Opinion
F074530
08-16-2018
THE PEOPLE, Plaintiff and Respondent, v. OSVALDO PULIDO, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PCF306511A)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Michael B. Sheltzer, Judge. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Osvaldo Pulido challenges his conviction for the attempted premeditated murder of his sister's boyfriend, Pedro Nunez Alvarez. He argues there is insufficient evidence of premeditation and deliberation to support the conviction. We find the evidence sufficient.
He also contends the court erred when it failed to instruct the jury sua sponte on the lesser included offense of attempted voluntary manslaughter under the heat of passion and provocation theory. We conclude that the error, if any, was harmless beyond a reasonable doubt on the facts presented here.
We requested supplemental briefing regarding the court's decision to stay a prior prison term enhancement on each of three counts. We conclude the enhancements should have been stricken pursuant to People v. Jones (1993) 5 Cal.4th 1142 (Jones). Accordingly, we modify the judgment by striking each of the one-year enhancements for the prior prison term. We affirm the judgment as modified.
PROCEDURAL HISTORY
Following a jury trial, appellant was convicted of attempted premeditated murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and battery with serious bodily injury (§ 243, subd. (d); count 3). As to counts 1 and 2, the jury found true that appellant had personally inflicted great bodily injury. (§ 12022.7, subd. (a).) As to counts 1, 2, and 3, the jury found true that appellant had personally used a dangerous or deadly weapon. (§§ 12022, subd. (b)(1), 969f.) In bifurcated proceedings, the jury found true that appellant had suffered two prior strike convictions for assault with a deadly weapon and, based on those same offenses, did not remain free of prison custody for the five-year period preceding the present offenses. (§§ 667, subd. (a)(1), 667.5, subd. (b), 1170.12.) The trial court sentenced appellant on count 1 to 25 years to life (§ 1170.12, subd. (c)(2)(A)(ii)), plus three years for the great bodily injury enhancement, one year for the use of a dangerous weapon enhancement, and two five-year terms for the prior serious felony convictions. A one-year sentence for a prior prison term enhancement was stayed. Appellant was sentenced to an aggregate term of 25 years to life plus 14 years. The sentences on counts 2 and 3 were stayed pursuant to section 654.
All further statutory references are to the Penal Code.
FACTUAL BACKGROUND
On July 27, 2014, Pedro Nunez Alvarez and Veronica Pulido were making repairs to a house on a ranch property in Lindsay owned by Jose Alvarez, preparing it for rental by Veronica's brother Osvaldo, appellant in this case. Pedro and Veronica had been dating on and off for five years, but their relationship was plagued by fighting and episodes of mutual violence.
Although Pedro and Jose share the same last name, they are not related. Many individuals involved in this case share last names. For clarity, we refer to them by first names. No disrespect is intended.
That afternoon, Pedro perceived that Veronica was flirting with a mutual acquaintance and an argument ensued. Veronica told Pedro to leave. Pedro and Veronica began pushing each other. Veronica called her mother, Consuelo, and asked for a ride. According to Pedro, he went across the street and Veronica threw rocks and oranges at him. According to Veronica, Pedro threw out her belongings and threw rocks and full cans of beer at her. Pedro called 911. Veronica left and walked through the orchards for approximately a half mile.
At approximately 6:00 or 6:30 p.m., Jose, the ranch owner, returned to the ranch. Jose could see Pedro was sad because he and Veronica had argued. Pedro went into Jose's backyard and sat at a picnic table, where he waited for Jose to pay him for his work. Consuelo eventually picked up Veronica and drove her to the ranch entrance where they stopped to talk to Jose.
While these events were transpiring, Osvaldo was also on his way to the ranch. Before this incident, Pedro and Osvaldo had met once or twice before. Osvaldo did not approve of Pedro's relationship with Veronica and warned Pedro to stay away from her. Osvaldo had been home with Consuelo when Veronica called asking for a ride. He had recently arrived home from work and was getting ready to go out. However, Consuelo told Osvaldo something had happened between Veronica and Pedro, and Osvaldo became sad and worried. He went to Pedro's house, where he arrived at approximately 7:45 p.m. He tried to enter the house and encountered Pedro's roommate. Osvaldo was angry and was looking for Pedro, stating, "I know he is here." The roommate told Osvaldo where Pedro was. Osvaldo talked to the roommate for a few minutes and then left.
Osvaldo went to the ranch and pulled up alongside Consuelo. He got out of his car and asked Jose where Pedro was. Jose told him Pedro was in the back. Osvaldo walked straight down the driveway toward Pedro. Veronica followed him. Jose felt that something was off and noticed that Osvaldo was walking "awful fast." Jose and Consuelo then followed as well.
