Opinion
D057762 Super. Ct. No. SWF024690
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JARED RICHARDSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, Mark E. Petersen, Judge. Affirmed.
On the evening of February 16, 2008, a group of five invaders broke into the home of Patrick Dameworth and attacked Dameworth and his girlfriend. A jury found defendant Michael Richardson was one of the invading group and convicted him of numerous counts in connection with that invasion. The jury found Richardson guilty of one count of robbery (Pen. Code, § 211, count 1) and found true the allegation that he acted in concert with others to commit the robbery (§ 213, subd. (a)(1)(A)), but found not true the allegation that he was personally armed with a firearm in committing the robbery. The jury also found Richardson guilty of one count of burglary (§ 459, count 2) and found true the allegation that a person other than an accomplice was present within the meaning of section 667.5, subdivision (c)(21). The jury also found Richardson guilty of two counts of assault with a deadly weapon (§ 245, subd. (a)(1), counts 3 and 4), but found not true the allegation appended to one of the assault counts that Richardson personally used a deadly weapon within the meaning of sections 667.5 and 1192.7, subdivision (c)(23). In a bifurcated proceeding, the court found true the allegations that Richardson had two or more prior convictions under the three strikes law (§ 667, subds. (c) & (e)(2)(A), § 1170.12, subd. (c)(2)), two prior serious felony convictions within the meaning of section 667, subdivision (a), and served two prior prison terms within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Richardson contends: the testimonies of Dameworth and a third party witness identifying Richardson as one of the invaders were insufficiently credible to support the guilty verdicts; the court erred in admitting certain evidence concerning a threat made to dissuade Dameworth from identifying Richardson as one of the perpetrators; the sentences on the assault charges should have been stayed under section 654; the sentence for a prior prison term should have been stricken rather than stayed; and the judgment should be reversed because of cumulative error.
I
FACTUAL BACKGROUND
A. Background
At the time of trial, Dameworth had known Richardson for approximately four to five years. Some time in late March or early April 2007, Richardson was with Amber when they visited Dameworth at his home. Amber, who knew Dameworth had received money from a settlement of a lawsuit, went to Dameworth's home to borrow money from him. Dameworth stored the settlement funds, amounting to approximately $9000 in cash, in a safe under his bed. Dameworth retrieved $200 from the safe and loaned it to Amber. On April 3, 2007, someone broke into Dameworth's house and took the safe. The following day, a neighbor told Dameworth that, just prior to the burglary, the neighbor had seen the same car Amber was in when she and Richardson visited a few days earlier. Although Dameworth initially thought others had taken the safe, he came to suspect Richardson was responsible for the burglary.
Dameworth saw Richardson numerous times during the four-to-five month period spanning the end of 2002 and beginning of 2003 because Richardson was dating Amber, the daughter of Dameworth's ex-girlfriend. Dameworth considered Richardson a "little punk" and a "piece of trash" and believed Richardson was giving drugs to Amber.
B. The February 16, 2008, Burglary, Assaults and Robbery
Around February 1, 2008, Dameworth saw Amber, then living on the streets. Dameworth gave her $50.
In early February 2008, Dameworth and his girlfriend (Janine J.) moved into a trailer in Homeland, California. Around 4:00 p.m. on February 16, 2008, Dameworth was working outside when he noticed a white truck being driven slowly past his trailer. The truck had a deep muffler, a raised four-wheel drive, tinted windows, and an extended cab.
Dameworth saw the truck stop in front of his neighbor's house, and saw it leave a few minutes later. However, Dameworth heard a loud muffler approximately two minutes after the truck drove away from Garcia's house and saw the same truck, parked in a field approximately 50 yards away, facing his house with two men in the truck staring at his house.
Dameworth's neighbor, Martin Garcia, also noticed the truck. Garcia saw the truck being driven up and down the street several times before it stopped in front of his home, which Garcia thought was strange because the street was a dead end road. After the truck stopped, Richardson (accompanied by two men and a woman) approached Garcia's house and asked for Pablito (the uncle of Garcia's girlfriend), but the group left when Garcia told them Pablito was not there. It was light outside when Garcia spoke to Richardson on February 16, and Garcia got a good look at his face, and positively identified Richardson as the person who came to his gate that day.
Garcia did not personally know Richardson. However, a couple of days before the home invasion, a woman had come to his house looking for Pablito, and she was accompanied by Richardson. It was the first time Garcia had seen Richardson. When Richardson approached Garcia on February 16 asking for Pablito, Garcia recognized him as the man who had been there a couple of days earlier.
