Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Super.Ct.No. RIF113979
Robert J. Waters, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.
MILLER, J.
Defendant Julian Tafolla drove up to Leon Culpepper (Culpepper), a high school teacher, and “Bo-bo,” Culpepper’s former student. While holding a nine-millimeter semiautomatic gun pointed at the ceiling of his car, defendant asked them, “You guys gang-bang?” He then drove off, and Culpepper reported the incident to authorities. Defendant was subsequently arrested. A search warrant executed at his residence resulted in the police discovering a nine-millimeter bullet in his bedroom.
A jury found defendant guilty of being a felon in possession of a gun, found true a gang enhancement allegation of possessing the gun for the benefit of a criminal street gang, and found him guilty of being a felon being in possession of ammunition. (Pen. Code, §§ 12021 subd. (a)(1); 186.22, subd. (b); 12316, subd. (b)(1).) Defendant was found not guilty of the criminal offense of participating in a criminal street gang and found it not true that defendant possessed ammunition for the benefit of a street gang. (§§ 186.22, subds. (a) & (b).)
All further statutory references will be to the Penal Code unless indicated.
On appeal, defendant asserts numerous errors. He claims he was denied his right to have his retained counsel of choice. He also maintains his trial counsel rendered ineffective assistance in several instances: (1) when she conceded the possession charges in closing argument, (2) when she failed to object to his wife’s testimony on marital privilege grounds, and (3) when she failed to object to his wife’s testimony and the searching officer’s testimony on speculation grounds. He also contends that the trial court committed several sentencing errors: (1) erroneously imposed the upper term for Count 1 and the gang enhancement, (2) violated the “dual use” prohibition when it imposed concurrent sentences on counts 1 and 3, and (3) wrongfully imposed a habitual criminal enhancement.
We conclude that the trial court erred in imposing the upper term and remand the matter for further proceedings in accordance with Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).We find no other errors and thus in all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On November 4, 2003, around 10:00 a.m., Culpepper, a high school campus supervisor, went to check on his mother who lived at a nearby residence. He saw his former student “Bo-bo” walking towards him. Before Bo-bo reached Culpepper’s car, Culpepper saw a gray Honda pull alongside Bo-bo, stop, and within a few seconds drive off. Bo-bo walked up to Culpepper and said, “Hey, Pep, did you see that?” While they were talking, the gray Honda drove up alongside the both of them and stopped in the roadway. Defendant, the lone occupant, asked them if they “gang-bang[ed].” He held up a black semiautomatic handgun with his right hand and pointed it toward the roof of the car, while keeping his left hand on the steering wheel. Defendant told them, “This is Eastside Riva” and drove off. Culpepper wrote down the license plate number as the car drove away.
Culpepper contacted Sergeant Mark Rossi (Rossi), whom he knew from work. Rossi ran the license plate and found that the Honda was registered to defendant.
On November 8, 2003, a Colton police officer initiated a traffic stop of defendant’s Honda. Defendant was in the car; found in his possession was a loaded semiautomatic nine-millimeter handgun containing seven live nine-millimeter Luger rounds.
After execution of a search warrant, on November 13, 2003, a search of defendant’s bedroom yielded a nine-millimeter Luger bullet. When Rossi asked Josefina Guerrero Tafolla if the bullet was hers, she replied it wasn’t hers, that it must have been defendant’s. She told Rossi that no one but her, defendant, and her six-month-old child shared the bedroom. However, at trial, Josefina testified that the bullet “didn’t belong to anybody in particular there. . . . It was just there in the room.” She denied that she told the officer that the bullet belonged to defendant.
Defendant’s girlfriend at the time, currently his wife.
DISCUSSION
A. Denying defendant’s motion to relieve retained counsel on the first day of trial was not a violation of defendant’s Sixth Amendment right to counsel.
Defendant contends that his right to counsel of choice was violated when the trial court denied his request for newly retained counsel to replace his current retained counsel for trial.
