Opinion
E031920.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. BERNARD ALLEN WAFER, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Bernard Allen Wafer (defendant) appeals from various robbery and robbery-related convictions. We agree with defendant that the gun use enhancement under Penal Code section 12022.53 related to count 13 should be dismissed. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
An information charged defendant with 16 counts of robbery, 1 count of being a felon in possession of a firearm, and related enhancing allegations. The robberies will be recounted in chronological order.
I. Factual Background
A. Count 16 — Robbery of Anna Musser
On March 31, 2001, Anna Musser entered her car in a grocery store parking lot. After Musser rolled down her window, defendant suddenly appeared, stuck a gun to her neck, and told her to turn off the car and hand over the keys. Musser complied with his demands. Defendant was holding the gun in his right hand, and he used his left hand to feel her front jeans pockets, apparently for money. Defendant told Musser not to look at him. Defendant then told Musser to empty out her purse and demanded her wallet and cellular telephone. Defendant went through Mussers wallet, then asked Musser if her telephone worked. Musser told defendant that the telephone worked, but that it was not working at the time because the battery was not charged. Defendant told Musser to put her head down on the steering wheel, then he left with her wallet, keys and telephone.
B. Count 14 — Robbery of William
Austin
At 7:00 p.m. on April 4, 2001, William Austin, after going through a drive-through of a McDonalds in Moreno Valley, was sitting in his car in the parking lot with 15-year-old Nicholas P. Defendant approached Austins open drivers window with what appeared to be a nickel plated Derringer. Defendant demanded and obtained Austins wallet, cellular telephone and car keys. Defendant then started patting Austin down as if he were looking for more money. Austin "kind of lost [his] mind" and attempted to wrestle the gun away from defendant. His hands slipped, and defendant retained the gun in his hand. Instead of shooting Austin, defendant began to pistol-whip Austin with the gun, hitting him approximately 10 times. During the robbery, defendant insinuated that there was someone else with him, but Austin did not see anyone else. Defendant told Austin not to look at him and to put his head on the steering wheel. At trial, Nicholas P. identified defendant as the robber.
C. Count 13 — Robbery of Teresa Martinez-DeMeyer
On April 12, 2001, social worker Teresa Martinez-DeMeyer stopped at the Moreno Valley Mall. When she got back into her car in the parking lot at approximately 9:00 p.m., she saw a figure approaching her from her left side. Before Martinez-DeMeyer could lock the door, defendant pulled the door open and wedged himself between the door and the car. Defendant was holding a small gun in his hand and he told Martinez-DeMeyer to be quiet and to hand over her money. When Martinez-DeMeyer handed defendant her purse, he then demanded her car keys. Defendant told Martinez-DeMeyer to put her head on the steering wheel. Then, as if talking to a third person, defendant said, "If she moves, shoot her mother f—-ing head off." When Martinez-DeMeyer finally looked up, she saw a white Mustang driving away.
D. Count 11 — Robbery of Jolee Auburne
At 9:00 a.m. on April 14, 2001, Jolee Auburne parked her truck in the parking lot of the Soboba Casino in Hemet. Just as she opened the drivers door, defendant approached her with a small, shiny gun in his right hand. Defendant put the gun to Auburnes temple and said, "Scoot over." Instead, Auburne squeezed past defendant and got out of her truck. Auburne also slammed the door shut, locking it automatically. Defendant, who was angry, waved his gun and said, "Do you know what this is?" Defendant then grabbed Auburne around her neck and started strangling her. Auburne was unable to fight back and eventually lost consciousness. When Auburne awoke, she lay underneath her truck, bleeding. Auburne saw that defendant was still near her truck. Auburne tried to scream, but "it was more of a croak because [her] throat was really sore." Defendant looked at her, then, very slowly turned around, took his keys from his pocket, got into a white car, and drove away. Auburnes wallet, which had been in her back pocket, was gone. Auburne suffered a concussion and was bleeding from an injury to her forehead, but had no recollection of how those injuries were inflicted.
E. Count 10 — Robbery of Margo Franklin
At approximately 11:30 a.m. on April 14, 2001, Margo Franklin left a store in Moreno Valley. After she got into her car, but before she could close the drivers door, defendant approached her with a chrome-colored gun in his hand and demanded her purse. After he got Franklins purse, defendant ordered her to put her head down on the steering wheel, then he told her to hand over her car keys. Franklin complied. Defendant appeared to be talking into a cellular telephone or walkie-talkie he held in his left hand. Franklin recognized defendant as the man who robbed her as soon as she saw him in the courtroom.
