Opinion
A145664
12-15-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK WILLIAM NERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1405769)
Appellant Mark William Nero was convicted following a jury trial of assault with a deadly weapon, second degree robbery, and mayhem. On appeal, he contends (1) substantial evidence does not support the mayhem conviction because no evidence was presented at trial proving that the disfigurement to the victim's face was permanent; (2) the court erred when it imposed a great bodily injury enhancement under Penal Code section 12022.7 on the mayhem count; and (3) the court erred and violated section 654 when it imposed separate punishments for the mayhem, assault with a deadly weapon, and robbery convictions.
All further statutory references are to the Penal Code unless otherwise indicated.
Respondent agrees that the court erred when it imposed the great bodily injury enhancement on the mayhem count, but argues that the court also erred when it stayed the punishment on the great bodily injury enhancement attached to the robbery count. Respondent also agrees that the court erred in failing to stay the sentence on both the assault with a deadly weapon count and the attached great bodily injury enhancement pursuant to section 654, but asserts that the court first should have ordered the sentence on the enhancement to run consecutive, rather than concurrent, to the assault. (See § 12022.7, subd. (a).) Respondent, however, believes the court properly punished appellant for both mayhem and robbery. Finally, respondent argues that the court should not have stayed the weapon use enhancement (§ 12022, subd. (b)(1)) attached to the robbery count.
As discussed below, we shall modify appellant's sentence by (1) striking the great bodily injury enhancement attached to the mayhem count; (2) ordering the sentence on the great bodily injury enhancement attached to the assault with a deadly weapon count to run consecutive to the sentence on the assault; and (3) ordering the sentences on both the assault with a deadly weapon and the related great bodily injury enhancement stayed, pursuant to section 654. We shall otherwise affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by second amended information with assault with a deadly weapon (§ 245, subd. (a)(1)—count 1); second degree robbery (§ 211—count 2); and mayhem (§ 203—count 3). The information also alleged as to each count that appellant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)); and had a prior strike conviction (§ 667, subds. (b)-(i)).
On June 3, 2015, a jury found appellant guilty as charged and also found that the knife use and great bodily injury allegations were true. The trial court found that the strike allegation was not true.
On July 1, 2015, the court sentenced appellant to 13 years in prison.
On July 6, 2015, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Tina Penrod testified that in November 2014, she lived next door to appellant in an apartment complex on 3rd Street in Eureka. On the afternoon of November 28, she and her children were outside in the courtyard of the complex. Appellant was also outside; he may have been working on his bike.
About 4:30 p.m., Penrod's friend Melissa O'Callaghan stopped by to say hello. Appellant walked up to O'Callaghan and "asked her if she lived in one of the apartments, and she said no. He also told her that she looked very beautiful, and she said thanks. And he wasn't like letting her pass by." Penrod then saw appellant "pull[] something out of his pocket and very fast like jabbed her face." Penrod saw that O'Callaghan's face was cut and realized that appellant had stabbed her. Penrod then heard appellant ask O'Callaghan what she had in her pockets and if she had money. O'Callaghan said yes, took money out of her pockets, and handed it to appellant. After appellant got out of the way of Penrod's apartment door, Penrod took her children inside the apartment and locked the door. The police arrived very soon thereafter.
Penrod had last seen O'Callaghan a week before trial. The injury to her face had healed, but she now had a two or three inch scar.
Eureka Police Officer Jonathan Eckert assisted in the detention of appellant in an alley off of 3rd Street. Eckert saw another officer remove a folding pocket knife with a broken tip from appellant's right front pocket. It was locked in the open position and there appeared to be blood on it. The officer also retrieved a wallet from appellant's pocket. After an in-field show up in which the victim identified appellant as her attacker, Eckert drove appellant to the jail. During the ride, appellant was smiling and laughing.
Kristen Pekarske, an emergency medical technician, was dispatched to the scene shortly after 4:30 p.m. on November 28, 2014. She provided medical care to O'Callaghan before transporting her to the hospital. O'Callaghan had a laceration in her cheek that had penetrated all the way through the cheek into her mouth in some areas. The laceration was four to five inches long and at least an inch wide.