Later that night, after it was dark, Dameworth and Janine were in bed when they heard a loud crash. Dameworth jumped from bed and went to investigate. He saw the door to the trailer had been ripped off the hinges and saw a group of intruders, wearing masks and armed with yard tools, charging at him. Dameworth was struck in the head with a shovel, which dropped him to the floor, and the intruders beat him while he was lying on the floor.
Dameworth fought back against his attackers and, during the fight, Richardson's mask came off. Dameworth, standing just a foot away, immediately recognized his face and asked, "What are you doing this for, Mike?" and Richardson replied, "Shut the fuck up, Pat." Dameworth also recognized the green swastika tattoos on the top of each of Richardson's hands and the tattoo on Richardson's neck. While the intruders were assaulting Dameworth, they were also attacking Janine, who was knocked to the floor by a blow from a shovel. One intruder, who had a female voice, held her down by the hair and screamed, "Where's the safe, bitch?" Janine replied there was no safe. Just before the woman left the trailer, she kicked Janine in the head, causing severe head trauma.
The intruders continued to beat Dameworth, and eventually dragged him outside and down the steps. However, Dameworth was able to break away and run toward Garcia's house. As Dameworth was fleeing, he heard men's voices saying, "Don't do it Mike, don't do it. It ain't worth it." Dameworth turned and saw Richardson, standing near a truck, pointing a gun at him.
Garcia heard noises coming from Dameworth's trailer. He looked outside and saw three men, including a man he recognized as Richardson, attacking Dameworth. Dameworth was running toward Garcia's house yelling, "They're going to kill me, they're going to kill me." One week after the attack, Garcia identified Richardson in a photographic lineup as one of the attackers. The invaders stole numerous items from Dameworth and his girlfriend.
C. Evidence of Threats to Dameworth
At the preliminary hearing on the charges against Richardson, Dameworth was reluctant to positively identify Richardson as one of the invaders, and he expressed some uncertainty over whether Richardson (rather than another member of the invading group) was the person in the group who pointed the gun at him. However, Dameworth explained at trial that, shortly before the scheduled preliminary hearing date, a skinhead identifying himself as Sam Satan contacted Dameworth and told him to "change [his] story or . . . suffer the consequences." These contacts made Dameworth afraid for his and Janine's safety. Dameworth reported the contacts to the district attorney's investigator.
Dameworth testified that approximately one week before the scheduled preliminary hearing date, a skinhead came to Dameworth's house and told him not to show up at the preliminary hearing. The same person called Dameworth the night before the scheduled preliminary hearing date and told him he should instead show up but to state he was not sure of his identification.
Deputy District Attorney Pfohl was assigned to conduct the preliminary hearing in Richardson's case. On June 20, 2008, Dameworth contacted Pfohl and told him of Sam Satan's contacts. Pfohl testified that Dameworth, although maintaining that Richardson was one of the invaders, stated he feared for his safety and was uncomfortable about making an in-court identification of Richardson because of the threats.
II
ANALYSIS
A. The Substantial Evidence Claim
Richardson, relying on a variety of purported inconsistencies and weaknesses in the prosecution's case, contends the evidence was insufficient to prove Richardson was one of the invaders. Richardson argues that because Dameworth's identification of him as one of the invaders was impeached for numerous reasons, and Garcia's identification of him as one of the invaders was tainted by his collaboration with Dameworth, the evidence was insufficient to establish beyond a reasonable doubt that Richardson was one of the invaders.
When determining whether the evidence was sufficient to sustain a criminal conviction, "we review the whole record in the light most favorable to the judgment below 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. Snow (2003) 30 Cal.4th 43, 66.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Both Dameworth and Garcia identified Richardson as one of the invaders, and both men (to a greater or lesser degree) had a sufficient prior exposure to Richardson to be able to recognize him when they saw him the night of the offenses. We are unpersuaded by Richardson's effort to dismiss that evidence because our review of the entire record establishes the purported inconsistencies cited by Richardson were minor, or were satisfactorily explained at trial, or cannot properly be characterized as actual inconsistencies. By way of example, Richardson points out Dameworth equivocated at the preliminary hearing on his level of certainty as to the identification of Richardson. However, the jury could conclude that the threats Dameworth received from Sam Satan explained why Dameworth equivocated during the preliminary hearing. Richardson also seizes on a snippet of Dameworth's 911 call reporting the attack, noting Dameworth, after telling the operator "I know who they are," can be overheard asking Janine, "Yeah, what was his name? Was that Mike Richardson or the other one? . . . . Oh." Richardson argues this showed Dameworth had to ask Janine because Dameworth did not know if it was Richardson, or someone who looked like him, who was one of the invaders. However, Dameworth's question ("Was that Mike Richardson or the other one?") was immediately followed by Dameworth's statement to the 911 operator that, "He ran out there and got a gun." The jury could have concluded that Dameworth did not have certainty whether it was Richardson or another invader who retrieved and brandished the gun, not uncertainty over whether Richardson was one of the invaders.
