Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA044143, Martin Larry Herscovitz, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Glenn Terrell appeals from the judgment entered following his conviction by jury on count 1 – first degree murder (Pen. Code, § 187) with the special circumstance that he committed the offense during a robbery (Pen. Code, § 190.2, subd. (a)(17)(A)), count 2 – willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, 187), and count 3 – first degree robbery (Pen. Code, § 211), with findings as to each offense that appellant personally used a dangerous or deadly weapon (Pen. Code, § 12022, subd. (b)(1)) and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). The court sentenced him to prison on count 1 to life without the possibility of parole for the murder, on count 2 to a consecutive term of life with the possibility of parole for the attempted murder, and on count 3 to a concurrent term of four years for robbery, plus, as to each count, four years for the enhancements. Appellant claims the trial court committed trial and sentencing errors. We will modify the judgment and, as modified, affirm it with directions.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on October 4, 2003, Enrique Briseno lived with his mother Dora Hernandez in a North Hollywood apartment. Briseno previously had sold marijuana to appellant, and had given marijuana to Philip Lozano. About 9:30 a.m. on the above date, appellant and Lozano came to the apartment unannounced and told Briseno that they were there to buy a pound of marijuana. It was unusual for appellant and Lozano to come to the apartment unannounced. Briseno told them he did not have a pound of marijuana to sell but invited them inside to smoke marijuana. The three entered Briseno’s room and smoked marijuana.
Briseno testified at the preliminary hearing that appellant became aggravated when Briseno told him that Briseno did not have marijuana to sell.
After a few minutes, appellant sprayed mace in Briseno’s face, punched him in the nose, breaking it, and repeatedly stabbed him with an ice pick. Briseno was temporarily paralyzed as a result of the stabbing. When appellant attacked Briseno with the ice pick, Lozano asked appellant what was appellant doing, and told appellant that that was enough. A piece of the ice pick was still in Briseno’s back at the time of the trial.
While appellant was attacking Briseno, Hernandez entered the room and told appellant and Lozano to stop what they were doing. Appellant approached Hernandez, Briseno told her to run, and she fled to the living room with appellant and Lozano in pursuit. After appellant and Lozano left the room, Briseno heard appellant ask Hernandez for money. Briseno, still in his room, heard sounds of a struggle and his mother’s screams. Briseno heard Lozano indicate to appellant that the two should go.
While the struggle continued, Lozano reentered Briseno’s room and asked Briseno for money. Lozano said to give him something so it would stop. Briseno falsely denied having money. Lozano searched him but failed to find the $250 that Briseno had in one of his pants pockets. Briseno had about two pounds of marijuana in the apartment. There was also a three-ounce bag of high-grade marijuana valued at $1,000 in plain view in Briseno’s room. Lozano took the bag of marijuana and left the room.
Appellant reentered Briseno’s room, at which time the sounds of the struggle with Hernandez stopped. Briseno was in his room and was still paralyzed as a result of the earlier stabbing. After appellant reentered Briseno’s room, he slashed Briseno’s throat with an unknown weapon, then left the room.
Appellant and Lozano eventually left the apartment. However, before appellant left, he had repeatedly stabbed Hernandez with a knife and a kitchen fork. One of the stab wounds punctured her lung. The lung injury was the sole fatal injury, and Hernandez was dead within about 15 to 30 minutes after appellant inflicted that wound. A deputy medical examiner removed a knife from Hernandez’s head during her autopsy.
The injury which appellant inflicted to Briseno’s throat when appellant slashed it left a scar which was still visible at the time of the trial. At trial, Briseno described his stab wounds and the prosecutor asked him did appellant merely stab Briseno or do something else. Briseno replied that he was sliced in two places and had a couple of holes in his stomach. The court observed that Briseno had a scar running around his neck, from below his right ear to almost the midline at the base of the neck. After Briseno later testified that appellant slashed his throat, the prosecutor asked if that was the scar that Briseno earlier had shown, and Briseno replied yes.
