and an offense he committed on December 6, 2013. The detective responded that he was, and that Rosales was a Varrio San Marcos gang member on that date. He explained that on that day, Rosales along with two other Varrio San Marcos gang members chased two South Los gang members into a taco shop, then assaulted one of the South Los men with bottles, chairs and a meat cleaver.
DISCUSSION
I. Admissibility of Gang Expert Testimony
Hurtado contends Detective Creighton's testimony that Sambrano and Rosales were gang members when they committed their offenses was based on testimonial hearsay offered for its truth, and thus erroneously admitted in violation of his Sixth Amendment right to confront and cross-examine witnesses. Specifically, he maintains that in light of Sanchez, supra, 63 Cal.4th 665, an individual's gang membership is case-specific information requiring independent proof. According to Hurtado, because Detective Creighton's opinion stemmed from his contacts with gang or community members, his knowledge of Sambrano's and Rosales's gang membership was based on testimonial hearsay.
The People contend Hurtado forfeited this claim by failing to raise it at any point in the trial proceedings either in his trial brief, in opposing the pretrial evidentiary motions, or during Detective Creighton's trial testimony. Hurtado admits he failed to object, and generally a defendant who fails to object to the admission of evidence on the basis of the confrontation clause forfeits the right to raise the issue on appeal. (People v. Redd (2010) 48 Cal.4th 691, 730; People v. Thornton (2007) 41 Cal.4th 391, 427.) But we agree with Hurtado that any objection on Crawford grounds at those times would have been futile, as the court was bound to follow pre-Sanchez decisions permitting an expert to relate case-specific information as the basis for his or her opinion on the theory it is not admitted for its truth and thus not hearsay. (See, e.g., People v. Clark (2016) 63 Cal.4th 522, 563 [defendant's failure to raise confrontation clause objection at trial did not forfeit Crawford challenge because defendant's trial occurred before the decision in Crawford]; People v. Sanchez, supra, 63 Cal.4th at pp. 683 & 686, fn. 13 [discussing and disapproving People v. Gardeley (1996) 14 Cal.4th 605 "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules" as well as other prior California Supreme Court opinions "concluding that an expert's basis testimony is not offered for its truth, or that a limiting instruction, coupled with a trial court's evaluation of the potential prejudicial impact of the evidence . . . sufficiently addresses hearsay and confrontation concerns"]; People v. Stamps (2016) 3 Cal.App.5th 988, 995 [Sanchez announced a "paradigm shift" in the law]; People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7, review granted Mar. 22, 2017, S239442 [claim of Sanchez error not forfeited where objection would likely have been futile].) "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237-238; see also People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 ["An objection in the trial court is not required if it would have been futile"].) And it is not ineffective assistance of counsel to fail to object to admission of evidence where an objection would have been futile. (See People v. Lewis (2001) 26 Cal.4th 334, 359 ["Where 'there is no sound legal basis for objection, counsel's failure to object to the admission of the evidence cannot establish ineffective assistance' "]; People v. Diaz (1992) 3 Cal.4th 495, 562.)
The People respond that Detective Creighton did not recite inadmissible hearsay to the jury. They point out the detective did not describe any out-of-court statements—oral or written verbal expressions or nonverbal conduct intended as a substitute for such expression—that were made during his contacts, and thus the record does not demonstrate the court admitted inadmissible hearsay. The People further argue that the detective's opinion about the gang membership of nonparties falls within the category of admissible background facts; that a "nonparty's gang affiliation pertains to the 'gang's history and general operations' " and thus even if hearsay, it was admissible under state law. With respect to the confrontation clause, the People argue that Hurtado has not shown any purported hearsay relied upon by Detective Creighton was testimonial, that is, " 'made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.' " Because the record does not disclose the primary purpose, the People argue, Hurtado cannot meet his burden of affirmatively showing error. Finally, the People contend that even if the court erred by admitting Detective Creighton's testimony on that point, it would be harmless under any review standard since even without Sambrano's and Rosales's prior offenses, there was sufficient evidence proving the Varrio San Marcos gang's pattern of criminal activity. A. Standard of Review
We review the court's ruling on admissibility of Detective Creighton's expert opinion, including its determination of issues concerning the hearsay rule, for abuse of discretion. (See People v. Clark, supra, 63 Cal.4th at p. 190; People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) B. People v. Sanchez
In Sanchez, the California Supreme Court reversed true findings on criminal street gang enhancements based on the admission of testimony from a gang expert police detective who had related case-specific hearsay statements concerning the defendant's gang membership. (Sanchez, supra, 63 Cal.4th at pp. 670, 699-700.) The expert had related facts and statements contained in a California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.; STEP) notice received by the defendant, a field identification (FI) card, and other police documents, and from those gave his opinion that the defendant was a member of a particular street gang. (Id. at pp. 672-673, 699.) The expert admitted he had not met the defendant, was not present when the defendant was given the STEP notice or during any of the other police contacts, and his knowledge of shootings and other incidents involving the defendant was derived from police reports or the FI card. (Id. at p. 673.)