Richardson's attempts to point out discrepancies in Garcia's identification are also unpersuasive. For example, although Richardson asserts Dameworth's identification of him was undermined by Dameworth's vendetta against him, he offers no explanation why Garcia would be motivated to frame him. He also asserts that Garcia, after testifying on direct that Richardson was the man who had twice come to Garcia's house looking for Pablito, admitted on cross-examination he did not know whether it was Richardson or not, and denied stating Richardson was the man at Garcia's house a few days earlier. However, the testimony Richardson cites for this argument, read in context, involved Garcia's responses to the defense questions about what Garcia told police when they investigated the crime, and Garcia only said "I don't believe I ever said it was Mike Richardson [who accompanied the girl]" because Garcia did not know his name at that time.
Most importantly, conflicts, inconsistencies, and discrepancies in the evidence do not amount to an absence of substantial evidence. "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181; see also People v. Maury (2003) 30 Cal.4th 342, 403 ["Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts"]; People v. Alexander (2010) 49 Cal.4th 846, 918 [it is for jury to weigh the impact of a witness's bias when determining which version of events to credit].)
None of the purported evidentiary problems cited by Richardson demonstrate the evidence was impossible or inherently improbable. To the contrary, the accounts given by Dameworth and Garcia were consistent in all significant respects. The alleged inconsistencies in the evidence were argued to the jury by defense counsel, and it was the role of the jury, not this court, to resolve any evidentiary discrepancies. Richardson's argument amounts to a request that we reweigh the evidence on appeal, which is not the function of an appellate court. (People v. Young, supra, 34 Cal.4th at 1181; People v. Maury, supra, 30 Cal.4th at p. 403.) The evidence was sufficient to support the judgment.
B. Evidence of the Threat
Richardson contends the court erred by (1) permitting Dameworth to testify he had been threatened by Sam Satan shortly before Richardson's preliminary hearing, and (2) permitting Pfohl to testify that Dameworth reported the threats from Sam Satan shortly after receiving them and immediately identified Richardson as the perpetrator when Dameworth saw him minutes before the start of the preliminary hearing.
Background
At Richardson's preliminary hearing, after Dameworth testified an intruder had become unmasked during the struggle, he was asked whether "you see that person in the courtroom today?" Dameworth replied, "I can't honestly say that I do. I'd like to, maybe, perhaps, look at another lineup." He later testified that, although he told police it was Richardson when they investigated the burglary, "I absolutely am not sure, but I—I cannot say that I'm sure [now]."
Prior to trial, the defense moved in limine to exclude any evidence of the threat by Sam Satan because there was no evidence Richardson authorized or encouraged the threat. The prosecution countered that, if the defense used Dameworth's preliminary hearing testimony to impeach his trial identification of Richardson, the threat evidence would be admissible to explain why Dameworth's preliminary hearing testimony was inconsistent with his trial testimony. The court concluded the evidence could be admissible if Dameworth's state of mind at the time he gave his preliminary hearing testimony became relevant at trial, but it would defer ruling on the threat evidence until that time.
On direct examination at trial, Dameworth positively identified Richardson as one of the intruders. On cross-examination, the defense sought to impeach the certainty of Dameworth's identification by using the testimony from the preliminary hearing in which he expressed uncertainty over whether Richardson was involved. On redirect examination, and over the defense's relevance objections, the prosecutor obtained the information of the nature and timing of the threats from Sam Satan in connection with the preliminary hearing.
The prosecutor, again over defense objection, also called Pfohl to testify that, on June 20, 2008, Pfohl and an investigator interviewed Dameworth about his contacts with Sam Satan, and that Sam Satan's statements "related to how [Dameworth] should testify at the preliminary hearing." Pfohl also testified that a few weeks later, just minutes before the preliminary hearing commenced, Dameworth was outside of the courtroom where he was able to secretly observe Richardson and at that time "immediately identified" Richardson as the person who robbed him.
