Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF107008A.
MAURO, J.
Defendant Richard Henry Kase appeals following a conviction for first degree murder of his prison cellmate. (Pen. Code, § 187; undesignated statutory references are to the Penal Code.) Defendant contends (1) his trial counsel was ineffective in failing to request a jury instruction regarding mental disorder, (2) court minutes of his prior convictions failed to show he waived his constitutional rights when entering pleas, (3) the trial court used the wrong standard of proof for the prior convictions, and (4) the trial court failed to make adequate findings regarding the enhancements for prior convictions and prior prison terms. We conclude (1) trial counsel was not ineffective in failing to request an instruction unsupported by substantial evidence, (2) defendant fails to show a constitutional violation regarding his pleas to the prior convictions, (3) the trial court did not use the wrong standard of proof, and (4) the trial court made adequate findings for the prior conviction enhancements but not for the prior prison term enhancements. We shall modify the judgment to strike the prior prison term enhancements, and otherwise affirm the judgment.
BACKGROUND
A third amended information, filed in April 2009, charged defendant with the December 2007 murder of Randy James Rabelos and alleged defendant had three prior convictions for “three strikes” sentencing (§§ 667, subd. (d), 1170.12, subd. (b)), three prior serious felony convictions qualifying for five-year enhancements (§ 667, subd. (a)), and three prior prison terms qualifying for one-year enhancements (§ 667.5, subd. (b)). The alleged prior convictions were (1) a September 1994 first degree burglary (§§ 459-460), (2) an October 18, 2002, arson (§ 451), and (3) an October 18, 2002, assault with a firearm (§ 245, subd. (a)(2)). The offenses underlying the prior prison term allegations were (1) the 1994 burglary, (2) the 2002 arson, and (3) a February 1999 conviction for possession of a controlled substance for sale (Health & Saf. Code, § 11378).
Before trial, defense counsel expressed doubt about defendant’s mental competency to stand trial (§ 1368). The trial court suspended the proceedings and, after considering expert evaluations, subsequently found defendant competent to stand trial.
Evidence adduced at trial included the following:
Around 7:20 a.m. on December 1, 2007, a prison nurse and a correctional officer delivered medications to the prison cell shared by defendant and the victim, Randy Rabelos. The nurse gave defendant his medication and asked about Rabelos, who was on the bottom bunk covered by a blanket. Defendant said he had an emergency; his “cellie [was] dead.” A rag was shoved into the victim’s mouth, and rigor mortis had set in. Defendant, removed from the cell, volunteered he did it but was not worried, because he was “a psych patient.” Defendant said: “I did it.... I killed him. It’s going to come out anyway.” Defendant said, “I should have waited until after breakfast. I sure am hungry. Do you have a burger?” He said, “I didn’t feel bad being in the cell with a body all night. It did bother me when they took me out.” He said, “I’m tired. I just want to sleep. Call him [the investigator] in. I’ll tell them I did it. Take me to court right now, and I’ll tell them I did it.”
Around 5:00 p.m., in a taped interview with investigators (which was played for the jury), defendant said he was taking Neurontin for nerve damage and Depakote, a mood stabilizer, because he is “messed up” and “bipolar.” It keeps him “level.” He last took his medicine a couple of minutes before the interview. He was tired but “still within all [his] faculties.” Defendant said he killed Rabelos sometime after 1:00 a.m. Defendant had difficulty controlling his temper and was mad about being wrongly incarcerated for possession of a sword. Defendant had not slept, thinking about his problems. Rabelos began talking about sexually molesting young girls. The talk bothered defendant, who had been molested as a child and whose sister had also been molested. Rabelos called defendant a punk who needed backup to feel tough. Defendant would not tolerate being insulted. Defendant approached Rabelos aggressively, hoping Rabelos would take a swing at him. Rabelos did swing, and defendant decided to kill him. Defendant grabbed Rabelos’s arm, “hyper extended” it back and pushed him against the wall. Defendant felt his anger “burst” and hit the victim hard in the throat. Defendant heard a pop and saw blood coming from the mouth of the victim, who struggled to breathe and grasped at defendant’s hands. Defendant, believing the blow was fatal, “tried... [to] finish it as quick as possible so that he wouldn’t suffer.” Defendant hit him in the throat four or five times and held him down, but the victim still tried to breathe, so defendant stuffed a rag into the victim’s mouth and pinched his nose until he stopped breathing. Defendant washed the blood off his hands and tried to nap in the top bunk. Defendant told the interviewer he knew what he did was wrong but did not feel remorse. He felt Rabelos brought it on himself by calling defendant a punk.