O'Callaghan testified that on November 28, 2014, around 4:00 p.m., she rode her bike to the home of her friend Tina Penrod. When she arrived, she saw Penrod, her two kids, and appellant in the courtyard. Appellant, who O'Callaghan had never seen before, approached her and said something like, she "was hot." He also tried to open a door for her "to an apartment [she] wasn't going to." O'Callaghan felt that appellant was blocking her way, but she was able to get around him. She then turned toward Penrod. A short time later, appellant approached her again. She did not see the knife coming toward her, but heard a click. She felt pain, but did not know what had happened: "I just held my face." Appellant then told her to empty her pockets, which she did. She handed him money and he told her "to get out of there." O'Callaghan got her bike and left. Someone called 911 and she was taken to the hospital in an ambulance. At the hospital, O'Callaghan received 10 stitches in her face. No subsequent procedures had been done to attempt to repair the scarring.
DISCUSSION
I. Sufficiency of the Evidence to Support the Mayhem Conviction
Appellant contends substantial evidence does not support the mayhem conviction because no evidence was presented at trial proving that the disfigurement to O'Callaghan's face was permanent.
In evaluating appellant's claim, " 'we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . . [Citation.] A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict. [Citation.]' [Citation.]" (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
Section 203 provides: "Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem."
" '[T]he modern rationale of the crime [of mayhem] may be said to be the preservation of the natural completeness and normal appearance of the human face and body, and not, as originally, the preservation of the sovereign's right to the effective military assistance of his subjects.' " (People v. Newble (1981) 120 Cal.App.3d 444, 451 (Newble).) "For example, although 'not every visible scarring wound' may establish mayhem under section 203 [citation], the following disfiguring injuries have given rise to a conviction: cigarette burns to both breasts [citation]; a breast nearly severed by a box cutter [citation]; a three-inch facial laceration from a fingernail file [citation]; forcible tattoos on the breast and abdomen [citation]; and a five-inch facial wound from a knife [citation]." (People v. Santana (2013) 56 Cal.4th 999, 1004.)
"To prove mayhem based on a disfiguring injury, the injury must be permanent." (People v. Hill (1994) 23 Cal.App.4th 1566, 1571.) However, evidence that an injury may be cosmetically alleviated may not "be used in a mayhem trial to prove an injury, permanent by its nature, may be corrected by medical procedures." (Id. at p. 1574.)
In Newble, the appellate court held that a three-inch facial laceration, which was likely to be permanent and which extended from the bottom of the victim's ear to just below her chin, was sufficient to constitute disfigurement for purposes of the crime of mayhem. (Newble, supra, 120 Cal.App.3d at p. 453.) Similarly, in Goodman v. Superior Court (1978) 84 Cal.App.3d 621, 623, 625, the appellate court held that a facial scar, four to five inches long and extending from above the eyebrow to the cheek, could reasonably be found by the trier of fact to constitute mayhem.
In the present case, appellant argues that although "a 2-3 inch scar was visible on [O'Callaghan's] face" at the time of trial, the evidence was insufficient to support the mayhem conviction because "[n]o evidence whatsoever was presented that the injury was permanent." Appellant acknowledges that expert testimony regarding the permanence of O'Callaghan's scarring was not required, but asserts that "some evidence must be present to support a finding of the element of permanence of the injury required for a mayhem conviction."
In People v. Keenan (1991) 227 Cal.App.3d 26, 35-36 (Keenan), a panel of this Division held that the defendant's infliction of cigarette burns to the victim's breasts constituted mayhem: "While the injury suffered by Ms. H. may not have been as disfiguring as some of the more vicious mayhem cases cited by appellant, it quite clearly involved a serious permanent disfigurement within the meaning of" section 203. (Fn. omitted.) Regarding the permanence of the victim's scars, we further explained: "In the absence of any evidence to the contrary, we assume that the scars [the victim] suffered, which remained three and one-half months after the attack, were permanent. [Citations.] The fact it might be medically possible to remove the scars, which is also not shown by the record in this case, would in any event be insufficient to alleviate the offense. [Citations.]" (Keenan, at p. 36, fn. 6.)
Here, there was testimony that six months after the attack, O'Callaghan had a two-to three-inch scar on her cheek. Such a scar plainly was sufficient to demonstrate the disfigurement required to prove mayhem (see Newble, supra, 120 Cal.App.3d at p. 453; Goodman v. Superior Court, supra, 84 Cal.App.3d at pp. 623, 625), and it was reasonable for the jury to also infer that the scar was permanent. (See Keenan, supra, 227 Cal.App.3d at p. 36, fn. 6.) Substantial evidence supports the mayhem conviction. (See People v. Manibusan, supra, 58 Cal.4th at p. 87.)