Defendant proceeded to trial with Ms. Lockhart, his retained counsel, who secured acquittals on count 2 (participation in a criminal street gang), and a not true finding on the gang enhancement on count 3 (the possession of ammunition by a felon).
A criminal defendant has a constitutional right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Gideon v. Wainwright (1963) 372 U.S. 335; §§ 686, 859, 987.) He has a due process right to appear and defend with retained counsel of his or her choice. (People v. Lara (2001) 86 Cal.App.4th 139, 152.) A criminal defendant has a constitutional and statutory right to counsel of his choice, and his interest in discharging a retained attorney is included within the right to counsel of one’s choice. (Ibid.)
In situations involving retained counsel, a defendant may discharge his attorney at any time, with or without cause. (People v. Lara, supra, 86 Cal.App.4th at p. 152) However, a defendant does not have an absolute right to discharge retained counsel. In its discretion, a trial court may deny such a motion if it is not timely, i.e., if it will disrupt the orderly processes of justice. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) A continuance may be denied a defendant when he arbitrarily chooses to substitute counsel at the time of trial. (People v. Courts (1985) 37 Cal.3d 784, 790-791.) “‘It is manifest that the courts cannot in every case await the convenience of some attorney before they can function. Reduced to its lowest terms this would allow a popular attorney to have the courts marking time to serve his convenience.’” (People v. Crovendi (1966) 65 Cal.2d 199, 207, fn. 4.)
The record in this case supports the trial court’s ruling. The record shows the public defender was relieved and Ms. Lockhart represented defendant in May 2004. After eight continuances, Ms. Lockhart represented defendant at the preliminary hearing held on October 29, 2004, and November 19, 2004. In February 2005, she represented him at his arraignment on the information and conducted discovery. There were several continuances between April 8, 2005, and July 29, 2005. A jury trial date was set for July 29, 2005. On that date, Mr. Eckhart requested that the court allow him to substitute in and to relieve Ms. Lockhart. The court refused to allow Mr. Eckhart to appear. On the last day of the trial trailing period, the matter was sent out for trial. On the first day of trial, Ms. Lockhart informed the court that she had been fired by defendant and renewed Mr. Eckhart’s motion to substitute in. Mr. Eckhart did not appear at that hearing as he was currently in trial and would remain in that other trial for another two days. Ms. Lockhart was present and indicated her readiness for trial and the prosecutor indicated its readiness to proceed. The trial court ruled that unless another attorney was ready to step in and try the case at that time, it would affirm the master calendar trial judge’s decision to bar Mr. Eckhart’s appearance in the matter.
On this record, the court did not abuse its discretion in denying defendant’s request to change counsel on the first day of trial minutes before pretrial motions were to be heard. Although Mr. Eckhart’s substitution was mentioned on July 29, he was not available to try the matter on the date the case was called for trial in Riverside as he was currently engaged in a trial in Indio and would not be available until two days later. Defendant’s motion was untimely and would certainly have disrupted the orderly processes of justice.
B. Defense counsel did not render ineffective assistance by conceding the possession charges.
Defendant argues he did not receive effective assistance of counsel because his trial attorney failed to provide him with reasonably competent advocacy. Defense counsel withdrew a number of crucial defenses by conceding in closing argument that defendant possessed a gun and ammunition. He claims that not only did defense counsel’s concession violate his constitutional rights, she also violated section 1018 which requires a defendant to personally enter a guilty plea.
In order to establish a claim of ineffective assistance of counsel, a defendant must “demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668, 694.) In evaluating counsel’s actions at trial, “A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]” (People v. Dennis, supra, at p. 451.)
We conclude that defense counsel did not render ineffective assistance because counsel made a tactical decision that was successful. She was able to obtain a not guilty verdict on count 2—the substantive crime of participating in a criminal street gang and a finding that the gang enhancement for count 3 was not committed.