On October 4, 2003, police went to appellant’s Lancaster residence after receiving information that appellant and Lozano were there. Police knocked on the door, appellant exited, and police ordered appellant to stop. Appellant went back inside the residence where police detained him. Police found in appellant’s bedroom, inter alia, a handgun and the three-ounce bag of marijuana which Lozano had taken.
On October 5, 2003, Los Angeles Police Detective Andres Alegria interviewed Lozano. Lozano told Alegria that Lozano, appellant, and two other persons went to Briseno’s apartment. Lozano initially blamed the two other persons for the crime but later admitted to it. Based on Lozano’s statements, Alegria understood that Briseno had a knife on him during the incident. Appellant presented no defense witnesses.
CONTENTIONS
Appellant claims (1) there was no evidence presented to his jury that a gun was left in the car’s trunk; therefore, the prosecutor committed misconduct by commenting to the jury during closing argument that a gun was left in the trunk, (2) the trial court erred by receiving testimony from Briseno about a “vibe” that emanated from appellant and Lozano, (3) imposition of a Penal Code section 1202.45 parole revocation fine was error, (4) imposition of a Penal Code section 12022.7, subdivision (a), enhancement as to count 1 was error, (5) imposition of the three Penal Code section 12022.7, subdivision (a), enhancements was error, and (6) imposition of the two Penal Code section 12022, subdivision (b)(1), enhancements as to counts 2 and 3, respectively, was error.
DISCUSSION
1. No Prejudicial Prosecutorial Misconduct Occurred When the Prosecutor Commented that A Gun Was In the Trunk of the Car in Which Appellant Arrived at the Scene.
As discussed below, appellant argues (1) his defense was that he committed the attacks based on anger and not intent to rob; therefore, he did not rob Briseno or commit a felony murder (based on robbery) which could support the first degree and special circumstance findings as to the murder conviction, (2) although evidence was presented that appellant had a gun at home, the absence of evidence that he brought it to Briseno’s apartment supported appellant’s defense, therefore (3) the prosecutor’s erroneous comment during closing argument that a gun was in the car’s trunk was prejudicial to that defense.
a. Pertinent Facts.
Appellant and Lozano were jointly tried with separate juries. The Lozano jury heard a taped statement by Lozano to police that appellant had brought his gun when he and Lozano arrived by car at Briseno’s apartment, but that appellant had left the gun in the car’s trunk before he and Lozano entered the apartment. Appellant’s jury did not hear this tape or evidence that appellant brought a gun or left it in the car’s trunk.
During argument to his jury, appellant denied that he intended to rob Briseno. Appellant argued that if he had intended to rob Briseno, appellant would have confronted Briseno with appellant’s gun and not merely with a can of mace and an ice pick.
During rebuttal, the prosecutor argued, inter alia, as follows. Appellant committed a surprise assault and planned robbery on Briseno. Appellant arrived with Lozano because Lozano and Briseno were good friends. This perhaps explained why the gun was in the trunk, why it was not brought with them, and why the attack had to be a surprise.
Appellant objected that the prosecutor had misstated the evidence when arguing that the gun was left in the car, because no such evidence had been presented. The court sustained the objection and asked that all comments be limited to the evidence produced or to reasonable inferences therefrom.
The prosecutor then argued, inter alia, as follows. Whatever happened to the gun, appellant had argued to the jury that the gun had not been brought to the scene. The evidence was that no gun had been used during the incident.
During the final charge to the jury, the court instructed, inter alia, that the jury must decide what the facts were based only on the evidence presented in this trial (CALCRIM Nos. 200 & 222), and neither what the parties’ counsel said, nor closing arguments, were evidence (CALCRIM No. 222). We will present additional facts where pertinent below.
b. Analysis.