F. Count 8 — Robbery of Margaret Kelly
Shortly after 6:00 p.m. on April 18, 2001, Margaret Kelly was sitting in her car in a grocery store parking lot in Moreno Valley. Kelly was waiting for her daughter, who had gone into the store. Defendant approached the open drivers side window, pointed a small silver or chrome-colored handgun at Kellys neck, and said, "Give me your money." Kelly started to pick up some spare change she had in the car, but defendant told her not to bother and ordered her to empty out her purse. Defendant demanded Kellys ATM card, then wanted her PIN number. When Kelly gave him her daughters PIN number, defendant repeated it into a cellular telephone he was carrying. Defendant told Kelly it was the wrong number and asked her if she wanted him to shoot her. After Kelly gave defendant her correct number, defendant told her to lie down on the seat and to throw her car keys on the floor. Kelly did not see defendant leave. Kellys ATM card was used once that same day at an ATM at a McDonalds in Perris for $ 201.75.
G. Counts 6 and 7 — Robberies of Isabel Gonzalez and Gloria Moreno-Kelman
At approximately 3:30 in the afternoon on April 22, 2001, Gloria Moreno-Kelman and Isabel Gonzalez were sitting in a car in a parking lot near a taco stand in Moreno Valley. The two, who were on a break from work, had just left the drive-through window and were about to eat their food when defendant approached the drivers open window and put a little silver-colored handgun to Gonzalezs head. Defendant said, "Dont move or Ill shoot you," and demanded their purses. Neither Moreno-Kelman nor Gonzalez had their purses with them, but defendant spotted a small purse on the floor that belonged to Moreno-Kelmans daughter. Defendant demanded the purse and Moreno-Kelman handed it to him. During the robbery, defendant appeared to be talking to someone on a cellular telephone he was carrying. Defendant told the women to put their heads down on the dashboard and not to look around. After defendant took approximately $ 19 from one of Gonzalezs pockets, he left the scene in a small white car. A short time later, a Black man matching defendants general appearance was seen throwing the purse out of the window of the small white car.
H. Count 5 — Robbery of Virginia Jofre
At 9:00 or 9:30 a.m., on April 23, 2001, Virginia Jofre was waiting for her daughter in her car in the parking structure of a Riverside shopping mall. Jofre turned to her left when she heard someone say, "Hey," then she started to scream when she saw defendant pointing a small, silver gun at her. Defendant told Jofre to stop screaming and began asking her questions about where she lived and where she banked. Defendant also demanded Jofres bank PIN number. Jofre answered his questions, and defendant repeated the PIN number into a cellular telephone he was carrying. After instructing Jofre to take off her seat belt and to lie down in her car, defendant left with Jofres purse and its contents. Jofre heard defendants footsteps as he walked away, and saw him drive away in a white car. A videotape taken by security cameras in the parking structure was shown to the jury. Jofres ATM card was used twice, later that same day at an ATM at a McDonalds in Riverside. Each time the card was used, $ 201.75 was taken.
I. Counts 3 and 4 — Robberies of Justin Hill and Erin Bratton
On April 24, 2001, Justin Hill and his girlfriend, Erin Bratton, were sitting in Hills car by the side of a gas station and quick market near the intersection of Van Buren and Trautwein in Riverside. Hill had just been inside the market to purchase some drinks, and as he was about to start his car, he "felt a nudge on the left side of his head." When Hill turned his head, he saw a four-barrel, silver colored Derringer pointed between his eyes. Defendant was holding the gun.
Defendant demanded money and told Hill to empty out his pockets. Hill emptied most of the things from his pockets, but falsely claimed that he did not have a wallet. Defendant demanded Brattons purse, but, after looking inside the purse and wallet, he did not take anything from the purse. Instead, defendant took Hills keys and both Hills and Brattons cellular telephones. During the robberies, defendant told Hill and Bratton not to look at him and threatened to shoot them. Defendant also appeared to be talking to an accomplice, but Hill did not see anyone else at that time.
Defendant instructed Hill and Bratton to put their heads down and not to move. When Hill heard defendant moving, he lifted his head a bit. In his side mirror, Hill saw defendant walking away. Aware that there were people in and around the market, Hill kicked his door open and "yelled at the top of [his] lungs, Hey. Grab that man. He just robbed me." Hill got out of his car and ran after defendant, but did not catch up to him until defendant was behind the wheel of his own car. Hill grabbed the steering wheel with his left hand and punched defendant in the head with his right hand. Hill hit defendant hard enough to knock him over into the lap of his front seat passenger, who Hill described as a "thin, Black female." Defendant managed to put his car in gear, punch Hill in the face, and "fishtail" out of the lot. During the events near defendants car, a good Samaritan, Joseph Hulsey, ran to the passenger side of defendants car in an attempt to help stop defendant from fleeing the scene.
A few days after the robbery, Hill identified Calvin M., a 17-year-old Black male, as the person he had seen in the passenger seat of defendants car. Calvin had long hair at the time, which he wore in a ponytail.