Before closing arguments began, appellant's counsel stated his belief that it was inappropriate for the prosecutor to tell the jurors that they could use their own "common experience or understanding of scars" to decide whether O'Callaghan's scars were permanent. The court disagreed, finding it "totally appropriate" for both counsel to submit "to the jury that they should use their own common sense and experience—there's a reference to common sense and experience in instruction number 226. So both counsel can make that argument that the jury should use their own common sense and experience," so long as the jurors did not speculate.
Appellant states that the reference to common sense in CALCRIM No. 226, which discusses the jury's determination of a witness's credibility, does not apply in the current circumstances, where no evidence was presented regarding the permanence of the victim's injury. In context, it seems that the court referred to CALCRIM No. 226 not because that instruction was directly applicable to the issue of permanence, but merely to make the point that the jurors could use their common sense and experience in determining the permanence of the scar. Regardless, it would defy common sense to insist that a jury could not reasonably find that a two- to three-inch scar, resulting from a laceration inflicted six months earlier, was permanent without specific testimony to that effect. (See Keenan, supra, 227 Cal.App.3d at p. 36, fn. 6.)
II. Sentencing Issues
At appellant's sentencing hearing, the court sentenced him to the upper term of eight years on the mayhem count. It also imposed a consecutive three-year term for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and a consecutive one-year term for personal use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)). The court further sentenced appellant to a consecutive one-year term on the robbery count and imposed a three-year term for the great bodily injury enhancement and a one-year term for the personal use of a deadly weapon enhancement, but stayed punishment on both enhancements pursuant to section 654. Finally, the court imposed a three-year concurrent term on the assault with a deadly weapon count, and a concurrent three-year term for the related great bodily injury enhancement. Appellant's aggregate term of imprisonment was 13 years.
A. General Legal Principles
Both appellant and respondent challenge certain of the trial court's sentencing choices. Although none of these sentencing issues were brought to the attention of the trial court, they are nonetheless cognizable on appeal since they involve claims of unauthorized sentences or sentences entered in excess of jurisdiction, which may be raised at any time. Because such sentences " 'could not lawfully be imposed under any circumstance in the particular case' [citation], they are reviewable 'regardless of whether an objection or argument was raised in the trial . . . court.' [Citation.]" (People v. Smith (2001) 24 Cal.4th 849, 852; accord, People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13 ["appellate court can correct a legal error resulting in an unauthorized sentence (including misapplication of § 654) at any time"].) In addition, "[w]hen a trial court pronounces a sentence that is unauthorized by law, the People may raise the point on defendant's appeal." (People v. Vizcarra (2015) 236 Cal.App.4th 422, 431; accord, People v. Irvin (1991) 230 Cal.App.3d 180, 190 [even where prosecution has not appealed, appellate courts have ordered correction of unauthorized sentences in various circumstances].)
Many of the contentions raised by both appellant and respondent on appeal implicate section 654, which provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).)
Our Supreme Court has explained the way in which section 654 applies to enhancements: "[C]ourts should look first to the statutory language concerning the enhancements to determine how they interact and consider section 654 only if those statutes do not provide the answer." (People v. Ahmed (2011) 53 Cal.4th 156, 161 (Ahmed).)
In addition, " ' " '[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " ' [Citation.]" (People v. Jackson (2016) 1 Cal.5th 269, 354.)
"The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.]" (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313 (Hutchins).)
B. The Great Bodily Injury Enhancements Attached
to the Mayhem and Robbery Counts
Appellant contends the court erred when it imposed the great bodily injury enhancement on the mayhem count, pursuant to section 12022.7. Respondent agrees, but also contends the court erroneously stayed the great bodily injury enhancement on the robbery count.
Pursuant to subdivision (a) of section 12022.7, "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." Section 12022.7, subdivision (g), however, provides that the enhancement does not apply, inter alia, to murder or manslaughter, or "if infliction of great bodily injury is an element of the offense." This court has previously stated that "[g]reat bodily injury is unquestionably an element of mayhem; it is therefore improper to use that factor to aggravate the sentence for that offense. [Citations.]" (People v. Hill, supra, 23 Cal.App.4th at p. 1575; accord, People v. Pitts (1990) 223 Cal.App.3d 1547, 1558-1559 (Pitts).)
