Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C157080
Jenkins, J.
Defendant and appellant Jesus Warith Jihad (defendant) appeals the judgment and sentence imposed after a jury convicted him of first degree murder of his wife Aisha Hendricks and assault with a deadly weapon on Aisha’s son, D.H., and her sister, Emma Bowens. Defendant argues that his first degree murder conviction should be reversed on two grounds, namely, (1) insufficiency of the evidence and (2) because the trial court’s response to a jury question was inadequate. Defendant also argues that the trial court erred by enhancing his sentences on the assault convictions under Penal Code section 12022 for use of a deadly weapon.
Further statutory references are to the Penal Code unless otherwise noted.
We conclude that defendant’s arguments for reversal of his conviction for first degree murder are without merit and therefore affirm the conviction. However, we reverse the trial court’s imposition of sentencing enhancements under section 12022 and remand the case to the trial court with instructions to amend the abstract of judgment in that regard. In all other respects, the judgment of conviction and sentence are affirmed.
Procedural Background
On December 17, 2007, the Alameda County District Attorney filed an information charging in count one that on or about July 8, 2007, defendant murdered Aisha Hendricks in violation of section 187, subdivision (a). The information also charged in counts two and three that on the same day defendant committed an assault with a deadly weapon against Jane Doe (Emma Bowens) and D.H., in violation of section 245, subdivision (a)(1).
In relation to count one, the information alleged that defendant used a deadly weapon, a knife (§ 12022, subd. (b)(1)), and the special circumstance that defendant had previously been convicted of second degree murder (§ 190.2, subd. (a)(2)). In relation to counts two and three, the information alleged that defendant used a deadly weapon, a knife (§ 12022, subd. (b)(1)), and that defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The information also alleged that defendant had suffered three prior convictions and must be sentenced under the Three Strikes Law (§§ 1170.12, subd. (c)(2) and 677, subd. (e)(2)).
Presentation of evidence in defendant’s jury trial commenced on September 22, 2008. Defendant represented himself at trial with the assistance of advisory counsel. On September 25, 2008, the parties concluded the presentation of evidence. Out of the presence of the jury the trial court received defendant’s admissions to the prior convictions alleged and to the special circumstance allegation of a prior murder conviction. The trial court found a factual basis for the allegations and that defendant knowingly waived his rights to a jury trial on the allegations. On September 30, 2008, the jury returned guilty verdicts on all counts. As to count one, the jury’s verdict was that defendant “did unlawfully, and with malice aforethought, and with deliberation and premeditation, murder Aisha Hendricks.” (Italics added.) The jury also found true the allegations that defendant used a deadly weapon in the commission of the crimes and that he personally inflicted great bodily injury on the assault victims.
On October 29, 2008, the trial court sentenced defendant to a term of 25 years-to-life without the possibility of parole on count one (first degree murder) and two consecutive sentences of 25 years-to-life on counts two and three (assault with a deadly weapon) pursuant to the Three Strikes Law. The court also imposed a further consecutive term totaling 21 years, comprised of three years (one year on each count) for personal use of a deadly weapon (§ 12022, subd. (b)(1)), plus three years for the infliction of great bodily injury in count 2 (§ 12022.7), as well as five years for each of defendant’s three prior convictions (§ 667, subd. (a)(1)). The court also imposed various court fees and a restitution fine. Defendant filed a timely notice of appeal on November 10, 2008.
Facts
At trial, members of Aisha Hendricks’s family and various friends and neighbors testified about defendant’s deadly knife attack on Aisha and his knife assault on members of her family. This testimony was preceded by the testimony of Ametrius Sidney, a 911 dispatcher with the Oakland Police Department. Through her testimony, the prosecution introduced a recording of a 911 call received at 9:22 p.m. on July 8, 2007. In the recording, an hysterical female caller gives the address 2345 92nd Street and tells the dispatcher that defendant is “out here stabbing Aisha.” The caller screams that “she’s bleeding” and that “he’s standing over her with a knife.” The caller stayed on the line until the police arrived and contacted defendant, but she never gave her name to the dispatcher.