Appellant claims that the prosecutor, by commenting to the jury that the gun was left in the trunk, committed misconduct warranting reversal of appellant’s robbery conviction and the first degree and special circumstance findings as to his murder conviction. He argues such reversal is required because the comment prejudiced the jury on the issue of whether he had intent to rob. The claim is unavailing. Appellant failed to object on the ground of prosecutorial misconduct and failed to request a jury admonition with respect to the prosecutor’s comments, which would have cured any harm. Appellant has waived the prosecutorial misconduct issue on appeal. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Clark (1993) 5 Cal.4th 950, 1016; People v. Mincey (1992) 2 Cal.4th 408, 471.)
We reject any concession by respondent that no waiver of the prosecutorial misconduct issue occurred.
As to the merits, in People v. Hill (1998) 17 Cal.4th 800 (Hill), our Supreme Court stated, “ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation.]” (Id. at p. 819.) A showing of prosecutorial bad faith is not required to show prosecutorial misconduct. (Id. at pp. 822-823.)
The present case does not reflect an egregious pattern of conduct; therefore, no misconduct violative of appellant’s right to due process occurred. However, respondent concedes the prosecutor’s challenged comments constituted argument on facts not introduced. A prosecutor commits misconduct by referring to facts not in evidence. (Hill, supra, 17 Cal.4th at pp. 827-828.) The important point here is that the alleged fact that the gun was left in the car’s trunk was not part of the evidence introduced to appellant’s jury. Whether the alleged fact was part of the evidence introduced to another jury, that of Lozano or anyone else, is arguably irrelevant to the issue of whether misconduct occurred.
Assuming without deciding that prosecutorial misconduct occurred, we nonetheless conclude that there is no need to reverse the judgment. The jury heard the court sustain appellant’s objection that the prosecutor misstated the evidence, and the jury heard the court’s admonition that all comments be limited to the evidence produced or to reasonable inferences therefrom. The jury also heard the prosecutor later (1) expressly refrain from indicating what happened to the gun, (2) acknowledge that appellant had argued to the jury that the gun had not been brought to the scene, and (3) concede that the evidence was that no gun was used during the incident. Appellant concedes it appears the prosecutor’s reference to the gun left in the trunk was the result of momentary confusion and not a product of bad faith.
Moreover, appellant’s jury heard all the evidence presented to them. It is undisputed that no evidence was presented to appellant’s jury that the gun was left in the car’s trunk. The court instructed the jury that they must decide what the facts were based only on the evidence presented in this trial, and that neither what the parties’ counsel said, nor closing arguments, were evidence. The jury is presumed to have followed the court’s instructions (cf. People v. Sanchez (2001) 26 Cal.4th 834, 852); therefore, the jury is presumed to have decided the case based on the evidence, which did not include evidence that the gun was left in the trunk.
Further, although appellant disputes that he intended to rob, or robbed, Briseno (count 3), there is no dispute that he tried to murder Briseno (count 2), and that appellant murdered Hernandez (count 1) with express or implied malice. We note as to appellant’s intent to rob Briseno that, after appellant and Lozano left Briseno’s room, Briseno heard appellant ask Hernandez for money. Lozano later reentered Briseno’s room and asked for money, told Briseno to give him something so it would stop, and later took the bag of marijuana. When police later confronted appellant and told him to stop, he went back inside his residence, evidencing consciousness of guilt. Police subsequently found the bag of marijuana in appellant’s bedroom. Leaving aside the prosecutor’s erroneous reference to the gun, the jury reasonably could have concluded that appellant and Lozano, working together, intended to rob Briseno, and committed first degree murder with special circumstances (count 1) and robbery (count 3).
The court instructed the jury that appellant was being prosecuted for murder under the theory that he harbored malice aforethought (express or implied malice) and under the theory that he committed felony murder. The court also instructed that the predicate felony for felony murder could be a robbery of Briseno or an attempt to rob Hernandez. The jury acquitted appellant of attempting to rob Hernandez.