The court in this case thus erred when it ordered appellant to serve a consecutive three-year sentence under section 12022.7 for the personal infliction of great bodily injury during the commission of mayhem. (See § 12022.7, subd. (g); Ahmed, supra, 536 Cal.4th at p. 161.) We will therefore strike the great bodily injury enhancement attached to the mayhem count. (See § 1260 [court may modify a judgment or order appealed from, or reduce punishment imposed].)
Respondent further argues, however, that the court should not have stayed the great bodily injury enhancement attached to the robbery count.
In People v. Cook (2016) 60 Cal.4th 922, 925, 935 (Cook), our Supreme Court held, pursuant to section 12022.7, subdivision (g), that "great bodily injury enhancements simply do not apply to murder or manslaughter," even when the enhancement is "for the infliction of great bodily injury on other victims during the commission of the manslaughter." In a final footnote, however, the court "express[ed] no opinion regarding the question, not presented here, of whether and, if so, how great bodily injury enhancements may attach to other crimes for a defendant who is convicted of murder or manslaughter as well as those other crimes." (Cook, at p. 938, fn. 3.)
Subsequently, in People v. Lamb (2017) 8 Cal.App.5th 137, 143 (Lamb), the Fifth District Court of Appeal addressed the question left open in Cook, and concluded that where the offense enhanced by section 12022.7 was not the defendant's conviction for involuntary manslaughter, but his conviction for assault by means of force likely to produce great bodily injury, the prohibition in subdivision (g) of section 12022.7 did not apply.
The Lamb court did, however, agree with the defendant that "a defendant should not be subject to additional punishment merely because section 12022.7, subdivision (g), as written, does not preclude application of the enhancement to a nonprohibited felony, where a defendant is convicted of manslaughter, or another prohibited felony in the same proceeding." (Lamb, supra, 8 Cal.App.5th at p. 145; see also Hale v. Superior Court (2014) 225 Cal.App.4th 268, 275 [cited in Lamb for proposition that statutory purpose of great bodily injury "enhancement regime is not to maximize punishment under every pleading artifice a prosecutor can devise, but instead to 'deter[] the use of excessive force and the infliction of additional harm beyond that inherent in the crime itself' "].) As relevant here, the court in Lamb distinguished the case before it: "However, section 654 precludes the imposition of multiple punishment based on a single act, and here, the trial court stayed defendant's sentence for involuntary manslaughter pursuant to section 654 . Thus, defendant has not actually been punished twice." (Lamb, at p. 145, italics added.)
In this case, unlike in Lamb, the trial court did not stay appellant's sentence for mayhem. Therefore, even assuming we were to agree with the court in Lamb that a great bodily injury enhancement may attach to other crimes committed by a defendant who is convicted of an offense listed in subdivision (g) of section 12022.7, in the circumstances of this case, the stay on the great bodily injury enhancement to the robbery conviction was necessary to avoid "multiple punishment based on a single act," i.e., appellant's slashing of O'Callaghan's face. (Lamb, supra, 8 Cal.App.5th at p. 145.)
Accordingly, the court did not err when it stayed the great bodily injury enhancement attached to the robbery count, pursuant to section 654.
C. Propriety of Separate Punishments for Mayhem , Assault , and Robbery
Appellant contends the court erred in imposing separate punishments for the mayhem, assault with a deadly weapon, and robbery convictions. Respondent agrees that the court erred in imposing separate punishments for mayhem and assault with a deadly weapon, but argues that the court properly imposed a separate punishment for robbery because the mayhem and robbery were divisible crimes. Respondent further argues that the court erred when it stayed the weapon use enhancement on the robbery count.
1. Assault Count and Related Enhancements
Respondent agrees with appellant that the trial court erred when it imposed a separate concurrent sentence on the assault with a deadly weapon count because that offense and the mayhem offense were both committed during a single attack on one victim, and were therefore indivisible crimes. The parties are correct. (See Pitts, supra, 223 Cal.App.3d at p. 1560 [where defendant was convicted of both mayhem and assault based on attack against one victim, failure to stay sentence on assault count violated section 654].)
The fact that the court sentenced appellant to a concurrent, rather than consecutive, term on the assault count does not eliminate the section 654 violation. " 'It has long been established that the imposition of concurrent sentences is precluded by section 654 [citations] because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.' [Citation.] [¶] Instead, the accepted 'procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.' [Citations.] Accordingly, although there appears to be little practical difference between imposing concurrent sentences, as the trial court did, and staying sentence on [one] of the convictions, as [appellant] urges, the law is settled that the sentence[] must be stayed to the extent that section 654 prohibits multiple punishment." (People v. Jones (2012) 54 Cal.4th 350, 353.)