Mary Etta Richardson lived at 2345 92nd Street in apartment number 10, next door to apartment 11 where Aisha Hendricks and defendant lived. On the evening in question, Richardson testified that she was in the bedroom at the rear of the apartment when she heard a lot of loud noise coming from apartment number 11. About half an hour later, Richardson heard a banging on her door and a voice cry, “Somebody help me.” Richardson recognized the voice as that of Aisha Hendricks. Richardson got out of bed and opened the door. When she looked outside, she saw Aisha sitting near the top of the stairwell with her back covered in blood. Richardson called the police. After she called the police, Richardson watched from her kitchen window. Aisha was still sitting on the stairs. Defendant came up to Aisha and said, “How [do] you like me now?” Richardson then saw Aisha fall and roll down the stairs.
Gregory Cameron testified that he knew defendant and his wife Aisha, and that he lived in an apartment adjacent to theirs. On the evening in question, Cameron was in his apartment when he heard a woman screaming, “Help, help.” When he went outside, he saw defendant chasing Aisha’s sister, Emma Bowens, around the parking lot. Defendant had a steak knife in his hand and was trying to stab Emma with it. Cameron saw defendant stab Emma with the knife several times before she managed to run into her apartment and lock the door.
Cameron then noticed that Aisha was sitting at the top of the stairs to the upper apartments. Aisha was crying, covered in blood, and was telling defendant to stop. Cameron ran off to fetch Aisha’s son D.H. A few minutes later, he returned to the scene with D.H. and a couple of his friends. Defendant came out from behind a bush with a knife and everyone scattered. Defendant attacked D.H. and cut him on the cheek with the knife. Cameron retreated to the stairs of his apartment, looked back, and saw defendant standing beside Aisha. Cameron heard defendant say, “I told you I would get you.”
Larou Martin is Gregory Cameron’s stepbrother and lives in the same apartment. Larou testified that he was in his bedroom on the night in question when he heard a woman screaming. He looked out of the window and saw defendant chasing Emma Bowens in the parking lot. Defendant was holding a knife with a small blade. Emma ran into her apartment. Larou watched as defendant went up the stairs and into his apartment, then came back out holding a larger knife. Aisha was sitting at the top of the stairs at the front of the apartment. Larou saw defendant stab Aisha a couple of times in the back with the larger knife. After defendant stabbed her, Aisha rolled down the stairs. D.H. and a couple of his friends appeared and defendant chased them off with the knife. Larou saw defendant return to where Aisha was lying. Defendant stood over Aisha saying something, but Larou could not hear what he was saying.
Janee Gill and her two daughters, Shaniqwa Ford and Wilyana Jenkins, lived in a downstairs apartment next door to Emma Bowens. Janee testified that on the night of July 8, 2007, her daughter Wilyana ran into the apartment in a frenzy, screaming that defendant was “slicing up” Emma. Gill went to the door to see what was going on. Gill saw defendant and Aisha at the top of the stairs. Gill saw defendant stab Aisha several times before Aisha began to stumble down the stairs. Gill turned back into her apartment to try to calm her children down. When Gill went back to look outside, she saw Aisha lying on the ground and with defendant standing over her body. Gill stated that defendant would not let anyone get close to help Aisha. If someone tried to approach, defendant ran at the person with the knife.
Shaniqwa Ford also testified that on the evening in question her sister Wilyana ran into the apartment crying. Ford ran outside, and saw Aisha and defendant were at the top of the stairs. Aisha was crying, “Help, help,” as defendant stabbed her repeatedly. Defendant then threw Aisha down the stairs. Aisha lay on the ground at the bottom of the stairs, still calling for help. Defendant would not let anyone get close and swung the knife if anyone tried to approach. Aisha’s son D.H. ran up and defendant stabbed him in the face.
Wilyana Jenkins testified that at the time of the incident in question she was 15 years old. Jenkins knew Aisha and defendant because they lived in an upstairs apartment near the stairwell. Jenkins testified that earlier in the day of the murder, she was standing in the stairwell that led up to Aisha’s apartment. Jenkins heard Aisha and defendant arguing loudly in their apartment. Jenkins heard defendant saying that Aisha was “going to pay for whatever [her] sisters did to him; she was going to have to pay for it.” Jenkins went to her apartment at number 3. As she was going in, she heard Niesha on the phone in Emma Bowens apartment telling the police defendant threatened to kill her and Aisha. When Jenkins came back out of her apartment shortly afterwards, she saw defendant talking to the police.