With respect to the count for possession of a firearm, defense counsel had proven that Culpepper had not checked out of school, he gave Rossi a different version of the events, and was biased against defendant. Regarding the possession of ammunition count, there was evidence that other people lived in the residence and Josefina’s statement to police was inadmissible. It was inherently reasonable for counsel to admit guilt on the possession counts because the evidence of guilt was overwhelming. Culpepper, who has known defendant for years, identified defendant in the car. Culpepper, a former rangemaster who worked with guns, identified the nine-millimeter semiautomatic weapon he saw defendant holding. Culpepper wrote down the license plate of the Honda defendant was driving as “4MNX123.” That same day, Culpepper informed Rossi of the incident. Rossi ran the license plate and discovered the car was registered to defendant. At a traffic stop four days later, defendant was stopped driving the same gray Honda with the same license plate number. In the vehicle, police located a loaded nine-millimeter semiautomatic that contained nine-millimeter Luger rounds, the same type of bullet found in defendant’s bedroom. Based on this evidence, “[i]t [was] within the permissible range of tactics for defense counsel to candidly recognize the weaknesses in the defense in the closing argument.” (People v. Williams (1997) 16 Cal.4th 153, 264.)
With respect to defendant’s claim that his counsel’s concession was tantamount to entering a guilty plea without his consent, defendant claim is meritless. It was unnecessary for the trial court to obtain an on-the-record, personal waiver from the defendant on the concession to counts 1 and 3. (People v. Frierson (1985) 39 Cal.3d 803, 818, fn. 8.) The law is clear that counsel’s decision not to contest guilt on one or more charges at trial is not tantamount to a guilty plea. (People v. Griffin (1988) 46 Cal.3d 1011, 1029.)
C. Counsel’s failure to object to defendant’s wife’s testimony does not constitute ineffective assistance.
Defendant contends that trial counsel rendered ineffective assistance because she failed to object to the prosecution’s calling Josefina, his wife, who did not waive the marital privilege not to testify against her spouse. He asserts there was no showing that Josefina consented to be a witness or that she was aware that the privilege existed. He maintains that the prosecution did not meet its burden to prove that there was an exception to the marital privilege. Finally, he claims that Josefina’s statement to the searching officer that the bullet didn’t belong to her, that it must be her husband’s, was inadmissible hearsay under Crawford v. Washington (2004) 541 U.S. 36, 52 (Crawford).
With respect to defendant’s spousal privilege claim, we conclude that defense counsel did not render ineffective assistance in failing to raise it because it was meritless.
A married person, whose spouse is a party to a proceeding, has two privileges—not to be called as an adverse party witness and not to testify against his or her spouse. (Evid. Code, §§ 970, 971; Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 970, p. 258.) But the marital privilege does not apply in a criminal proceeding when the married person acquired the knowledge of a criminal act prior to the marriage and knew of the arrest or charges before the marriage. (Evid. Code. § 972, subd. (f).)
The crime occurred on November 4, 2003. Defendant was arrested after the gun used in the incident was found during a traffic stop on November 8, 2003. Officers conducted a search of defendant’s and Josefina’s bedroom on November 13, 2003. Defendant married Josefina on February 29, 2004. The trial took place from August 2 through August 9, 2005.
Defendant and Josefina were not married at the time the crimes were committed. The record strongly implies that Josefina was aware that defendant was arrested on November 8, 2003. She testified she did not know what defendant was doing on November 8 between 7:00 and 8:00 p.m. She said that defendant had not resided with her since November 8 and that he was not living there with her on the November 13 search date.
Moreover, a spouse has a privilege to refuse to disclose and to prevent his or her spouse from disclosing a communication if the spouse claims the privilege and the communication was made in confidence between the husband and wife while they were married. (Evid. Code, § 980.) Josefina’s statement that the bullet didn’t belong to her, that it must be her husband’s, is not a disclosure revealing a confidential communication between a husband and wife made during their marriage for two reasons.