Pedro stood up and waited for Osvaldo to come to him. He thought maybe they were going to fight. From about 10 to 15 feet away, Osvaldo asked, "What did I tell you?" Pedro interpreted this as both a threat and a reference to prior statements by Osvaldo warning Pedro against committing domestic violence against Veronica. Pedro said nothing in response and just stood there.
Osvaldo stabbed Pedro with a small knife. Pedro immediately felt something poking him. He walked backwards and fell back on a pile of trash. He looked down and saw that he was covered with blood and realized he had been stabbed a couple of times. Osvaldo got on top of Pedro and cut a large "x" across Pedro's stomach. Osvaldo also stabbed Pedro in the hand. Pedro tried to get up to get away but he was holding his intestines in his hand. Osvaldo stood there looking at him. Veronica and her mother kicked dirt at Pedro. Veronica cursed at Pedro and called him names, stating, "This is what happens." Consuelo called him a "stupid dog." Osvaldo ran off the property and drove away. Veronica and her mother ran right behind Osvaldo and left separately.
Jose called 911. Pedro was taken by ambulance to a hospital, where he remained for 13 days. He was left with scarring, spasms, numbness, and digestive issues.
The defense case rested largely on testimony from Veronica and Osvaldo that Osvaldo had acted in self-defense. Veronica testified that she saw Pedro and Osvaldo arguing and pushing each other at the back of Jose's property. Pedro was calm. Osvaldo was asking, "What's wrong with you?" and "Why do you keep hitting her?" She couldn't see Osvaldo's hands and didn't see Osvaldo stab Pedro. When Pedro fell back Veronica saw an opened pocket knife on the ground next to him. She recognized the knife as belonging to Pedro and picked it up, but did not report the knife to law enforcement. Later, she was unable to locate the knife. No knife was located at the scene of the offense.
Osvaldo testified that he and Pedro initially confronted each other. Pedro was in a fighting stance but with his hands down in his pockets, "like he was ready." Osvaldo knew Pedro had a reputation for carrying guns or knives and he believed Pedro was "pulling out something." However, he never saw anything in Pedro's hands. They pushed each other and then, "[i]t just happened," and Pedro was on the ground. Osvaldo "looked real quick and [then] took off." He denied that he got on top of Pedro and sliced him across the abdomen.
Osvaldo denied that he went to the ranch to confront Pedro or that he knew what he was going to do when he arrived. Instead, he "went for [his] sister and that was it." He told Pedro to leave Veronica alone and to act like a man. He was trying to help them out. He denied that he attacked Pedro out of anger; instead, he was acting for his own safety and defense. He explained that he uses weapons any time he is approached in a confrontation "[b]ecause they are going to do it first so I do what they are doing, and I guess I am just faster than them." He confirmed that he previously used a rebar rod against Veronica and a knife against another individual. He always carries a knife because he works in the fields and uses it every day.
DISCUSSION
I. Sufficient Evidence of Premeditation and Deliberation
Appellant argues there is insufficient evidence of premeditation and deliberation to support the conviction for attempted premeditated murder. He contends instead that the attack occurred out of anger and in the heat of the moment.
In reviewing the sufficiency of the evidence, " 'we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.) The conviction shall stand unless it appears " ' 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (Cravens, at p. 508.) The standard of review is the same in cases in which a conviction is based primarily on circumstantial evidence. (People v. Clark (2016) 63 Cal.4th 522, 625.)
Attempted first degree murder requires a finding of premeditation and deliberation. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223-1224.) "Premeditated" means that the defendant thought about or considered the act beforehand. (People v. Pearson (2013) 56 Cal.4th 393, 443 (Pearson); People v. Perez (1992) 2 Cal.4th 1117, 1123 (Perez).) "Deliberate" means " 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' " (Perez, at p. 1123.) " 'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' " (Pearson, at p. 443.) Premeditation and deliberation can occur rapidly. (People v. Cook (2006) 39 Cal.4th 566, 603-604; People v. Thomas (1945) 25 Cal.2d 880, 900 (Thomas).) "The true test is not the duration of time as much as it is the extent of the reflection." (Thomas, at p. 900.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our Supreme Court provided guidelines "for the kind of evidence which is sufficient to sustain a finding of premeditation and deliberation." (Id. at p. 26.) Such evidence includes: "(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing - what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of 'a pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed' [citation]; [and] (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2)." (Id. at pp. 26-27, original italics.)