On the night of the murder, Jenkins was again sitting outside on the stairs. From inside Aisha’s apartment, Jenkins heard Aisha say “Stop” and “What are you doing this for?” Jenkins then saw defendant come out of the apartment with a kitchen knife in his hand that had a blade about eight inches long. Defendant went down the stairs and into Emma Bowens apartment. Jenkins then saw Bowens run out of her apartment holding her chest and neck. Defendant chased after Bowens in the parking lot. A couple of minutes later, Aisha staggered out of the apartment covered in blood. From the way Aisha was walking, Jenkins could tell she had been stabbed in the back. Aisha was “tumbling and saying, ‘Can ya’ll go get my son.’ ” Jenkins testified that after Bowens ran back into her apartment, defendant came back up the stairs. Aisha was slowly trying to come down the stairs. Defendant went behind Aisha and pushed her down the stairs. After Aisha landed at the bottom of the stairs, defendant saw D.H., ran after him and sliced his face with a knife. Defendant came back and stood over Aisha, “like he didn’t care, and he was just standing over her [] laughing like . . . it was a joke or something.”
Three members of the murder victim’s family testified at trial — her two sisters Niesha Bowens and Emma Bowens, and her son D.H. Niesha testified that she lived with defendant, her sister Aisha and her nephew D.H. in apartment 11 at 2345-92nd Street. Her sister Emma lived downstairs in apartment 1 immediately below. On the evening in question, Niesha was lying on the couch in the living room of her sister Emma’s apartment. Niesha heard a lot of noise and people screaming. The sounds came from Apartment 11 right above her. Niesha went outside and saw defendant coming down the stairs with a knife in his hand. Defendant said he had stabbed Aisha. Niehsa ran back into Emma’s apartment to get to a phone. Niesha saw Emma come out of the bedroom just as defendant entered the apartment. Emma turned away from defendant and he began to stab her repeatedly and she cried out for help. Emma escaped from defendant and ran outside. Niesha watched as defendant ran after Emma and chased her around some parked cars. Emma fell and defendant stabbed her again. Emma managed to get up and run back to the apartment. Niesha opened the door to let her in and then closed and locked the door.
After letting Emma back into the apartment, Niesha looked out the living room window again and saw Aisha coming down the stairs holding the handrail with both hands as defendant stabbed her in the back. Aisha let go of the handrail and rolled down the stairs. After Aisha landed at the bottom of the stairs, defendant walked around her body with the knife in his hand and would not allow anyone to approach. Niesha heard defendant say, “Nobody here to help you now. You ain’t so bad now.”
On cross-examination, Niesha stated that earlier on the day of the murder she witnessed an argument between her sister Aisha and defendant. The argument was about Aisha and Niesha using the rent money for drugs. When Niesha saw defendant “raise his hand” to Aisha, she grabbed a gun, turned it on defendant and told him, “I’ll kill you if you put your hands on her.” Niesha said she tried to shoot defendant but the gun would not fire. Aisha grabbed the gun from Niesha and told her to leave. After she left, Niesha called the police and reported that defendant threatened to kill her and Aisha. She also slashed the tires on defendant’s car.
Emma Bowens testified that she was in her bedroom getting dressed when Niesha rushed in and said defendant had stabbed Aisha. After she finished dressing and came out of the bedroom, Emma saw defendant standing in the living room. Defendant attacked her and stabbed her in the back. Emma broke loose and ran outside. Defendant continued his attack as he chased her around the cars in the parking lot. In the attack, Emma suffered knife wounds to her neck, back and right arm. Emma managed to escape defendant and run back into her apartment, where she collapsed in the bathroom.
At the time of trial, the murder victim’s son D.H. was 16 years old. D.H. stated that about 9:00 p.m. on the evening in question he was a couple of blocks away from his home when his friend Greg ran up and told him defendant had stabbed his mother outside the apartment. D.H. ran back to the apartment, where defendant confronted him and stabbed him in the face.