First, Josefina and defendant were not married at the time of the statement. The spousal privilege does not apply to testimony regarding knowledge acquired prior to marriage concerning a criminal act that occurred prior to the marriage when the witness was aware prior to marriage that her spouse had been arrested or formally charged with that criminal act. On this record, Josefina had no spousal privilege with regard to the subject matter of her testimony. (Evid. Code. § 972, subd. (f).) Defense counsel was not required to make meritless objections. (People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Ochoa (1998) 19 Cal.4th 353, 432.)
Second, Josefina’s statement upon viewing the bullet was an observation of what was not her personal property. It was not a disclosure of a confidential marital communication: an observation is not a communication.
Therefore, we find that the marital privilege and the marital communication privilege do not apply. Defense counsel’s failure to assert a spousal privilege comported with the law, and hence was not ineffective assistance.
With respect to defendant’s Crawford claim, we conclude that Josefina’s statement to the police was admissible. Thus, counsel’s failure to object on Crawford grounds was not ineffective assistance.
Crawford held that out-of-court testimonial statements are admissible only when the witness is unavailable and there was a prior opportunity to cross-examine the witness. (Crawford v. Washington, supra,541 U.S. at p. 59; People v. Cervantes (2004) 118 Cal.App.4th 162, 172.) Statements made to the police during investigations are testimonial. (Crawford, at p. 68; People v. Cervantes,at p. 172.) Because Josefina made her statement during a police search, the statement is testimonial.
However, just because a statement is an out-of-court testimonial, does not, a fortiori, mean that it is inadmissible. Crawford reiterated that when a declarant appears for cross-examination at trial, the “Confrontation Clause” (U.S. Const., 6th Amend.) places no constraints on the use of his prior testimonial statements. (Crawford v. Washington, supra, 541 U.S. at p. 59, fn 9.) Thus Josefina’s prior statement that the bullet didn’t belong to her, that it must be her husband’s, could be admitted because Josefina was available at trial and subject to cross-examination. Crawford does not affect the analysis for admission of out-of-court statements where the declarant testifies at trial.
D. Defense counsel did object to defendant’s wife’s statement on speculation grounds.
Defendant argues that his trial counsel rendered ineffective assistance for failing to object to Josefina’s statement that “[the bullet] must have been . . . her husband[’s].”
Our view of the record does not comport with defendant’s view of the record as reflected in his brief. Defense counsel did object on grounds of speculation to Josefina’s statement. The prosecutor made an offer of proof that Josefina told the searching officer, that the bullet “was not hers and believed that the bullet must belong to [defendant] since no one else shares the room with them.” Counsel believed that parts of Josefina’s statement, “‘It’s not my bullet,’” and “‘We don’t share the room with anybody else’” were admissible, but the part where she said, “I believe that it belongs to [defendant]” was pure speculation and irrelevant, and hence, objectionable.
The trial court overruled defense counsel’s objection and allowed the prosecution to admit the statement through Josefina’s testimony. Counsel did not have to object again to Josefina’s testimony on the stand because the trial court had already rendered its ruling. Consequently, there was no ineffective assistance of counsel.
Contrary to defendant’s claims, Josefina’s statement that the bullet must be her husband’s was not mere speculation, but instead was a permissible inference. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action. (Evid. Code, § 600, subd. (b).) It was logical to infer the bullet belonged to defendant, and was thus admissible to prove the possession of ammunition by a felon charge.
Josefina testified that she shared the bedroom with her husband and that the bullet was not hers. However, on the stand she claimed that the bullet “didn’t belong to anybody in particular there. It was just . . . there in the room.” In rebuttal, the officer who conducted the search testified that he confronted Josefina about the bullet he found in her bedroom. She told him that the bullet was not hers and that no else shared their bedroom except their six-month-old child.
As the prosecution noted in its brief, common experience shows that if two people share a room, and one person does not own a particular object in the room, one can reasonably deduce that the property belongs to the other person.
E. Sentencing on count 1 should be imposed in accordance with Cunningham.
Defendant contends that the trial court denied him his right to a jury trial on the aggravating factors when it sentenced him to the upper term on count 1 and the upper term on the gang enhancement.