In holding the court prejudicially erred by admitting the detective's gang affiliation testimony from the STEP notice and police reports, the Sanchez court disapproved a long line of authority holding an expert's testimony relating the hearsay basis of his or her opinion is not offered for its truth, or that a curative instruction sufficiently addressed hearsay or confrontation clause concerns. (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13, disapproving, among other cases, People v. Bell (2007) 40 Cal.4th 582, 608 and People v. Montiel (1993) 5 Cal.4th 877, 919.) It held the reasoning underlying those cases was untenable, and adopted the rule that "[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Sanchez, at p. 686; see also id. at p. 683.) Under those circumstances, "it cannot logically be asserted that the hearsay content is not offered for its truth" (id. at p. 683) and the statements were required to be admitted through an applicable hearsay exception. (Id. at pp. 684, 686.) Additionally, if the hearsay was testimonial within the meaning of Crawford, its admission would violate the Sixth Amendment's confrontation clause unless there was a showing of unavailability and the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing. (Id. at p. 686.) The court explained that testimonial hearsay constitutes information gathered during an official investigation of a completed crime, including " 'statements about a completed crime, made to an investigating officer by a nontestifying witness . . . .' " (See People v. Vega-Robles (2017) 9 Cal.App.5th 382, 409, quoting Sanchez, at p. 694.) On the other hand, "[n]ontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, at p. 689.)
Case specific facts are facts "relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at pp. 685-686.)
Sanchez, however, "does not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field. Indeed, an expert's background knowledge and experience is what distinguishes him from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth." (Sanchez, supra, 63 Cal.4th at p. 685.) Thus, the court held, "[g]ang experts . . . can rely on background information accepted in their field of expertise under the traditional latitude given by the Evidence Code. They can rely on information within their personal knowledge, and they can give an opinion based on a hypothetical including case-specific facts that are properly proven. They may also rely on nontestimonial hearsay properly admitted under a statutory hearsay exception. What they cannot do is present, as facts, the content of testimonial hearsay statements. '[T]he confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial.' [Citation.] . . . [O]nly when a prosecution expert relies upon, and relates as true, a testimonial statement would the fact asserted as true have to be independently proven to satisfy the Sixth Amendment." (Ibid.)
Sanchez instructs that "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay." (Sanchez, supra, 63 Cal.4th at p. 680.)
The Sanchez court determined that the expert there had improperly related as true statements from the police reports, which were testimonial as compiled during police investigation of the completed crimes (Sanchez, supra, 63 Cal.4th at p. 694), and the STEP notice, in which an officer had recorded biographical information and statements for the primary purpose to be later used at trial. (Id. at p. 696.) The court could not reach the same conclusion as to the FI card, as the parties had not focused on the issue and it was not clarified, "leaving the circumstances surrounding the preparation of the FI card unclear." (Id. at p. 697.) C. Analysis
Here, Hurtado's sole challenge is to Detective Creighton's conclusion that Sambrano and Rosales were gang members. He does not argue the court erred by admitting his testimony relating statements concerning the specific criminal acts of which they were charged and convicted as evidenced by the certified records of their convictions. As to the challenged testimony, we agree with the People that Hurtado has not demonstrated that the underlying basis for Detective Creighton's conclusion is either hearsay, or even if hearsay, that it is testimonial.
That is not surprising. Those certified records are admissible under Evidence Code section 452.5, which "states a new hearsay exception for certified official records of conviction, which may be offered to prove not only the fact of a conviction, but the commission of the underlying offense." (People v. Duran (2002) 97 Cal.App.4th 1448, 1461; see also People v. Ochoa (2017) 7 Cal.App.5th 575, 589, fn. 10 [concluding an expert did not relate inadmissible hearsay to prove a certain individual was affiliated with a gang because that affiliation was shown by his plea of no contest reflected in a record of conviction, citing Duran]; People v. Roa (2017) 11 Cal.App.5th 428, 452 [experts were permitted to relate facts underlying defendant's qualifying offenses to the jury because the facts were independently proven by documentary evidence and thus Sanchez's limitations did not apply].)