A forensics expert testified the victim died of homicidal asphyxiation, which took about five minutes to accomplish.
Defendant testified at trial. He said he was diagnosed with bipolar disorder in jail before being sent to prison. He took a lot of methamphetamine and LSD over the years and sometimes hallucinated. He had not slept or taken drugs for a couple of days before the killing, because he was angry about being wrongfully convicted for possessing a cane sword. The appellate court reversed his weapon conviction several months after the Rabelos killing. On the night of the killing, Rabelos would not shut up about molesting girls. When Rabelos began demonstrating what he would do, defendant -- who was molested as a child and whose sister was molested -- “lost it right there.” Defendant could not stop himself. He did not intend to kill until after his first punch, which he believed would be fatal and therefore tried to hasten death so the victim would not suffer. Defendant said at trial that everything in his taped interview was “the honest to God truth.”
On cross-examination, defendant said the talk about child molestation caused his anger to build but that when Rabelos disrespected him by calling him a punk, “that’s what set off the whole fuse, ” and “when he called me a punk like he was better than me, sure I snapped.”
Defendant testified he punched the victim in the throat to shut him up but knew it could kill the victim. Defendant is an inch taller and 40 pounds heavier than the 130-pound victim. Defendant immediately knew the blow was fatal, “snapped” and could not stop himself. He did not want the victim to suffer and so hastened his death. Defendant testified, “I started hallucinating, man. I started thinking he was still talking and stuff, that’s why I overkilled, you know what I mean. I’m going to tell you right now I could not stop myself. All right. He just would not shut up, that’s why.” Defendant admitted he had had “enough frame of mind” to watch for patrolling guards while he was pinching the victim’s nose to suffocate him.
Dr. Gary Cavanaugh, who conducted the section 1368 competency evaluation of defendant on December 7, 2008 (a full year after the killing) testified as a defense witness. His “ballpark” diagnosis in December 2008 was that defendant had an unspecified psychotic disorder (either bipolar or methamphetamine-induced), meaning “in some fashion loss of contact with reality or presence of certain symptoms like hallucinations and delusions.” This diagnosis was “a general comment that the person shows some type of signs or symptoms that are consistent with a psychosis. We just don’t know for sure what kind it is. It can be things, and often is things, like sensory misperceptions, hallucination” or thought disorders (disorganized thinking), or disturbances of affect (either very flat or very agitated). The doctor also diagnosed defendant with poly-substance abuse (based on defendant’s reports of past drug use), attention deficit hyperactive disorder, and perhaps a personality disorder with antisocial or narcissistic features.
On cross-examination, the doctor testified the purpose of his examination was to determine competency to stand trial. Defendant did not display any signs of psychotic disorder during the interview; he was aware of the nature of the proceedings, understood the roles of the various parties, and was able to assist in his defense. The only information the doctor got about the killing came from defendant himself.
Defense counsel argued to the jury that defendant was provoked and acted out of heat of passion and that defendant was bipolar and thought the victim was still talking after he was dead.
In May 2009, the jury found defendant guilty of first degree murder. At a bench trial, the court found true the allegations of prior convictions, found not true one of the prior prison terms, and made no findings regarding the other prior prison term allegations (as we discuss, post).
On June 29, 2009, the trial court sentenced defendant to 90 years to life in state prison (25 years to life for the murder, tripled to 75 years to life due to the strike priors, plus five years for each of the three prior serious felony convictions).
DISCUSSION
I. Effective Assistance of Counsel
Defendant contends his trial counsel rendered ineffective assistance by failing to request a jury instruction on mental disorder -- CALCRIM No. 3428 -- which would have told the jurors they could consider evidence that defendant may have suffered from a mental disease, defect, or disorder “for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime.” (CALCRIM No. 3428.) Defendant fails to establish ineffective assistance of counsel, particularly because there was no substantial evidence that a mental disorder negated the mental state for murder at the time of the killing.
In its standard form, CALCRIM No. 3428 states: “You have heard evidence that the defendant may have suffered from a mental (disease[, ]/ [or] defect[, ]/ [or] disorder). You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state....” (Original brackets.)
In order to prevail, defendant must show (1) counsel’s performance was deficient, in that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced defendant, i.e., there was a reasonable probability the result would have been better for defendant absent the defect. (Strickland v. Washington (1984) 466 U.S. 668, 687-692 [80 L.Ed.2d 674, 693-697]; In re Harris (1993) 5 Cal.4th 813, 832-833; People v. Pope (1979) 23 Cal.3d 412, 423-425.)