The jury found defendant guilty on count 1, a felon in possession of a firearm (§12021, subd. (a)(1).) The sentencing range for that crime is 16 months for the low term or two years for the midterm or three years for the upper term. The trial court imposed the upper term of three years because it found the following facts in aggravation: defendant was armed with a weapon (Cal. Rules of Court, rule 4.421(a)(2)), the manner in which the crime was carried out indicated planning and sophistication (Cal. Rules of Court, rule 4.421(a)(8)), and he engaged in violent conduct that indicated a serious danger to society. (Cal. Rules of Court, rule 4.421(b)(1).) It then doubled the upper term of three years for a total of six years on count 1.
Pursuant to section 667, subdivisions (c) and (e).
The United States Supreme Court recently held that the statutory maximum that can be imposed is the middle term because that is the sentence that can be imposed based on a jury’s verdict alone. (Cunningham, supra, 127 S.Ct. at p. 868.) The trial court’s finding of sophisticated planning and danger to society were not facts found by the jury’s verdict. Nor can the trial court’s finding that defendant had a gun be used to impose the upper term because that is the essence of the felon in possession of a firearm charge. (People v. Coronado (1995) 12 Cal.4th 145, 159, fn. 10.)
Therefore, the trial court erred in imposing the upper term. We remand the matter to the trial court for further proceedings in accordance with Cunningham.
1. Gang Enhancement Allegation
With respect to the gang enhancement allegation on count 1, the sentencing range for that crime is two years for the low term or three years midterm or four years for the upper term. The trial court selected the upper term of four years and doubled it to eight years. It found that the aggravating circumstances supporting imposition of the upper term were defendant’s prior convictions and being on probation or parole at the time the crime was committed.
Also pursuant to section 667, subdivisions (c) and (e).
“[T]he finding of even one factor in aggravation is sufficient to justify the upper term. [Citation.]” (People v. Steele (2000) 83 Cal.App.4th 212, 226.)
The fact that defendant suffered a prior conviction is sufficient to support the imposition of the maximum penalty in a sentencing range. (Jones v. United States (1999) 526 U.S. 227, 248-249.) “‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence’[] [citation].” Increasing a defendant’s penalty based on a prior conviction does not need to be submitted to a jury. (Cunningham, supra, 127 S.Ct. at p. 868, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Consequently, the trial court may sentence defendant to the upper term for the gang enhancement allegation in count 1 because he suffered prior arson and false claim convictions.
F. Concurrent sentences on counts 1 and 3 do not violate section 654.
Defendant claims that the trial court violated section 654’s ban for dual use of facts when it imposed concurrent sentences for the charges of being a felon in possession of a firearm and being a felon in possession of ammunition. Citing People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), he argues that any sentence on the ammunition possession charge should have been stayed, because he had only one objective—to possess ammunition to have a loaded firearm. We find that the trial court correctly imposed concurrent sentences on his convictions for gun possession and possession of ammunition.
The proper remedy for violating section 654’s dual use prohibition is staying the concurrent term instead of imposing it. (People v. Dominguez (1995) 38 Cal.App.4th 410, 425-426; People v. Miller (1977) 18 Cal.3d 873, 887.)
Section 654, subdivision (a), prohibits multiple sentences for the “same act or omission.” It “‘“precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.’ [Citations.]”’” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) “[W]hether defendant harbored a ‘single intent’ within the meaning of section 654 is generally a factual one, [and] the applicability of the statute to conceded facts is a question of law.” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
In this instance, the possession of ammunition charge was based upon a bullet found in defendant’s bedroom on November 13, 2003. The record does not reveal whether the firearm he possessed on November 4, 2003, was loaded. The bullet found in defendant’s bedroom was not loaded into a firearm on the date of the search. Therefore, possession of the bullet was a separate act from possession of the gun—the crimes occurred in two separate places on two separate dates.