First, the detective did not relate any out-of-court statements as the basis for his conclusions that either Sambrano and Rosales were gang members on the specified dates of their criminal acts. He was simply asked if he knew the men and whether on those dates they were gang members, answering yes to those questions. On this record, the particular basis for Detective Creighton's conclusion was left unexplained; it could have been based on his personal knowledge of the men arising from his many years of experience investigating Varrio San Marcos gang crimes and from his various contacts with gang and community members. Indeed, we presume in favor of the judgment absent a showing to the contrary that his opinions stemmed from such general subject matter knowledge and personal experience. (See People v. Williams (2013) 58 Cal.4th 197, 298-299 [" ' " 'error must be affirmatively shown' " ' "].) As Sanchez instructs, an expert's reliance on such general background information and expertise does not run afoul of the state hearsay rule or the confrontation clause. (Sanchez, supra, 63 Cal.4th at p. 685; accord, People v. Vega-Robles, supra, 9 Cal.App.5th at p. 413 [detective's testimony about information he received from informants did not offend the confrontation clause as he did not testify to any particular statement made by any one person to him about a codefendant's gang affiliation, status, or drug trafficking activities; the statements were based on his personal knowledge and he was subject to cross-examination].)
However, Detective Creighton testified generally that he had engaged in contacts with gang and community members while working for the gang enforcement team and on patrol. Hurtado maintains that the detective's knowledge based on contacts with gang or community members means his conclusion necessarily related what someone else had told him, and thus it is " 'testimony about' the contacts where . . . hearsay was related.' " But again, Detective Creighton did not in fact relate any specific statements made by others in reaching his conclusions. And even if we infer his conclusion was based on his gang and community contacts, he related those sources only in general terms. Sanchez expressly authorizes an expert's reliance on such non-case-specific hearsay sources: "Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests. . . . There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception. [¶] What an expert cannot do is relate as true case specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.)
Further, assuming Detective Creighton somehow related case-specific hearsay in reaching his conclusion that Sambrano and Rosales were gang members on particular dates, Hurtado has not shown any of the hearsay was testimonial. The detective did not explain whether those contacts were formal and investigatory, criminal in nature, or friendly policing efforts. Nothing in the record suggests any of Detective Creighton's contacts were made during an official investigation of a completed crime as opposed to during an ongoing emergency, or were for some purpose unrelated to preserving facts for later use at trial. (Sanchez, supra, 63 Cal.4th at pp. 689, 694.) "As Sanchez makes clear, to violate Crawford, the out-of-court statement must be made under circumstances that entail some formality or solemnity." (People v. Vega-Robles, supra, 9 Cal.App.5th at p. 413.) As a result, as in Sanchez where the court could not determine whether the statements taken from the FI card were testimonial, we cannot say the detective's contacts elicited testimonial hearsay, and we will not presume they did absent an affirmative showing otherwise. (People v. Ochoa, supra, 7 Cal.App.5th at pp. 584-585 [where no contemporaneous objection was lodged, court would not assume admissions to gang membership related by expert were testimonial]; accord, People v. Vega-Robles, at p. 414 [record was silent as to whether detective's testimony concerning a codefendant's validation as a gang member was or was not "made in the course of an ongoing investigation, . . . for the purpose of memorializing facts related to past criminal acts for future use at trial, or whether it was a sworn statement or otherwise attended by some level of solemnity"].)
We will not assume that all contacts with law enforcement are formal or for the purpose of preserving facts for use at trial. Because Hurtado failed to object at trial, the record is undeveloped on this point. As we have stated, Hurtado bears the burden on appeal of affirmatively demonstrating error (People v. Williams, supra, 58 Cal.4th at pp. 298-299), and his burden is unmet with respect to the contacts described by Detective Creighton. (Sanchez, supra, 63 Cal.4th at p. 697; People v. Ochoa, supra, 7 Cal.App.5th at pp. 584-585).
II. Three-Year Section 12022 .7 Enhancements
Hurtado contends the trial court erred by imposing the consecutive three-year enhancements to the attempted premeditated murder convictions under section 12022.7, subdivision (a) and also imposing the 25-year-to-life enhancements under section 12022.53, subdivision (d). The People concede that the court should have stayed the three-year enhancements. We agree. "An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d)." (§ 12022.53, subd. (f).) Because the court also imposed the 25-year-to-life enhancements under section 12022.53, subdivision (d) for intentionally discharging a firearm with great bodily injury, the court should have imposed but stayed the three-year great bodily injury enhancements under section 12022.7. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130.) Accordingly, the judgment should be modified to reflect a stay of execution of the three-year enhancements on counts 1 and 2.
Under section 12022.53, subdivision (d), the court must impose an additional term of 25 years to life in prison if the jury finds the defendant "personally and intentionally discharge[d] a firearm . . . [,] proximately caus[ing] great bodily injury . . . to any person other than an accomplice." Under section 12022.7, subdivision (a), the court must impose an additional three-year term if the defendant "personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony." --------
DISPOSITION
The judgment is modified to reflect a stay of execution of the three-year enhancements imposed under section 12022.7, subdivision (a) on counts 1 and 2. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.