Analysis of Admission of Dameworth's Testimony
"Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. [Citations.] Testimony a witness is fearful of retaliation similarly relates to that witness's credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witness's fear of retaliation is directly linked to the defendant for the evidence to be admissible." (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588, italics added.) As the Gutierrez court noted, "In the present case [three witnesses] gave statements to the police and identified appellant as the [perpetrator]. By the time of trial all three witnesses were reluctant to testify. They either recanted their prior statements, claimed loss of memory or claimed their earlier testimony was tainted. None of these witnesses was willing to identify appellant as the [perpetrator] at trial. Under these circumstances the jury was entitled to learn of possible reasons for the witnesses' radically different versions of what they saw or did not see that morning in order to accurately assess their credibility at trial." (Id. at p. 1588; cf., People v. Warren (1988) 45 Cal.3d 471, 481.) We adhere to Gutierrez's rationale and, under the substantively parallel facts of the present case, we conclude the trial court correctly overruled Richardson's relevance objection to Dameworth's description of the threats he received from Sam Satan.
Richardson raises two additional arguments apparently not raised below. First, he asserts the probative value of the evidence was substantially outweighed by its prejudicial impact, and therefore the court abused its discretion by not excluding the evidence under Evidence Code section 352. However, our review of the proceedings below shows that Richardson objected on relevance grounds, and did not also object under Evidence Code section 352, which is insufficient to preserve the issue for appellate review. (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1130.) He also appears to argue that the court, having admitted the evidence, should have instructed the jury that the threat evidence was admitted for the limited purpose of showing Dameworth's state of mind at the time of his preliminary hearing testimony, and that the absence of the instruction permitted the jury to infer a consciousness of guilt. However, Richardson did not request that instruction, and a trial court has no sua sponte duty to instruct on the limited purposes for which admissible evidence may be considered. (See People v. Collie (1981) 30 Cal.3d 43, 63-64.)
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Analysis of Admission of Pfohl's Testimony
Richardson also contends the court erred by overruling his objections to Pfohl's testimony. There are two distinct components to Pfohl's testimony that require separate consideration: (1) Pfohl's testimony that Dameworth reported Sam Satan had contacted him to talk about "how [he] should testify at the preliminary hearing," and (2) Pfohl's testimony that Dameworth "immediately identified" Richardson as the perpetrator when he saw Richardson just before the start of the preliminary hearing.
A prior statement consistent with a witness's trial testimony is admissible if either (1) a prior inconsistent statement was admitted and the consistent statement predated the inconsistent statement, or (2) an express or implied charge is made that the witness's testimony is recently fabricated or influenced by bias or other improper motive, and the consistent statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen. (People v. Smith (2003) 30 Cal.4th 581, 630.) Under these standards, the decision to admit both aspects of Pfohl's testimony was not an abuse of discretion. (Cf. People v. Martinez (1998) 62 Cal.App.4th 1454, 1459.)
The admission of the first aspect of Pfohl's testimony—Dameworth's report that Sam Satan had contacted him to talk about "how [he] should testify at the preliminary hearing"—was not an abuse of discretion. After Dameworth testified to Sam Satan's threats and how those threats influenced Dameworth to testify at the preliminary hearing and to express uncertainty over his identification at that time, the defense on recross-examination employed his preliminary hearing testimony to undermine that claim, noting that Dameworth testified at the preliminary hearing Sam Satan's contacts did not influence his testimony at the preliminary hearing. Pfohl's testimony that Dameworth reported Sam Satan had contacted him to talk about "how [he] should testify at the preliminary hearing," which predated Dameworth's testimony at the preliminary hearing that Sam Satan did not seek to influence his testimony, was admissible as a prior statement consistent with Dameworth's testimony that Sam Satan did influence how he testified at the preliminary hearing.
The admission of the other aspect of Pfohl's testimony—that Dameworth "immediately identified" Richardson just moments before the start of the preliminary hearing—was not an abuse of discretion for similar reasons. The defense, when cross-examining Dameworth, impeached Dameworth's positive identification of Richardson by introducing his prior inconsistent statements from the preliminary hearing, e.g., that he could not be sure Richardson was one of the intruders. Pfohl's testimony—that Dameworth "immediately identified" Richardson just moments before the start of the preliminary hearing—was a statement consistent with his trial testimony, and was admissible because a prior inconsistent statement was admitted (during the defense cross- examination) and the consistent statement predated the inconsistent statement. We conclude Richardson's claims of evidentiary error are without merit.