Respondent further agrees with appellant that the court should have also stayed the great bodily injury enhancement attached to the assault count, but correctly points out that the court also erred in making the sentence on that enhancement run concurrent, rather than consecutive, to the sentence on the assault count. (See § 12022.7, subd. (a) ["Any person who personally inflicts great bodily injury . . . shall be punished by an additional and consecutive term of imprisonment"].)
We will therefore modify the sentence on the great bodily injury enhancement to run consecutive to the sentence on the assault and stay both sentences pursuant to section 654. (See Pitts, supra, 223 Cal.App.3d at p. 1560 [where trial court erroneously fails to stay terms subject to section 654, appellate court must stay sentence on the lesser offenses while permitting execution of greater offense consistent with intent of sentencing court].)
2. Mayhem and Robbery Counts
Appellant claims the evidence shows that he committed mayhem for the sole purpose of facilitating the robbery and, therefore, punishment for both offenses is prohibited by section 654. We disagree.
"[W]here a burglary or a murder is committed to facilitate a robbery, section 654 prevents multiple separate terms under separate statutes for each such 'indivisible' offense. [Citations.]" (People v. Melton (1988) 44 Cal.3d 713, 767.) "However, an act of 'gratuitous violence against a helpless and unresisting victim . . . has traditionally been viewed as not "incidental" to robbery for purposes of Penal Code section 654.' [Citations.]" (People v. Bui (2011) 192 Cal.App.4th 1002, 1016.) In Bui, the defendant was convicted of robbery and attempted murder. (Id. at p. 1015.) Division Four of this District held that where "the evidence showed that the defendant continued to shoot [the victim] after he fell to the floor, face down, unable to move," the defendant's intent and objectives were factual questions for the trial court. (Id. at p. 1016.)
Similarly, in People v. Cleveland (2001) 87 Cal.App.4th 263, 271 (Cleveland), the defendant was convicted of robbery and attempted murder. The appellate court found that "[s]ufficient evidence existed for the trial court to conclude [the defendant] harbored divisible intents in committing two separate crimes" against the victim. (Ibid.) The court disagreed with the defendant that both crimes were committed based solely on an intent to rob his victim, given that the defendant had beaten the victim "senseless." (Id. at pp. 271-272, .) The court found that "the amount of force used in taking the [victim's] Walkman was far more than necessary to achieve one objective," observing that, " 'at some point the means to achieve an objective may become so extreme they can no longer be termed "incidental" and must be considered to express a different and more sinister goal than mere successful commission of the original crime. . . . [¶] . . . [¶] . . . [S]ection [654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.' " (Id. at pp. 271-272, quoting People v. Nguyen (1988) 204 Cal.App.3d 181, 191.) In addition, the defendant in Cleveland had become upset with the victim shortly before the attack, which provided evidence that something other than an intent to rob the victim "motivated the gratuitous violence" and further bolstered the finding that the defendant acted with "separate and simultaneous intents." (Cleveland, at p. 272.)
In People v. Hunter (1971) 19 Cal.App.3d 336, 338, the appellate court found proper separate punishment for kidnapping, in addition to oral copulation and rape, where the defendants had forced the victim into their car and transported her a distance of several miles, " 'not only to accomplish their plans to rob and rape her, but also to subject her to a "gang-style" series of assaults in which a number of other men participated . . . ." The defendants had thus engaged in "a series of divisible transactions and had multiple objectives—objectives entirely separate and apart from, and additional to, the objectives of the other two crimes of which they were convicted." (Ibid.)
Here, substantial evidence supports the court's separate sentencing on the robbery and mayhem counts, based on its implicit finding that the knife attack was not merely incidental to appellant's robbery of O'Callaghan. (See Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.) The court could reasonably find that after O'Callaghan rebuffed appellant's flirtatious overtures, he stabbed her in retaliation. At the time he told her to empty her pockets, the crime of mayhem was already complete. Moreover, appellant's violence plainly went so far beyond what was reasonably necessary for the commission of the robbery that it " 'can no longer be termed "incidental" and must be considered to express a different and more sinister goal than mere successful commission of the [subsequent] crime. . . .' " (Cleveland, supra, 87 Cal.App.4th at pp. 271-272; accord, People v. Bui, supra, 192 Cal.App.4th at p. 1016.)