Further still, the jury convicted appellant on counts 1 through 3, and found as to each that appellant personally used a dangerous or deadly weapon within the meaning of Penal Code section 12022, subdivision (b)(1), (that is, as alleged in the amended information, knives and a kitchen fork). The jury also found as to each count that appellant inflicted great bodily injury. The jury further found the attempted murder of Briseno was deliberate and premeditated.
The jury’s findings that appellant actually used knives and/or a fork to brutally commit the offenses, including the premeditated attempt to murder Briseno, diminishes the significance, as it relates to the robbery conviction (count 3) and the first degree and special circumstance findings as to the murder conviction (count 1), of the prosecutor’s erroneous reference to a gun which was never used to commit the offenses. The jury necessarily rejected any argument by appellant that it was unlikely that he intended to rob using deadly weapons other than a firearm simply because he (like many persons) possessed a firearm at home. The jury’s premeditation finding as to the attempted murder of Briseno indicates the jury rejected any argument that appellant merely committed sudden attacks based on anger. Any prosecutorial misconduct was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].)
In light of the above analysis, we reject appellant’s ancillary ineffective assistance claim.
2. The Trial Court Did Not Err by Receiving Briseno’s Testimony About a “Vibe.”
a. Pertinent Facts.
During the People’s redirect examination of Briseno, Briseno testified that when, at times, he had sold marijuana to appellant in October 2003, appellant would call Briseno before coming over. The prosecutor later asked Briseno whether, when appellant came over this time with Lozano, and Briseno opened the door and saw it was they, anything else struck Briseno as unusual or made “you” feel uneasy. Briseno replied that they were “sketchy.”
The prosecutor later asked Briseno what he meant. Briseno replied, “Uneasy, like a vibe you could feel, like they were going to do something.” Appellant objected to that as speculative and moved to strike it. The prosecutor commented that Briseno was describing his emotion. The court suggested Briseno’s reply was descriptive, and overruled the objection. The court did not expressly rule on the motion to strike.
Still later during redirect examination, the prosecutor asked Briseno whether he was saying that the moment he opened the door and saw them, “you felt uneasy.” Briseno replied yes. The prosecutor then asked if there was anything more specific than Briseno’s feeling. Briseno replied that they showed up unannounced, and indicated that that fact was enough to cause Briseno to decide he was not going to sell the pound of marijuana.
b. Analysis.
Appellant claims the trial court erred by receiving Briseno’s testimony about a vibe and the fact that appellant and Lozano were going to do something. Appellant argues the testimony was inadmissible as speculative because the vibe provided no objective basis for Briseno’s inference about what appellant and Lozano intended to do. He argues the testimony was prejudicial because it showed intent to rob; therefore, his robbery conviction and the first degree and special circumstance findings as to his murder conviction must be reversed. We reject appellant’s claim.
We need not reach the issue of whether appellant waived the issue he now presents by failing to secure a ruling on his motion to strike. (See People v. Obie (1974) 41 Cal.App.3d 744, 750.)
“Generally, a lay witness may not give an opinion about another’s state of mind. However, a witness may testify about objective behavior and describe behavior as being consistent with a state of mind.” (People v. Chatman (2006) 38 Cal.4th 344, 397.) A lay witness may provide opinion testimony only when the witness cannot describe the witness’s observations without using opinion language. (People v. Callahan (1999) 74 Cal.App.4th 356, 380.) A trial court’s ruling on the admissibility of lay opinion testimony will not be disturbed on appeal unless a clear abuse of discretion appears. (People v. Mixon (1982) 129 Cal.App.3d 118, 127.)
Briseno’s testimony was inartful, but his testimony reasonably may be construed as indicating that the basis for his inference that appellant and Lozano intended to do something was not merely the vibe, but the related objective fact that appellant and Lozano appeared to be uneasy. The trial court did not abuse its discretion by concluding Briseno’s testimony was descriptive and overruling appellant’s objection that Briseno’s testimony was speculative. (Cf. People v. Mixon, supra, 129 Cal.App.3d at p. 127.) Finally, even absent the challenged testimony, there was, as our analysis in part 1 of our Discussion reveals, ample evidence of appellant’s intent to rob. No prejudicial error occurred. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. at p. 18.)