We turn first to the evidence of planning. We begin by noting that Osvaldo came armed to the conflict. Although he testified that his possession of the knife was incidental to his work in the fields, he also testified that he had returned from work and was preparing to go out when he learned of Veronica's fight with Pedro. He additionally testified that he uses weapons in confrontations. From this testimony, a reasonable juror could conclude that Osvaldo brought the knife to the ranch because " 'he planned a violent encounter.' " (People v. Elliot (2005) 37 Cal.4th 453, 471; see also People v. Lee (2011) 51 Cal.4th 620, 636; People v. Koontz (2002) 27 Cal.4th 1041, 1082.) Testimony that Osvaldo went looking for Pedro also demonstrates planning. (See People v. Wright (1985) 39 Cal.3d 576, 592-593 [evidence of planning where defendant actively looked for victim before shooting him].) Furthermore, Osvaldo's conduct upon arriving at the ranch reasonably supports the conclusion that he considered in advance the possibility of murdering Pedro and acted according to a preconceived plan: Osvaldo immediately asked about Pedro's whereabouts, proceeded rapidly in his direction, and stabbed him within seconds.
The record also contains substantial evidence of motive. Domestic violence was a regular part of Pedro and Veronica's relationship. Osvaldo was aware of that history and had warned Pedro to stay away from Veronica. On the date of the incident, Osvaldo believed Pedro had engaged in further violence against Veronica. A reasonable juror could conclude that the continued violence and Pedro's disregard for Osvaldo's admonition motivated Osvaldo to seek out and attack Pedro. This evidence reflects "not merely ... a motive to kill, but ... the kind of motive that 'would in turn support an inference that the killing was the result of a "pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed." ' " (People v. Boatman (2013) 221 Cal.App.4th 1253, 1268, original italics (Boatman).)
In this regard, the instant case is distinguishable from Boatman, on which appellant primarily relies. In Boatman, the defendant was convicted of first degree murder after shooting his girlfriend in the face. (Boatman, supra, 221 Cal.App.4th at p. 1257.) However, the only evidence of motive was text messages from the girlfriend indicating that defendant was in a bad mood and testimony that the couple had engaged in a loud screaming match at the time of the shooting. (Id. at pp. 1267-1268.) The Fourth District Court of Appeal concluded this evidence indicated only an unconsidered or rash impulse, rather than premeditation or deliberation. (Id. at p. 1268.) In contrast, here, the evidence supports an inference that Osvaldo's motive for killing Pedro developed not in the moment, but prior to his arrival at the ranch, and with sufficient time for reflection and deliberation.
Lastly, the manner of the attack also suggests deliberation and reflection. Osvaldo initially inflicted several stab wounds in quick succession. This alone does not necessarily suggest premeditation. (Anderson, supra, 70 Cal.2d at pp. 24-25.) However, Osvaldo also climbed on top of Pedro and slit open his abdomen, causing his intestines to fall out. From this, the jury could conclude that Osvaldo engaged in a cold, calculated, and deliberate effort to subject Pedro to a prolonged and painful death. (See People v. Brady (2010) 50 Cal.4th 547, 564; Thomas, supra, 2 Cal.4th at p. 517 ["particular and exacting" method of killing warrants inference that defendant acted in accordance with preconceived design].)
Appellant disputes that there is sufficient evidence of the Anderson factors to establish premeditation and deliberation. He argues competing inferences the jury could draw from the evidence and, based thereon, contends that the attack occurred out of anger and in the heat of the moment. However, our role is not to reweigh the evidence, but to determine whether there is substantial evidence of premeditation from which a reasonable trier of fact could find appellant guilty beyond a reasonable doubt. (Cravens, supra, 53 Cal.4th at p. 507; People v. Alexander (2010) 49 Cal.4th 846, 917 (Alexander).) " ' "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." ' " (Alexander, at p. 917.)
Applying the Anderson guidelines, we find sufficient evidence to support a finding of premeditation and deliberation.
II. Attempted Voluntary Manslaughter Instruction
Appellant contends the court erred in failing to instruct the jury sua sponte with the heat of passion and provocation theory of attempted voluntary manslaughter. Assuming without deciding that the court so erred, we conclude the error was harmless beyond a reasonable doubt.
There is some question whether prejudice arising from failure to instruct on a heat of passion manslaughter theory in a non-capital case should be evaluated under the federal constitutional standard set out in Chapman v. California (1967) 386 U.S. 18, or the state standard set out in People v. Watson (1956) 46 Cal.2d 818. (See People v. Moye (2009) 47 Cal.4th 537, 564 (dis. opn. of Kennard, J.); People v. Lasko (2000) 23 Cal.4th 101, 113; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1145-1146.) We need not resolve this question because the error here is harmless even under the more stringent federal standard. Under this standard, error requires reversal unless it appears beyond a reasonable doubt that it did not contribute to the verdict. (Chapman, at p. 24.)