Although in Cleveland, the defendant's "gratuitous violence" occurred after the robbery, the court's reasoning is applicable here too, where the attack occurred just after O'Callaghan snubbed appellant's flirtatious behavior and just before the robbery, and there was no evidence that such brutal violence was reasonably necessary for the commission of the robbery. (Cleveland, supra, 87 Cal.App.4th at p. 272.)
The court's sentencing choice was supported by substantial evidence showing that when appellant slashed O'Callaghan's face, he acted with a criminal intent and objective that was different from, or at least additional to, his intent to commit robbery. (See Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313; see also Cleveland, supra, 87 Cal.App.4th at pp. 271-272; People v. Hunter, supra, 19 Cal.App.3d at p. 338.)
3. Weapon Use Enhancement Attached to the Robbery Count
Respondent further argues that the court imposed an unauthorized sentence when it stayed the weapon use enhancement attached to the robbery count pursuant to section 654 "on the grounds that the enhancement had also been imposed on the mayhem conviction." Appellant counters that the court correctly stayed the weapon use enhancement on the robbery count because his conduct involved "a single assault, against a single victim."
As noted, section 654 applies to enhancements when the sentencing statute does not address whether multiple enhancements may be imposed. (Ahmed, supra, 53 Cal.4th at p. 161.)
Section 12022, subdivision (b)(1) provides: "A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense." Hence, an enhancement for weapon use under section 12022, subdivision (b)(1) is mandatory unless barred by section 654. (See Ahmed, supra, 53 Cal.4th at p. 161; cf. People v. Vega (2013) 214 Cal.App.4th 1387, 1396 [where statute stated that defendant "shall" be punished if enhancement was found true, "statutory language is clear—absent a lawful reason not to do so . . . , the gang enhancement must be imposed"].)
In People v. Wooten (2013) 214 Cal.App.4th 121, 131, the Third District Court of Appeal found that a defendant who had launched two different attacks on the same victim was not entitled to a stay on one of two great bodily injury enhancements. As the court explained, "[s]o long as the conduct giving rise to the convictions of separate substantive offenses is divisible or arises from separate criminal acts, neither section 654 nor Ahmed . . . requires the staying of the attached enhancements." (Wooten, at p. 133.)
In this case, we have found that section 654 does not bar separate punishment for the mayhem and robbery offenses, where there was substantial evidence that appellant's intent or objective in cutting O'Callaghan's face was not only to facilitate the robbery, but to punish O'Callaghan for rebuffing his advances. (See pt. II.B.2, ante.) The trial court, however, found that section 654 prohibited separate punishment for both weapon use enhancements. Substantial evidence supports the court's finding that appellant's use of the knife could be punished only once, based on the single act of slashing of O'Callaghan's face. (See People v. Reeves (2001) 91 Cal.App.4th 14, 56 [finding "no precedent approving of multiple sentence enhancements for a single assault against a single victim, even though the defendant committed additional crimes against that victim"]; see also Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313 [applicability of section 654 "is for the trial court, and the law gives the trial court broad latitude in making this determination"].)
Respondent nonetheless asserts that "because the mayhem and the robbery were divisible crimes, the trial court did not have the authority to stay the knife use enhancement on the robbery conviction." First, as already discussed, that the two crimes were divisible does not necessarily mean that appellant's knife use, punished by section 12022, was also divisible. (See People v. Reeves, supra, 91 Cal.App.4th at p. 56.) Second, because substantial evidence supports the court's finding that punishment for the weapon use enhancement on the robbery count was prohibited by section 654, the court did have "the authority" to stay the knife use enhancement. (See Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.) Accordingly, there was no unauthorized sentence. (See People v. Sanders, supra, 55 Cal.4th at p. 743, fn. 13.)
DISPOSITION
The judgment is modified as follows: (1) the great bodily injury enhancement attached to the mayhem count is stricken; (2) the sentence on the great bodily injury enhancement attached to the assault with a deadly weapon count is ordered to run consecutive to the sentence on the assault; and (3) the sentences on both the assault with a deadly weapon and the related great bodily injury enhancement are ordered stayed, pursuant to section 654. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare a corrected abstract of judgment reflecting these modifications and to forward a copy of it to the Department of Corrections and Rehabilitation.
As a result, appellant's total sentence will be reduced from 13 years to 10 years.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.