In addition to eye-witness testimony, the prosecution also presented the following forensic evidence: Paul Yager testified that he is employed by the Oakland Police Department as an evidence technician. Yager testified that he processed the crime scene after the incident in question. Yager showed the jury a series of photos that he took depicting a blood trail which extended from Aisha’s body at the bottom of the stairs back up to apartment 11. Yager also testified that he recovered a knife with its blade intact inside a laundry basket in the middle of the courtyard area. Also, a knife handle was found on the ground underneath the stairs. A broken knife blade with blood on it was recovered on the hood of a car in the parking lot.
Dr. Thomas Rogers, forensic pathologist, testified that he conducted an autopsy on Aisha Hendricks on July 9, 2007. Dr. Rogers stated that there were two slash and nine stab wounds on the body cause by “sharp cutting-type instruments.” Dr. Rogers testified that the victim had suffered a significant loss of blood, enough to cause her to go into shock and result in death. Dr. Rogers stated that many people with stab wounds of the nature found on the victim’s body will die within three to five minutes.
The defense case consisted of defendant’s testimony delivered in narrative form. Defendant told the jury he was “prone to violence” and was “forged in concrete and steel” in San Quentin, where “the law of the penitentiary is the strong survive,” and where he “made attempted kills” and reacted to aggression with violence. Defendant described a relationship with Aisha in which she handled “the house responsibilities” and he brought “money home.” Also, defendant stated he knew he had to “walk a fine line” because he had “Two Strikes,” and had to learn to “spot violence” before it erupts “so I can avoid it.” In this regard, defendant stated that he and Aisha “came to our perimeters” in the relationship where it was understood Aisha would not challenge him physically but would “check me with her tongue.”
Defendant stated the confrontation with Aisha “started off earlier that day” when he was talking to her about her drug relapse, and Niesha “jumped in” by pulling a gun on him. Defendant stated he knew how to “deal with gun times” but did not want to hurt Niesha because she was only 17. After Aisha took the weapon from Niesha, defendant expected Aisha to “check her sister” because Aisha knew that his situation as a two-striker prevented him from engaging in violence. Defendant stated that what “ticked [him] off” was that Niesha also knew his history, which made him “vulnerable to the accusations of this teen-age girl,” who summoned the police on him by telling them he made threats against her and Aisha. Defendant asserted when the police came he needed Aisha to protect him and tell them about the gun, but she did not do so.
Defendant stated that later that night he started to talk to Aisha about her sister. Defendant stated their discussion “jumped off into an argument” during which Aisha attacked him “just with her hands” and they wrestled in the kitchen. According to defendant, he realized that after he “put his hands on” Aisha, he had “cross[ed] the line,” that Aisha was in a “conspiracy with the sister” to bring “the full force of the law” down on him. Defendant stated, “I would have to come in here and explain why I put my hands on her. So I grabbed a knife, and I stabbed her, and that’s when it started.”
On cross-examination, defendant stated he stabbed Aisha eleven times. Defendant stated he stabbed Aisha in the back because “I was standing behind her.” Defendant also stated that he got a second knife to stab her with after the first one broke. Defendant said he attacked Emma Bowens because “a gun came downstairs to D.H.” and because he “figured they were conspiring to send me to the penitentiary.” Defendant stated that if he “had used full stress” against Emma she would have been dead, but he deliberately did “not hit [her] with a killing blow.” Defendant stated he attacked D.H. to teach him a lesson not to try to be a thug or a gangster. Defendant stated he wanted to send a message “not to engage in pulling guns on people.”
Discussion
A. Sufficiency of the Evidence
Defendant contends that the judgment of conviction for first degree murder violates his federal and constitutional rights to due process and must be reversed because the evidence was insufficient to sustain the conviction. Defendant asserts that, whereas it is undisputed that he stabbed and killed the victim, there is insufficient evidence to show that he acted with the premeditation and deliberation required for first-degree murder.
In reviewing the sufficiency of the evidence for first degree murder, we consider the evidence and all reasonable inferences in the light most favorable to the judgment to determine whether evidence which is reasonable, credible, and of solid value supports a finding that the defendant premeditated and deliberated beyond a reasonable doubt. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) Inferences must be based on evidence and may not be supported by speculation, surmise or suspicion alone. (People v. Raley (1992) 2 Cal.4th 870, 891.) “ ‘[W]e need not be convinced beyond a reasonable doubt that defendant premeditated the murder[ ]. The relevant inquiry on appeal is whether “ ‘any rational trier of fact’ ” could have been so persuaded.’ [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522, 546.)