The jury received instruction on the mental state required for first degree murder: That defendant acted “willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death.”
Section 28, subdivision (a), states, “Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”
A trial court does not have a sua sponte duty to instruct the jury with the substance of CALCRIM No. 3428 (formerly CALJIC No. 3.32). (People v. Saille (1991) 54 Cal.3d 1103, 1119.) A trial court must give the instruction only when requested and when substantial evidence supports it. (People v. Panah (2005) 35 Cal.4th 395, 484 (Panah).)
Mental defect is a medical diagnosis requiring expert evidence. (People v. Kelly (1992) 1 Cal.4th 495, 540; People v. Moore (2002) 96 Cal.App.4th 1105, 1116-1117.) Thus, defendant’s statement that he was prescribed medication for “bipolar” is insufficient. Whether the mental defect actually negated the mental state required for the charged crime is to be decided by the trier of fact and is not a proper subject for expert testimony. (§ 29.)
Panah, supra, 35 Cal.4th 395, held the testimony of an emergency physician -- that the defendant was psychotic and under the influence of controlled substances the day after the crime -- was insufficient to require the instruction where, at best, the evidence showed “that defendant may have suffered from long-standing latent psychosis and, at some point, his condition deteriorated. This does not constitute evidence of defendant’s mental state at the time of the commission of the crime.” (Id. at p. 485.) Witnesses who saw the defendant in the interim between the crime and the emergency room visit testified he interacted with them with no appearance of being under the influence of any substance. (Id. at pp. 484-485.)
Here, Dr. Cavanaugh evaluated defendant on December 7, 2008, a full year after the crime. The sole purpose of his involvement was to evaluate defendant’s current capacity to stand trial, i.e., to understand the nature of the proceedings and assist in his defense. He did not observe signs of a psychotic disorder when he interviewed defendant. Although Dr. Cavanaugh opined defendant has a psychotic disorder, here, as in Panah, the expert evidence “[a]t best” established defendant may have suffered from a long-standing mental disorder, which “does not constitute evidence of defendant’s mental state at the time of the commission of the crime.” (Panah, supra, 35 Cal.4th at p. 485.)
Defendant argues there was evidence of his mental state at the time of the crime, because he testified at trial that he “started hallucinating [during the killing]. I started thinking he [the victim] was still talking and stuff, that’s why I overkilled.... I could not stop myself. All right. He just would not shut up, that’s why.” Dr. Cavanaugh testified defendant made a similar claim a year after the killing that he stuffed the rag into his deceased cellmate’s mouth because “he wouldn’t stop talking.”
However, this evidence does not constitute substantial evidence supporting the jury instruction, in part because defendant’s self-described statements are insufficient to prove a mental defect at the time of the crime. (People v. Kelly, supra, 1 Cal.4th at p. 540; People v. Moore, supra, 96 Cal.App.4th at pp. 1116-1117.) Moreover, there is substantial evidence that a mental defect, even if it existed at the time of the crime, did not in fact negate the mental state required for the charged crime. The evidence establishes that (1) defendant hoped Rabelos would take a swing at him, (2) defendant decided to kill Rabelos when Rabelos did in fact take a swing at him, (3) defendant chose to kill Rabelos to end his suffering, (4) the asphyxiation, which included holding the victim down, pinching his nose shut and stuffing a rag in his mouth, took many minutes, (5) defendant had the presence of mind to watch for guards as he finished killing the victim, and (6) defendant cleaned up after the murder. In addition, on the day of the killing, defendant made statements to various prison personnel and investigators demonstrating his lucidity and awareness and deliberation of his actions over the several minutes it took to kill the victim. Defendant’s taped interview took place around 5:00 p.m., about 15 hours after the killing, but was consistent with his comments to prison personnel six hours after the killing and moments after he was removed from the cell.
Even if -- for the sake of argument -- defendant’s self-described hallucination warranted the jury instruction, and even if -- again for the sake of argument -- there was no tactical reason for counsel not to request the instruction, the totality of the evidence nonetheless establishes that there is no reasonable probability defendant would have obtained a more favorable result had the instruction been given. (Strickland v. Washington, supra, 466 U.S. at pp. 687, 693 [80 L.Ed.2d at pp. 693, 697]; In re Harris, supra, 5 Cal.4th at p. 833.)