3. The Trial Court Partially Erred During Sentencing.
a. Imposition of a Penal Code Section 1202.45 Parole Revocation Fine Was Error.
Appellant’s sentence included a prison term of life without the possibility of parole as to count 1, and a prison term of life with the possibility of parole as to count 2.
The trial court also imposed as to count 2, a $5,000 Penal Code section 1202.45 parole revocation fine.
Appellant claims imposition of the above fine was error because his sentence included a term of life without the possibility of parole as to count 1. We agree. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick (2003) 114 Cal.App.4th 663, 668, 687; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186.) We will modify the judgment accordingly.
Respondent claims we should find no error because appellant’s term of life without the possibility of parole as to count 1 might be overturned and, at resentencing, appellant would object to imposition of the fine. We reject the claim. His claim is partially moot because, in this appeal, we will affirm the term imposed as to count 1. His claim is partially hypothetical to the extent it refers, e.g., to a collateral attack (e.g., habeas corpus) on the term imposed on count 1. Moreover, perhaps because of the hypothetical aspect of respondent’s claim, respondent has not specified the circumstances in which the prison term as to count 1 might be overturned. However, if, e.g., it were overturned on the ground that the term was unauthorized, and the fine was imposed upon resentencing, any objection by appellant that imposition of the fine penalized him for exercising his right to appeal would be without merit. (See People v. Hanson (2000) 23 Cal.4th 355, 360, fn. 3.)
b. Imposition of the Great Bodily Injury Enhancement as to Count 1 Did Not Violate Penal Code Section 12022.7, Subdivision (g).
Appellant’s sentence included a three-year Penal Code section 12022.7, subdivision (a), enhancement as to count 1 for the murder of Hernandez. The court imposed the enhancement based on the great bodily injury inflicted on Briseno.
Appellant, noting that Penal Code section 12022.7, subdivision (g), states, “This section shall not apply to murder,” claims imposition of the enhancement was improper. We disagree. Subdivision (g) was designed to preclude imposition of the enhancement for great bodily injury inflicted on the murder victim. The subdivision does not apply when the enhancement is imposed for great bodily injury inflicted upon a person other than the murder victim. (Cf. People v. Weaver (2007) 149 Cal.App.4th 1301, 1329-1335, fn. 35; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1168-1169; but see People v. Beltran (2000) 82 Cal.App.4th 693, 696.)
c. Imposition of the Great Bodily Injury Enhancement as to Count 3 Violated Penal Code Section 654 .
(1) Pertinent Facts.
The jury found true as to each of counts 1 through 3, that appellant inflicted great bodily injury on Briseno pursuant to Penal Code section 12022.7, subdivision (a). Based on those findings, the court imposed consecutive sentences as to counts 1 and 2, with their respective section 12022.7, subdivision (a) enhancements, and imposed a concurrent sentence as to count 3 with its section 12022.7, subdivision (a) enhancement.
(2) Analysis.
Appellant claims imposition of the three Penal Code section 12022.7, subdivision (a), enhancements violated Penal Code section 654. We agree the enhancement as to count 3 must be stayed pursuant to section 654.
Penal Code section 12022.7, subdivision (a), provides that “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished . . . .” Subdivision (f) states, “As used in this section, ‘great bodily injury’ means a significant or substantial physical injury.” Subdivision (f) “contains no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (People v. Escobar (1992) 3 Cal.4th 740, 750.)
Penal Code section 654 states, in relevant part, “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Penal Code section 654, as interpreted by our Supreme Court, prohibits multiple punishment for offenses committed during an indivisible transaction. If all offenses are incident to one objective, the defendant may not be punished for more than one. However, if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the defendant may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (Cf. People v. Bradley (2003) 111 Cal.App.4th 765, 769, fn. 3.) The purpose of Penal Code section 654 is to insure that a defendant’s punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) This includes the trial court’s implied findings. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190 (Nguyen).)