C. The Section 654 Claim
Richardson received separate prison terms for his convictions for robbery and assault. He argues the sentences for the assault counts should have been stayed under section 654 because the assaults were merely incidental to and the means for accomplishing the robbery.
Legal Framework
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591), and ensures the defendant's punishment will be commensurate with his or her criminal culpability. (People v. Kramer (2002) 29 Cal.4th 720, 723.) Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) " '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.' [Citations.] On the other hand, if the defendant entertained multiple criminal objectives that were independent and not incidental to each other, he or she 'may be punished for each statutory violation committed in pursuit of each objective' even though the violations were otherwise part of an indivisible course of conduct. [Citation.] ' "The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple." [Citation.] "A defendant's criminal objective is 'determined from all the circumstances . . . .'"'" (People v. Sok (2010) 181 Cal.App.4th 88, 99.)
" '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.' " (People v. Tarris (2009) 180 Cal.App.4th 612, 626.) When the court's ruling on the section 654 issue is challenged on appeal, "'"[w]e must 'view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier of fact could reasonably deduce from the evidence.' " ' " (Tarris, at p. 627.)
Analysis
Richardson argued at the sentencing hearing that execution of the sentence on the assault charges should be stayed under section 654 because the assaults were incidental to accomplishing the robbery. The court rejected this argument, finding the assaults involved separate objectives and activities "above and beyond what may have been necessary to commit [the robbery]. And [the robbery] was something that [Richardson] may have gone in with the intent to have committed but he went above and beyond that when he committed these assaults."
There is substantial evidence to support the trial court's determination that section 654 does not bar multiple punishments under the facts presented at trial. Janine testified that when the invaders rushed inside the house, she was immediately struck by a shovel and knocked to the floor. There was no evidence this blow was necessary to overcome her resistance, or that the blow was preceded by a demand for her valuables, and the assault on Janine continued thereafter while she was on her hands and knees because one of the robbers held her down and forced her face onto the floor. Although one of the robbers did ask Janine for the location of the safe while holding her down, Janine testified she told the robber there was no safe. Finally, Janine testified that, as the intruders were leaving (having apparently completed the robbery), the person who had been holding her down kicked her in the face, causing severe head trauma. A trier of fact could well have concluded that this last gratuitous blow against Janine was not incidental to accomplishing the theft of the property. (See People v. Nguyen (1988) 204 Cal.App.3d 181, 190 ["[G]ratuitous violence against a helpless and unresisting victim . . . has traditionally been viewed as not 'incidental' to robbery for purposes of . . . section 654"].)
Similarly, there was some evidence from which a trier of fact could have concluded the assault on Dameworth involved more force than was incidental to accomplishing the robbery. When Dameworth went to investigate the sound of the intruders breaking in, the robbers rushed Dameworth, struck him in the head with a shovel, and continued to beat him with fists and weapons while he was lying on the floor. There was no demand for property to which Dameworth had demurred, and he was not armed with any weapons posing any threat to the robbers. Moreover, when he tried to defend himself, the robbers dragged Dameworth outside and down the steps toward the laundry room, and one of the robbers stated, "Throw him in the laundry room and finish him," which he understood meant they intended to kill him. This evidence would permit a trier of fact to conclude that, at some point, the robbers entertained the additional objective of killing Dameworth. As explained in People v. Nguyen, supra, 204 Cal.App.3d 181, 191: "[A]t 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 a 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." Because there is some evidence to support the conclusion that neither the savagery of the initial assault nor the expressed intention to "finish him" were reasonably necessary to accomplish the theft of property, but instead revealed "a different and a more sinister goal than mere successful commission of the [robbery]" (ibid.), we cannot conclude the trial court acted beyond the boundaries of its broad discretion when it rejected Richardson's section 654 argument.
D. The Enhancement Claim
Background
The court, after finding true the allegations that Richardson had two prior serious felony convictions and two prior prison terms, and after finding he had suffered two prior strike convictions but exercising its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to dismiss one of the prior strike allegations, sentenced Richardson to a total term of 33 years. The court selected count 1 to be the principal term, and sentenced Richardson to the upper term of 18 years (nine years doubled because of the prior strike conviction), and to subordinate terms for counts 3 and 4. The court also imposed a consecutive 10-year term for the two prior serious felony convictions, plus an additional consecutive one-year term for one of the prior prison convictions. The court imposed but stayed execution of the one-year term for the other prior prison conviction. Richardson argues the court should have stricken the latter one-year term for the other prior prison conviction, and that imposing the term but staying its execution was erroneous.