A trial court has a duty to instruct, sua sponte, on any lesser offense necessarily included in the charged offense "if there is substantial evidence that only the lesser crime was committed." (People v. Birks (1998) 19 Cal.4th 108, 112.) Attempted voluntary manslaughter is a lesser included offense of attempted murder. (See People v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).) Unlike murder, manslaughter lacks the element of malice. (People v. Rios (2000) 23 Cal.4th 450, 460) "Heat of passion" is a theory of "partial exculpation" that serves to reduce murder to manslaughter by negating the element of malice. (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1015-1016; Beltran, at p. 942.) "[T]he factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provocation." (People v. Lee (1999) 20 Cal.4th 47, 59.) The provocation must be sufficient to cause an " ' "ordinarily reasonable person of average disposition to act rashly and without due deliberation and reflection ...." ' " (Ibid.)
"[I]n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury." (People v. Sedeno (1974) 10 Cal.3d 703, 721, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165; People v. Wright (2006) 40 Cal.4th 81, 98.) In other words, "[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to [the] defendant under other properly given instructions." (People v. Lewis (2001) 25 Cal.4th 610, 646.)
Here, appellant could not have been prejudiced by the court's failure to instruct the jury on the heat of passion theory of manslaughter because the jury necessarily resolved the relevant factual questions adversely to him when it found him guilty of attempted premeditated murder. The jury was instructed that, if it found the defendant guilty of attempted murder, it must determine whether the People had additionally proved that the attempted murder was done willfully, and with deliberation and premeditation:
"The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting.(See CALCRIM No. 601.) The jury found appellant guilty of attempted murder, and also found true that the attempted murder was committed willfully, deliberately, and with premeditation.
"The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."
Courts have rejected claims of prejudice in similar circumstances. In People v. Wharton (1991) 53 Cal.3d 522, 543, the defendant claimed he killed the victim in an uncontrolled rage. The jury was given comprehensive instructions on the heat of passion and provocation, but the court erroneously refused to instruct the jury "that legally adequate provocation could occur over a considerable period of time." (Id. at pp. 570-571.) The Supreme Court found no prejudice. "By finding defendant was guilty of first degree murder, the jury necessarily found defendant premeditated and deliberated the killing. This state of mind, involving planning and deliberate action, is manifestly inconsistent with having acted under the heat of passion - even if that state of mind was achieved after a considerable period of provocatory conduct - and clearly demonstrates that defendant was not prejudiced by the failure to give his requested instruction." (Id. at p. 572.)
Similarly, in People v. Speight (2014) 227 Cal.App.4th 1229, 1233, the defendant was convicted on two counts of attempted premeditated murder. The jury was instructed on the lesser included offense of attempted voluntary manslaughter, but was not instructed that the prosecution had to prove beyond a reasonable doubt that the defendant did not act in the heat of passion. (Id. at p. 1244.) The jury ultimately found that the defendant acted willfully, deliberately, and with premeditation. (Id. at p. 1246.) The Fourth District Court of Appeal found this state of mind "inconsistent with having acted under the heat of passion." (Ibid.) Accordingly, the court determined that the jury " 'necessarily resolved the factual question adversely' " to the defendant when they found him guilty of attempted murder. (Ibid.)
Likewise, in People v. Peau (2015) 236 Cal.App.4th 823, 825, the defendant was convicted of first degree murder. The jury was instructed that provocation may reduce murder to manslaughter, but no heat-of-passion instruction was given. (Id. at pp. 828-829.) The First District Court of Appeal concluded that any error was harmless beyond a reasonable doubt "because the jury necessarily rejected the possibility that [the defendant] acted in the heat of passion by convicting him of first degree murder." (Ibid.)
Here, the jury found that appellant acted willfully, deliberately, and with premeditation. In so doing, the jury necessarily rejected any claim that appellant acted "rashly, impulsively, or without careful consideration." (See CALCRIM No. 601.) These findings are inconsistent with a finding that appellant acted in the heat of passion. We therefore conclude that the court's failure to give a heat-of-passion instruction was harmless beyond a reasonable doubt.