Premeditation requires more than the reflection that is necessary to form specific intent to kill. (People v. Anderson (1968) 70 Cal.2d 15, 26 (Anderson).) “[T]he intent to kill must be formed upon a preexisting reflection and have been the subject of actual deliberation or forethought.” (People v. Whisenhunt (2008) 44 Cal.4th 174, 201.) The process of premeditation and deliberation can occur in a brief interval and does not require any extended period of time: “ ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’ (Citations.)” (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
Three types of evidence may support a finding of premeditation and deliberation: (1) evidence of planning; (2) evidence of motive; and, (3) the nature or method of the killing. (Anderson, supra, 70 Cal.2d at pp. 26-27.) The Anderson factors, however, need not “be present in some special combination or . . . be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court’s assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]’ (Citation.)” (People v. Steele (2002) 27 Cal.4th 1230, 1249.)
In this case, a finding of premeditation and deliberation is amply supported by evidence of motive and the nature and method of the killing. As to motive, defendant was aggrieved by the fact that Niesha not only pointed a gun at him and threatened to shoot him, but immediately thereafter called the police and accused him of threatening to kill her and Aisha. Defendant resented the fact that because of his two prior strikes he was vulnerable to Niesha, a teenage girl. Defendant expected his wife Aisha to protect him from Niesha and to keep her sister in check, and he resented the fact that Aisha did not tell the police about the gun when they responded to Niesha’s call. When hours after the gun incident defendant again confronted Aisha about her sister’s actions, Aisha started to grapple with him, in violation of their understanding that she would never challenge him physically. At this juncture, defendant decided that his wife and family were conspiring against him to trigger a third strike against him that would put him in prison for life. Defendant decided to send a message that it was unacceptable to pull a gun on him. All this furnishes strong evidence of motive and supports an inference by a rational trier of fact that defendant’s orgy of violence was a deliberate act of retribution upon his wife and her family rather than an “unconsidered or rash impulse.” (People v. Steele, supra, 27 Cal.4th at p. 1249.)
As to the nature of the killing, defendant stabbed Aisha for the first time while they were still in the apartment and left her to stagger outside to the top of the stairwell. In the meantime, defendant went downstairs to Emma Bowens’s apartment and launched a knife attack on her. After chasing Emma around the car park and breaking the first knife he used to stab his victims, defendant went back upstairs into his apartment, got another knife, came back outside, and renewed his attack on Aisha. This evidence that defendant used two different weapons and attacked Aisha at two different locations reflects prolonged, deliberative conduct rather than an impulsive act committed without thought. Also, there was evidence that defendant stabbed Aisha a total of eleven times in the course of the two attacks, prevented anyone from coming to her aid, and said “I told you I would get you” as he stood over her body. This too permits the inference that his actions were calculated to result in Aisha’s death. Moreover, defendant by his own admission was a skilled practitioner of violence who was “forged in the concrete and steel” of San Quinten and knew how to strike “killing blows” or apply “full stress” when he wished to do so. This further supports an inference that Aisha died as a result of defendant’s “cold, calculated judgment” and not as a result of an impulsive attack. (People v. Mayfield, supra, 14 Cal.4th at p. 767.) In sum, the manner of killing here “ ‘supports the inference of a calculated design to ensure death, rather than an unconsidered ‘explosion’ of violence.’ (Citation.)” (People v. Steele, supra, 27 Cal.4th at p. 1250.) Thus, under all the circumstances, we conclude the record contains ample evidence of premeditation and deliberation.
B. Jury Question
During the course of its deliberations, the jury sent a question to the court stating: “Clarification on premeditation in regards to this scenario: Can premeditation still exist if decided upon half way through the 9 p.m. occurrence, or, if the attack is broken down by two different parts (1) quarrel in the apartment and (2) actions that occurred beginning when Aisha was at the top of the stairs.” After consulting with the parties, and without objection from defendant, the trial court responded to the jury’s question as follows: “The first part of the request is a legal question that is contained in the jury instructions related to first degree murder. The second part of the request is a factual question for the jury to decide.”
Despite his concurrence in the court’s response at trial, defendant now contends that the court’s response was insufficient and that he was prejudiced thereby. We conclude that defendant failed to preserve the issue for appeal and that, even if he had, it is without merit.