Defendant argues the jury could have inferred that his mental disorder prevented his actual formation of the mental state for murder, based on the following evidence: defendant’s and his sister’s testimony that they were sexually molested as children; his description of his anger at hearing the victim talk about molesting children; his trouble sleeping for days before the killing; the prison nurse’s testimony that defendant stared blankly when disclosing the death of his cellmate; defendant’s ability to spend the night with a dead body; and defendant’s inappropriate fixation on food and regret that the death was discovered before breakfast. In light of defendant’s other admissions and the totality of the evidence, we disagree with defendant’s contention.
We conclude defendant fails to show ineffective assistance of counsel.
II. Waiver of Rights Regarding Prior Convictions
Defendant argues the trial court erred by finding he validly waived his constitutional rights when he entered pleas in Santa Clara County to two of the alleged prior convictions -- the 2002 arson and assault. We disagree.
A trial court cannot accept a guilty plea without the defendant’s knowing and voluntary waiver of constitutional rights to a jury trial, to confront accusers, and the privilege not to incriminate himself. (Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122.)
In order for a defendant to make a successful collateral attack on a prior conviction, he cannot merely allege the record of the prior conviction is silent regarding his rights; he “must affirmatively allege that at the time of his prior conviction he did not know of, or did not intelligently waive, such rights.... [O]nce such an allegation is made, the court must hold an evidentiary hearing... to determine the truth of the allegation.” (People v. Sumstine (1984) 36 Cal.3d 909, 914; see also People v. Allen (1999) 21 Cal.4th 424, 442-443.)
Here, defendant moved in limine to strike all three prior convictions, arguing Santa Clara County was “notorious” for mishandling such waivers and had destroyed some of the records. The trial court deferred ruling until the bifurcated bench trial of the prior conviction allegations. At the bench trial, defendant submitted his declaration attesting, “I believe I was not advised of my constitutional rights before these convictions, and I do not believe that I waived them freely and knowingly, if I waived them at all.” (Italics added.) He attested he used LSD and methamphetamine for years before the prior convictions, was not yet under treatment for mental disorders, and “If I were properly advised of my rights and if I had understood them, I would not have changed my plea to guilty.”
The prosecutor argued defendant’s showing was insufficient to justify a hearing (People v. Sumstine, supra, 36 Cal.3d at p. 914), but the prosecutor nevertheless submitted defendant’s section 969b packet, including a reporter’s transcript of the 1994 burglary plea (not at issue in this appeal). No reporter’s transcripts were sent to the prosecutor for the 2002 convictions, but the prosecutor submitted court minutes from the 2002 arson and assault, with boxes checked next to the words “Waives Constit Rights.”
Section 969b says, “For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime... has been convicted of [a prior crime], ... the records or copies of records of any state penitentiary... in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence.”
Defense counsel said, “Well, I don’t see that right off. But even if it says so, that wouldn’t add very much to it because that’s a finding the Judge has to make, not the clerk....” The trial court observed the clerk checks boxes pursuant to the judge’s orders.
The trial court said, “based on the records at this point, we’ll find that the three convictions are adequate, that he was advised of his rights, that he waived those on the record. Again, I’d certainly feel better if there was a transcript as to the 2002 convictions, but the minute order indicates he waived constitutional rights....”
We agree with the People that defendant failed to make a sufficient showing to warrant a hearing in the first place, because he merely attested he “believed” he was not advised of his constitutional rights and “believed” he did not waive them. This was not an affirmative allegation of a constitutional violation, as required by People v. Sumstine, supra, 36 Cal.3d at p. 914.
Defendant argues no one could be expected to remember with certainty something that happened so long ago. But that is why an affirmative allegation is required. A defendant is not allowed to reopen long-settled matters by saying he does not remember the alleged error but maybe it happened.
In any event, the record suffices to reject defendant’s contention on its merits. Defendant argues there is no checkmark next to the boxes labeled “Waives Constit Rights” on the court minutes. We disagree. We have reviewed the court minutes of the prior convictions and conclude they clearly show check marks for the words “Waives Constit Rights, ” though the checkmarks partially overlap the checkmarks for the adjacent lines. These minute orders provided substantial evidence supporting the trial court’s findings. (People v. Pride (1992) 3 Cal.4th 195, 255-256 [attorneys’ testimony that defendants waived rights provided sufficient evidence].)
Substantial evidence supports the trial court’s finding that defendant waived his constitutional rights in entering pleas to the two 2002 convictions.