Finally, “gratuitous violence against a helpless and unresisting victim . . . has traditionally been viewed as not ‘incidental’ to robbery for purposes of Penal Code section 654. [Citations.]” (Nguyen, supra, 204 Cal.App.3d at p. 190.) “It is one thing to commit a criminal act in order to accomplish another; Penal Code section 654 applies there. But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense. Once robbers have neutralized any potential resistance by the victims, an assault or attempt to murder to facilitate a safe escape, evade prosecution, or for no reason at all, may be found by the trier of fact to have been done for an independent reason.” (Nguyen, at p. 191.) “ ‘[Even though] the crime of robbery is not actually complete until the robber “has won his way to a place of temporary safety” . . . it cannot mean every act a robber commits before making his getaway is incidental to the robbery.’ [Citation.]” (Id. at p. 193.)
Except to the extent appellant has claimed that Penal Code section 12022.7, subdivision (g), prevented imposition of a Penal Code section 12022.7, subdivision (a), enhancement as to count 1 (a claim we have rejected), there is no dispute that, as to each of counts 1 through 3, appellant personally inflicted great bodily injury in the commission of a felony for purposes of subdivision (a). Appellant’s claim pertains to whether he may be punished for each such infliction of great bodily injury.
In the present case, there was substantial evidence that appellant inflicted great bodily injury upon Briseno when, during appellant’s attempt to murder him (count 2), appellant broke his nose and repeatedly stabbed him with an ice pick.
Appellant subsequently left Briseno’s room, pursuing Hernandez into the living room. Appellant later began stabbing Hernandez. He subsequently robbed Briseno of the marijuana (count 3) when Lozano, appellant’s accomplice, took it and left Briseno’s room. Once Lozano left appellant’s room, the crime of robbery was complete for purposes of establishing appellant’s guilt for that crime.
Nonetheless, after the robbery was complete for purposes of guilt-establishment, appellant left Hernandez and reentered Briseno’s room. Briseno was helpless and put up no resistance; he was still paralyzed by appellant’s earlier brutal assault. The trial court reasonably could have concluded that appellant had not yet reached a place of temporary safety for purposes of the robbery, and that Hernandez was dying (i.e., the murder was not yet complete), when appellant reentered Briseno’s room and slashed his throat with a weapon. The slashing resulted in a scar, and the trial court reasonably could have concluded that the slashing action left a scar running around Briseno’s neck, from below his right ear to almost the midline at the base of his neck. In short, there was substantial evidence that, after appellant reentered Briseno’s room, appellant inflicted great bodily injury during the commission of the offenses of murder (count 1) and robbery (count 3).
In light of the above, there was substantial evidence that there were two separate inflictions of great bodily injury upon Briseno, one, when appellant broke Briseno’s nose and repeatedly stabbed him with an ice pick in an attempt to murder him (count 2), the other, when appellant gratuitously slashed Briseno’s throat during the commission of the murder of Hernandez (count 1) and the robbery of Briseno (count 3). Accordingly, substantial evidence supported the trial court’s implied finding that the imposition of the Penal Code section 12022.7, subdivision (a), enhancement pertaining to count 2, and the imposition of one of the two subdivision (a), enhancements pertaining to counts 1 and 3, respectively, did not violate Penal Code section 654. (Cf. People v. Dominick (1986) 182 Cal.App.3d 1174, 1209-1211.)
People v. Carter (2005) 36 Cal.4th 1215, cited by appellant, does not compel a contrary conclusion. In that case, the trial court stayed the great bodily injury enhancements at issue (id. at p. 1269), with the result that our Supreme Court expressly refrained from addressing any Penal Code section 654 issue. (Carter, at p. 1269, fn. 36.)