Section 1138 states: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” However, any objection under section 1138 is waived if defendant approves or does not object to the trial court’s response to a jury question. (People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here, defendant agreed with the court’s response to the jury question. Accordingly, defendant failed to preserve the issue for appeal.
Moreover, even if the issue had been preserved for appeal, it is without merit. Regarding a trial court’s duties when responding to a jury question, the California Supreme Court stated: “The court has a primary duty to help the jury understand the legal principles it is asked to apply. (Citation.) This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. (Citation.) Indeed, comments diverging from the standard are often risky. (Citation.)... But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee).)
In this case, the trial court carefully considered how to best aid the jury in responding to its question. The court broke the jury’s question down into two parts, the first of which it identified as a legal question — whether premeditation had to be present at the outset of the argument between defendant and Aisha on the evening in question or whether it could arise “half way through the 9 p.m. occurrence.” The court advised the jury to consult the jury instructions related to first degree murder in order to resolve the legal question. Those instructions stated that murder is of the first degree when “the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation. . . . [¶] The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill.” These instructions answered the jury’s legal question by informing the jury that premeditation can arise at any time “preceding the killing” and therefore could have arisen after the quarrel commenced and defendant first stabbed Aisha in the apartment. Additionally, the court advised the jury that the second part of the request, concerning how the attack unfolded, was a factual question that it had to resolve.
The trial court’s response fully comports with Beardslee, supra. Contrary to defendant’s assertion, the trial court did not just “ ‘figuratively throw up its hands and tell the jury it cannot help.’ (Beardslee, supra, 53 Cal.3d at p.97.)” Rather, as described above, the trial court carefully considered the jury’s question and advised the jury how to resolve it. That the trial court’s response directed the jury back to the instructions related to first degree murder does not mean the response was insufficient or inadequate. On the contrary, under Beardslee a trial court may refer the jury back to the instructions if the original instructions “are themselves full and complete.” (See Beardslee, supra, 53 Cal.3d at p. 97 [where “original instructions are themselves full and complete,” the trial court in responding to a jury question may decide that no further explanation is necessary and simply “reiterate the instructions already given”].) Defendant makes no attempt to show that the court’s instructions on first degree murder were less than a full and complete statement of the law. Further, while defendant asserts the jury was confused about the “meaning” of premeditation, he does not elaborate on the nature of the alleged confusion, or suggest what the court should have done to dispel it. In any case, the jury’s question did not reflect a general “confusion” about the nature of premeditation: Rather, it reflected a specific concern about the timing of when premeditation may be formed, and the trial court’s response adequately addressed that concern by referring the jury back to the instructions for first degree murder. In sum, the trial court acted well within its discretion in responding to the jury’s question. There is no error on this point.
There being no error, we need not discuss defendant’s claim of prejudice.
C. Enhancements for Use of a Deadly Weapon
Defendant notes that in counts two and three he was convicted of assault with a deadly weapon pursuant to section 245, subdivision (a) and that he received a consecutive one-year sentence on each of these counts for use of a deadly weapon, pursuant to section 12022, subdivision (b). Citing People v. Summersville (1995) 34 Cal.App.4th 1062 (Summersville) and People v McGee (1993) 15 Cal.App.4th 107 (McGee), defendant contends that the consecutive one-year enhancements on counts two and three must be stricken because “personal weapon use is an element of section 245.”
Respondent acknowledges that Summersville and McGee control and concedes the issue. We agree that “section 12022, subdivision (b) precludes the enhancement where . . . [the] use of a deadly weapon is an element of the offense of which the accused is convicted.” (McGee, supra, 15 Cal.App.4th at p. 110; §12022, subd. (b) [enhancement does not apply to an offense if the “use of a deadly or dangerous weapon is an element of that offense”].) Accordingly, the enhancements imposed pursuant to section 12022, subdivision (b) must be stricken.
Disposition
The section 12022, subdivision (b) enhancements are stricken. The judgment is affirmed in all other respects. The case is remanded solely for the trial court to amend the abstract of judgment to remove the sentencing enhancements imposed pursuant to section 12022.
We concur: McGuiness, P. J., Pollak, J.