III. Standard of Proof
Defendant contends the trial court failed to find the prior convictions true “beyond a reasonable doubt, ” because the court said, “based on the records at this point, we’ll find that the three convictions are adequate, that he was advised of his rights, that he waived those on the record. Again, I’d certainly feel better if there was a transcript as to the 2002 convictions, but the minute order indicates he waived constitutional rights....” (Italics added.) Defendant argues that, because the court stated additional evidence would have made it “feel better” about proof it could only describe as “adequate, ” the court implied it harbored a genuine reason to doubt the sufficiency of the evidence. We disagree.
We presume the trial court was aware of, and applied, the proper standard of proof beyond a reasonable doubt. (Evid. Code, § 664 [“It is presumed that official duty has been regularly performed”]; People v. Allen, supra, 21 Cal.4th at p. 436 [to rely on prior conviction for sentencing purposes, prosecution must prove prior conviction beyond a reasonable doubt].) Under this presumption, the judge’s comment that the proof was “adequate” meant that it was adequate to satisfy the appropriate standard of proof. That the judge also said he would “feel better” with a reporter’s transcript is inconsequential, particularly because the trial court then immediately asked defense counsel if he had located any case law supporting his theory that court minutes prepared by the clerk did not satisfy the need for a judge’s finding of waiver. Trial counsel offered no case law, and appellate counsel does not renew this theory on appeal.
We conclude the trial court found the requisite waivers beyond a reasonable doubt.
IV. Separate Findings
Defendant contends two of the findings regarding his prior strike and serious felony convictions, and all of the findings regarding his prior prison terms, must be reversed because the trial court failed to make separate findings as to each conviction and prison term, as required by section 1158. Defendant also complains the trial court never made a “true” finding with respect to the two prison term enhancements shown on the abstract of judgment. We see no basis for reversal, but we shall modify the judgment to strike, rather than stay, the two prison term enhancements.
Section 1158 provides: “Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The verdict or finding upon the charge of previous conviction may be: ‘We (or I) find the charge of previous conviction true, ’ or, ‘We (or I) find the charge of previous conviction not true, ’ according as the jury or the judge find that the defendant has or has not suffered such conviction. If more than one previous conviction is charged a separate finding must be made as to each.”
A. Background
The third amended information alleged defendant had three prior convictions qualifying as strikes (§ 667, subd. (d)) and serious felonies (§ 667, subd. (a)): a 1994 burglary, a 2002 arson, and a 2002 assault with a firearm. The pleading alleged prior prison terms (§ 667.5, subd. (b)) for the 1994 burglary, the 2002 arson, and a 1999 narcotics conviction (possession of a controlled substance for sale).
At the bench trial on May 18, 2009, the trial court found adequate evidence of the three prior convictions but said nothing about the prior prison terms.
A sentencing brief submitted by the prosecution in June 2009 expressed the view that the court could not “impose” the one-year prison term enhancements (§ 667.5, subd. (b)) related to the two 2002 convictions (arson and assault), because those two convictions were already subjecting defendant to five-year enhancements as serious felony convictions (§ 667, subd. (a)). The People’s brief cited People v. Jones (1993) 5 Cal.4th 1142, which said a prior prison term enhancement (§ 667.5, subd. (b)) should be stricken where it was based on the same prior conviction for which the defendant received a section 667, subdivision (a), enhancement.
The reporter’s transcript of the sentencing hearing (June 29, 2009) shows the prosecutor said, “I think there was some dispute over whether the People proved the 667.5(b) violations, ” to which the court stated, “My understanding was that there was a discrepancy on the days, that I didn’t find as to the -- the one additional enhancement. So at this point, to clarify the record, we will note that.” It appears the trial court was saying it found “not true” the prior prison term related to the 1999 narcotics offense.
The transcript also shows:
“[Prosecutor]: -- I think enhancements 7 and 8 [prior prison terms for the burglary and arson] are incorrect [on the probation report].
“[Defense counsel]: Well, I think the Court’s going to sentence according to what the Court found true, not what the probation report [says].
“THE COURT: Yeah, there are three strikes and three 5-year serious priors.”
The reporter’s transcript of the sentencing hearing shows the trial court said nothing more about prior prison term enhancements. The court tripled the sentence under the three strikes law (§ 667, subds. (b)-(i)), to a minimum of 75 years to life, then said: “It is further an enhancement as to Count 1 with three serious felonies pursuant to 667(a) of the Penal Code, and the Court would impose an additional 5 years as to each of those, for a total of 15 additional years to be served consecutive to the base term of Count 1. [¶] Accordingly, the aggregate term of imprisonment for the counts and enhancements would be a minimum period of 90 years to life.”