III. Prior Prison Term Enhancements
The jury found true that appellant suffered two prior convictions for assault with a deadly weapon and, in relation to those convictions, did not remain free of prison custody for the five-year period preceding the offenses at issue in this case. The trial court imposed sentencing enhancements for two prior serious felonies (§ 667, subd. (a)(1)), and stayed the one-year enhancements for the prior prison term (§ 667.5, subd. (b)). We requested supplemental briefing on the question of whether the trial court should have stricken, rather than stayed, the prior prison term enhancements pursuant to Jones, supra, 5 Cal.4th 1142. The People contend that the enhancements were properly stayed. Appellant argues that the enhancements should be stricken.
The trial court imposed and stayed the prior prison term enhancement on each of the three counts on which appellant was convicted. At least one of these enhancements appears to have been imposed in error. (People v. Tassell (1984) 36 Cal.3d 77, 89-91 [enhancements that go to the nature of the offender, such as those under section 667.5, are to be "added just once as a component of the aggregate term"]; People v. Williams (2004) 34 Cal.4th 397, 402-403 [reasoning of Tassell does not apply to indeterminate terms]; People v. Minifie (2018) 22 Cal.App.5th 1256, 1264-1265 [prior prison term enhancements are to be applied once to the indeterminate sentence and once to the determinate sentence].) However, because we conclude that all the prior prison term enhancements must be stricken under Jones, supra, 5 Cal.4th 1142, we do not address this issue.
In Jones, supra, our Supreme Court held that the same prior conviction cannot be used as the basis for both a prior serious felony enhancement and a prior prison term enhancement. (5 Cal.4th at pp. 1150-1153.) In such circumstances, "the greatest enhancement, but only that one, will apply." (Id. at p. 1150.) Accordingly, the court remanded with directions to strike a prior prison term enhancement that was based on the same offense as the prior serious felony enhancement. Appellate courts have since relied on Jones to strike prior prison term enhancements that are based on the same underlying offense as a prior serious felony enhancement. (E.g., People v. Perez (2011) 195 Cal.App.4th 801, 805; People v. Solis (2001) 90 Cal.App.4th 1002, 1021; People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610.) Our Supreme Court recently reaffirmed this approach. (People v. Anderson (June 28, 2018, S138474) ___ Cal.5th ___ [18 C.D.O.S. 6571; 2018 WL 3150946] [stating that, "because the prison term was served for two of the convictions for which the court also enhanced the sentence, the enhancement for the prior prison term must be stricken"]; see also People v. Langston (2004) 33 Cal.4th 1237, 1241 [noting that a "trial court may not stay the one-year enhancement, which is mandatory unless stricken"].)
Nonetheless, at least one appellate court has held that, in these circumstances, the prior prison term enhancement should be stayed, rather than stricken. (People v. Brewer (2014) 225 Cal.App.4th 98 (Brewer).) In so holding, Brewer relied primarily on People v. Lopez (2004) 119 Cal.App.4th 355 (Lopez), and People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez). (Brewer, at pp. 104-106.) Lopez held that the multiple victim special circumstance under the habitual sexual offender law (§ 667.71) should be stayed when the trial court sentences the defendant under the alternative sentencing scheme of the one strike law (§ 667.61). (119 Cal.App.4th at p. 364.) The one strike law expressly prohibited striking the special circumstance finding. Accordingly, the court declined to follow Jones and instead concluded that the correct procedure was to impose but stay the sentence under California Rules of Court, rule 4.447. (Lopez, at pp. 364-366.) In Gonzalez, the Supreme Court held that a trial court must stay firearm enhancements imposed under section 12022.5 after imposing a section 12022.53 firearm enhancement. (43 Cal.4th at p. 1123.) Gonzalez did not address Jones and declined to address the import of California Rules of Court, rule 4.447. Instead, the court focused on interpreting the specific statutory provisions governing the firearms enhancements at issue. (Gonzalez, supra, at pp. 1125-1130.)
At the time Lopez was decided, California Rule of Court, rule 4.447 read as follows: "No finding of an enhancement shall be stricken or dismissed because imposition of the term is either prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge shall impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and shall thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay shall become permanent upon the defendant's service of the portion of the sentence not stayed." (Cal. Rules of Court, rule 4.447.)
We find Brewer's reliance on Lopez and Gonzalez unpersuasive in the circumstances presented here. Both cases involved sentencing provisions not at issue in this case. Furthermore, striking the prior prison term enhancement was the procedure proscribed and recently reaffirmed by our Supreme Court. We are bound to follow this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore conclude that the prior prison term enhancements must be stricken.
DISPOSITION
We modify the judgment by striking the three one-year enhancements for the prior prison term. We direct the trial court to send to the Department of Corrections and Rehabilitation a corrected abstract of judgment with the enhancements stricken. We affirm the judgment as modified.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
MEEHAN, J.