Lopez is distinguishable from this case because the defendant in Lopez had a magazine loaded inside the gun with a bullet loaded into the chamber. Here, the bullet was lying outside the gun on a different date. Thus, there is no danger of punishing the defendant for “‘pars[ing] the objectives too finely’” for one indivisible course of conduct. (Lopez, supra,119 Cal.App.4th at p. 138.)
G. The trial court properly imposed a habitual criminal enhancement.
Defendant contends that he could not be sentenced to a five-year enhancement for possession of a firearm with a gang enhancement. He asserts People v. Briceno (2004) 34 Cal.4th 451 (Briceno) bars the gang enhancement (§ 186, subd. (b)(1)) from being used to make the possession charge a “serious” felony in his current case, and can only be used if a future offense is charged and then this conviction may be used as a prior serious conviction.
Section 667, subdivision (a)(1) provides that “any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” For purposes of section 667, subdivision (a)(4), “‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.” Section 1192.7, subdivision (c)(28), passed by the electorate in Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, includes among the list of serious felonies “any felony offense, which would also constitute a felony violation of Section 186.22.”
In Briceno, supra, the court distinguished between current and former offenses enhanced by gang findings in holding that it would be improper to sentence a defendant to a five-year term for the gang enhancement. The court, however, did not state it also would be improper to impose a prior serious felony enhancement based on the same conduct. Instead, the court stated, “while it is proper to define any felony committed for the benefit of a criminal street gang as a serious felony under section 1192.7(c)(28), it is improper to use the same gang-related conduct again to obtain an additional five-year sentence under section 186.22(b)(1)(B).” (Briceno, supra,34 Cal.4th at p. 465.) Therefore, Briceno does not support defendant’s argument that the punishment imposed for the prior serious felony under section 667, subdivision (a)(1), was unlawful.
Two recent cases People v. Bautista (2005) 125 Cal.App.4th 646 (Bautista) and People v. Martinez (2005) 132 Cal.App.4th 531 (Martinez) support the trial court’s imposition of a prior serious felony enhancement. In Bautista, the Fifth District Court of Appeal recognized that under Briceno, a finding that a section 186.22, subdivision (b)(1) enhancement is true is “tantamount to a finding that the offense . . . [is] a serious felony pursuant to section 1192.7, subdivision (c)(28),” which, in turn, forms the basis of a five-year enhancement under section 667, subdivision (a). (Bautista, supra,at p. 657.) In Martinez, the same court explained its holding in Bautista: “As we recognized in Bautista, a defendant cannot properly be punished for engaging in conduct that supports a gang enhancement and then, solely because that conduct makes the felony ‘serious,’ also punish him or her under subdivision (b)(1)(B) of the gang enhancement. Subdivision (b)(1)(B) of section 186.22, thus, can apply only where the felony is serious for some reason other than the conduct that brings subdivision (b)(1) into play. Otherwise . . . section 186.22, subdivision (b)(1)(A) would be superfluous. [Citation.] This has nothing to do, however, with the question whether appellant can be punished under both section 186.22, subdivision (b)(1)(A), and section 667, subdivision (a). Under Coronado [(1995) 12 Cal.4th 145] and Bautista, he can.” (Martinez, supra, at pp. 536-537.)
Based on the above, we hold that imposing a prior serious felony enhancement would not constitute impermissible dual use of gang-related conduct. Here, the gang-related conduct was used to define the present offense as a “serious felony” in order to impose additional punishment for the prior offense. A gang-related enhancement goes to the nature of the offense and increases punishment based on the circumstances accompanying the crime. In contrast, “prior offense enhancements go to the nature of the offender, punishing him . . . for the habitual commission of crimes.” (People v. Kane (1985) 165 Cal.App.3d 480, 487.) Therefore, the trial court properly imposed the prior serious felony enhancement.
DISPOSITION
The matter is remanded to the trial court for further proceedings consistent with Cunningham, supra, and with the views expressed in this opinion. In all other respects, the judgment is affirmed.
We concur: McKINSTER, Acting P. J., RICHLI, J.