Court minutes for the date of sentencing show that one of the prior prison term allegations “IS FOUND NOT TRUE” and, as to each of the other two prior prison term allegations, “THE COURT IMPOSES 1 YEAR(S). THAT SENTENCE IS ORDERED STRICKEN FOR THE PURPOSE OF SENTENCING.” Clerk minutes also state that one prison term enhancement was “found to be not true” and, for the other two prison term enhancements, “the Court imposes 1 year[] as to each. That sentence is ordered stricken for the purpose of sentencing.”
The abstract of judgment says the trial court tripled defendant’s sentence under the three strikes law (§ 667, subds. (b)-(i)), added five-year enhancements for each of the three prior serious felony convictions (§ 667, subd. (a)), and “stayed” (rather than struck) the two prior prison term enhancements (§ 667.5, subd. (b)).
B. Analysis
1. Prior Convictions
As to the prior convictions, defendant argues the trial court failed to make a “separate finding” as to each prior “strike” and each prior serious felony conviction, as required by section 1158 (fn. 3, ante). Defendant argues the trial court’s finding that “the three convictions are adequate” does not satisfy the statute, even though only three prior convictions were alleged. Defendant cites authority that when the trier of fact fails to make a finding, the effect is the same as a finding of “not true.” (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440.)
However, the trial court did not fail to make findings; the trial court found the “three convictions are adequate.” Section 1158 does not require the trial court to use the words “find” or “true.” (People v. Gutierrez, supra, 14 Cal.App.4th at pp. 1439-1440.) Moreover, the trial court’s imposition of the three enhancements at the sentencing hearing reflects the trial court’s findings. (People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17 [trial court rendered implied finding when it imposed enhancement expressly for underlying prior conviction].) To the extent defendant wanted the trial court to state each finding separately, he should have asked the court to do so. (People v. Scott (1994) 9 Cal.4th 331, 353 [forfeiture doctrine applies to claim that trial court failed to articulate properly its discretionary sentencing choices].)
2. Prior Prison Terms
As to the prior prison terms, defendant argues the trial court did not find the allegations true, and therefore it is error to show two “stayed” prior prison term enhancements in the abstract of judgment. We agree.
Imposition of a sentence enhancement under section 667.5, subdivision (b), requires proof that the defendant (1) was previously convicted of a felony, (2) was imprisoned as a result of that conviction, (3) completed that term of imprisonment, and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (People v. Tenner (1993) 6 Cal.4th 559, 563.)
The record contains no findings by the trial court that the prior prison term enhancements were true. A defendant may not be sentenced for enhancements in the absence of findings that the enhancements are true. (People v. Gutierrez, supra, 14 Cal.App.4th at pp. 1439-1440.)
While in some cases findings may be implied where the court imposes enhancements (People v. Clair, supra, 2 Cal.4th at p. 691, fn. 17), findings cannot be implied in this case.
There is a conflict between the reporter’s transcript (which contains no finding or sentence for the prior prison terms), the clerk’s transcript (which says nothing about findings but contains minute orders stating sentence was imposed but “stricken”), and the abstract of judgment (which says sentence was “stayed”). The oral pronouncement generally supersedes a conflicting minute order or abstract of judgment prepared by the clerk. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Price (2004) 120 Cal.App.4th 224, 242.)
The record supports the conclusion that the trial court intended to strike the prior prison term enhancements, because that is what the People asked the trial court to do in their sentencing brief, citing People v. Jones, supra, 5 Cal.4th at p. 1153, which directed a trial court to strike a prior prison term enhancement based on the same prior conviction underlying a prior conviction enhancement. A prior prison term enhancement under section 667.5 may be stricken by the trial court in furtherance of justice. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561.) The trial court, however, did not do so in this case.
While it may have been appropriate to impose but stay sentence on the prior prison term enhancements, it would not be appropriate to do so in the absence of findings that the allegations were true. The court in People v. Gutierrez, supra, 14 Cal.App.4th at page 1440, was unwilling to infer a judicial finding of the truth-of-conviction allegations from the judge’s acquiescence in the court clerk’s comment, “You are going to stay the priors....” Here, too, we cannot infer findings on this record.
Accordingly, we shall modify the judgment to strike the two prior prison term enhancements.
DISPOSITION
The judgment is modified to strike the two section 667.5, subdivision (b), enhancements. We direct the trial court to prepare an amended abstract of judgment and send a copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.