Analysis
In People v. Jones (1993) 5 Cal.4th 1142, the court examined a sentence in which the trial court imposed and then executed a five-year prior serious felony enhancement under section 667, subdivision (a), and a one-year prior prison term enhancement under section 667.5, subdivision (b). (Jones, at p. 1145.) Our Supreme Court held that "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (Id. at p. 1150.) The court remanded "with directions to strike the one-year enhancement." (Id. at p. 1153.)
However, as another division of this court pointed out in People v. Lopez (2004) 119 Cal.App.4th 355: "Jones . . . did not actually discuss whether striking the unused enhancement finding was the appropriate remedy. As the Supreme Court has often reminded us, 'cases are not authority for propositions not considered. [Citations.]' [Citation.] Moreover, it is not at all clear whether the court intended to strike the enhancement finding or the punishment for the enhancement. Since the trial court had sentenced the defendant to a separate and consecutive term for each enhancement, certainly the court had to do something to eliminate the excess punishment. Thus, Jones is not authority for the proposition that an unused enhancement finding must be stricken." (Id. at p. 364.) The Lopez court then turned to rule 4.447 of the California Rules of Court for guidance on the appropriate remedy, which states in part:
"No finding of an enhancement may be stricken or dismissed because imposition of the term either is 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 must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit."Relying on that rule, the Lopez court concluded "[t]he correct procedure would have been to impose a sentence on the barred enhancement, but then stay execution of that sentence." (People v. Lopez, supra, 119 Cal.App.4th at p. 364.) We agree with Lopez, and the conclusion reached in Lopez appears consonant with the subsequent decision of the Supreme Court in People v. Gonzalez (2008) 43 Cal.4th 1118. Gonzalez involved multiple firearm enhancements, only one of which could be "imposed" under the statutory scheme. The Supreme Court held that "after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment [as required by the statute], the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be stayed or stricken." (Gonzalez, at p. 1122.) In reaching that conclusion, the Supreme Court reversed the decision of the appellate court, which had concluded the remaining firearm enhancements, as well as their findings, had to be stricken rather than imposed and then stayed. (Id. at p. 1124.) The appellate court had reasoned that because only the enhancement with the longest term of imprisonment may be "imposed" under section 12022.53, it was error to impose and then stay the remaining enhancements, and instead the enhancements should have been stricken. The Supreme Court concluded this reasoning failed to understand the meaning of the word "impose" as it applies to sentence enhancements: "[I]t is important to understand that the word 'impose' applies to enhancements that are 'imposed and then executed' as well as those that are 'imposed and then stayed. However, as a practical matter, the word "impose" is often employed as shorthand to refer to the first situation, while the word "stay" often refers to the latter.' '' (Gonzalez, at p. 1125.) The appellate court had erroneously "interpreted the word 'imposed' in that portion of subdivision (f) [of section 12022.53] as encompassing both meanings of 'impose,' namely, impose and then execute, as well as impose and then stay." (Id. at p. 1126.) Instead, as the Supreme Court explained, subdivision (f) "directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements." (Gonzalez, at p. 1127.)
In this case, we agree that "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (Jones, supra, 5 Cal.4th at p. 1150.) Accordingly, the trial court must impose and then execute a five-year enhancement for the prior serious felony conviction, and may not impose and then execute a one-year enhancement for the prior prison term served in connection with that conviction. However, because the trial court is barred from striking or dismissing the enhancement finding (Cal. Rules of Court, rule 4.447), we agree with Lopez that the appropriate procedure is to impose and then execute the five-year enhancement under section 667, subdivision (a), and then to impose and then stay execution of the one-year enhancement under section 667.5, subdivision (b). (Accord, People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9.) The trial court adhered to this approach, and we therefore find no error.
E. The Cumulative Error Claim.
Richardson contends the cumulative effect of the claimed errors denied him a fair trial even if no single error standing alone necessitates a reversal of the judgment. Because we have concluded there were no errors, there is no cumulative effect of trial errors.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR
BENKE, Acting P. J.
AARON, J.