However, it appears that each of the Penal Code section 12022.7, subdivision (a), enhancements pertaining to counts 1 and 3, was based upon the same single act of appellant gratuitously inflicting great bodily injury upon Briseno. Accordingly, Penal Code section 654 barred multiple punishment on the section 12022.7, subdivision (a), enhancements as to counts 1 and 3. (People v. Reeves (2001) 91 Cal.App.4th 14, 22-23, 55-57.) In accord with section 654’s mandate that appellant “be punished under the provision that provides for the longest potential term of imprisonment,” we will stay execution of sentence on the Penal Code section 12022.7, subdivision (a), enhancement pertaining to count 3.
People v. Boerner (1981) 120 Cal.App.3d 506, cited by respondent, does not compel a contrary conclusion. (People v. Reeves, supra, 91 Cal.App.4th at p. 55.)
d. Imposition of the Penal Code Section 12022, Subdivision (b)(1), Enhancement as to Count 3 Did Not Violate Penal Code Section 654 .
Briseno was the alleged victim as to each of counts 2 and 3, and the jury found true as to each of those counts that appellant personally used a dangerous or deadly weapon within the meaning of Penal Code section 12022, subdivision (b)(1). Accordingly, appellant’s sentence included imposition of a one-year Penal Code section 12022, subdivision (b)(1), enhancement as to each of counts 2 and 3.
The amended information alleged as to each of counts 2 and 3 that the dangerous or deadly weapons were knives and a kitchen fork.
Appellant claims that imposition of the Penal Code section 12022, subdivision (b)(1), enhancements pertaining to counts 2 and 3, violated Penal Code section 654, with the result that we should stay execution of sentence on the enhancement pertaining to count 3. We disagree. For reasons similar to those we employed to partially reject appellant’s previous section 654 claim, we reject his present one. Substantial evidence supported the trial court’s implied finding that there were two separate personal uses of a dangerous or deadly weapon, one, in connection with the attempted murder (count 2) when appellant repeatedly stabbed Briseno with an ice pick, the other, when appellant gratuitously slashed Briseno’s throat during the commission of the robbery before appellant reached a place of temporary safety. (Cf. People v. Dominick, supra, 182 Cal.App.3d at pp. 1209-1211.) There is no need to stay, under Penal Code section 654, execution of the Penal Code section 12022, subdivision (b)(1), enhancement as to count 3.
Appellant notes that People v. Calderon (1993) 20 Cal.App.4th 82, 87, fn. 4 (Calderon), characterized People v. King (1993) 5 Cal.4th 59 (King), as holding that “one firearm use enhancement may be imposed for each victim even though the crimes are committed in a single incident.” In re Culbreth (1976) 17 Cal.3d 330 (Culbreth), a multiple victim case, held, as a matter of statutory interpretation of Penal Code section 12022.5, that the imposition of two section 12022.5 enhancements, one for each of two murder convictions, was error. King, overruling Culbreth, permitted one enhancement for each conviction.
King did not involve, as do counts 2 and 3 in the present case, a single victim of multiple offenses with an enhancement as to each offense. King permitted “one enhancement for each victim,” as indicated by Calderon, but with the result that two enhancements, one for each victim, were proper; therefore, King expanded, not narrowed, liability for enhancements when there were multiple victims. King did not hold there was “one enhancement for each victim” with the result that if multiple enhancements could otherwise be imposed as to a single victim, only one such enhancement could be imposed. Accordingly, appellant’s reliance upon Calderon is misplaced and there is no need to strike the Penal Code section 12022, subdivision (b)(1), enhancement as to count 3.
DISPOSITION
The judgment is modified by staying execution of sentence on the Penal Code section 12022.7, subdivision (a), enhancement pertaining to count 3, pending completion of appellant’s sentence on his convictions, and by striking the $5,000 Penal Code section 1202.45 parole revocation fine, and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modifications.
We concur: CROSKEY, Acting P. J., ALDRICH. J.