As defendant sped away, Hill yelled out the number on defendants rear license plate in the hope that he and the others in the immediate area would remember it. Hill then ran into the store and called 911. Hill gave the dispatcher a description of defendants car, a Mustang, and license plate number 4CDK286.
J. Count 1 — Robbery of Donald Shedd
On April 24, 2001, at approximately 6:00 or 7:00 p.m., 79-year-old Donald Shedd sat in his car in the parking lot of the Sun City library as he ate a hamburger. A "fairly slim and tall" Black male, who was approximately 30 years old, approached the open drivers window with a small, chrome gun in his hand and said, "Give me your wallet." The man also demanded Shedds keys. After Shedd complied with the demands, the robber ran away on foot. Shedd testified that defendant looked like the man who robbed him.
K. Count 2 — Robbery of Martha Henning
On April 24, 2001, at approximately 6:30 p.m., defendant approached Martha Henning just after she got into her van in the parking lot of a store in Menifee. Defendant, who had a small silver-colored gun in his hand, told Henning to remain calm. Defendant took Hennings wallet out of her purse, looked through it, and took out her ATM card. He then asked her for the PIN number and told her she better tell him the truth. When Henning gave defendant her PIN number, defendant repeated the number into a cellular telephone he was holding in his other hand. Defendant left the scene with Hennings wallet and its contents.
Later that night on April 24, 2001, defendants car, a white Mustang, was found in a parking lot of a McDonalds in Perris. Defendant was spotted by police on a street in Perris and arrested a short time later. Defendants wallet and a fully loaded, .22-caliber chrome handgun were found hidden in a planter approximately 50 yards away from the location of defendants arrest. The contents of Donald Shedds and Martha Hennings wallets were found in defendants car. That same night, police took Justin Hill to a location in Perris. After Hill saw defendant, Hill positively identified him as the robber.
L. Count 17— Felon in Possession of Firearm
The information also charged defendant of being a convicted felon in possession of a firearm between the dates of March 31, 2001 and April 24, 2001.
II. Procedural Background
After a trial on the above counts, the jury found defendant guilty in counts 1 through 8, 10, 11, 13, 14, 16, and 17. As to counts 2 through 8, 10, 11, 13, 14, and 16, the jury found the allegations that defendant personally used a firearm during the commission of the offenses were true. The court struck the enhancement allegations related to count 1. The jury found defendant not guilty of the charges in counts 9 and 15. The trial court granted the Peoples motion to dismiss count 12 after the jury was unable to reach a verdict on that count. Moreover, defendant waived a court and jury trial as to the prior strike/conviction allegations and admitted that they were true.
On the date of sentencing, the trial court denied defendants motion to strike his prior strike allegations. The trial court imposed a determinate term of 125 years in prison, plus an indeterminate term of 350 years to life in prison, for a total prison commitment of 475 years to life. Defendant appeals.
ANALYSIS
I. Defendants Conviction for Count 16 — Robbery of Anna Musser — Is
Supported by Substantial Evidence
Defendant contends that his conviction for robbing Anna Musser (count 16) must be reversed because there is insufficient evidence to sustain the conviction.
A. Standard of Review
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]"
People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374.
B. The Conviction Is Supported by Substantial Evidence
Defendant contends that the robbery conviction of Anna Musser must be reversed because "Mussers almost positive identification of [defendant] lacks solid probative value." This contention is without merit.
Mussers identification of defendant was sufficient. When the prosecutor asked Musser whether she saw the man who robbed her, she replied: "Not very well. I have a very low car." Later in her testimony, however, Musser testified that she remembered "seeing most of his face." Moreover, Musser testified that she saw the robber, who was only one foot away from her, from the nose down. Thereafter, when the prosecutor asked whether Musser saw the man who robbed her, she stated, "Yes, I believe I do," and identified defendant in court. Musser testified that she recognized him by "his face," and that she remembered his jaw line being narrow. The jury also heard testimony about Mussers identification of defendant in a photographic lineup. After the robbery, Musser was shown some photographs. A detective "put a business card over the top of the peoples faces so [she] could look at all of them from the same [perspective]." Musser was able to identify defendant as the robber. Both the photographic and the in-court identifications were sufficient to support defendants conviction.
Moreover, in their deliberations, the jury was not limited to considering only Mussers recollection of the robbery. The jurors were able to consider the credibility of all the witnesses identification of defendant in court, as well as the similar pattern of defendants crimes. Part of the evidence against defendant was his modus operandi of (1) approaching unsuspecting victims as they sat in their parked cars, (2) pointing a small chrome or silver handgun at them, (3) telling them not to look at him, (4) demanding money or other items, (5) taking money, wallets, cellular telephones and other valuables, and (6) telling them to put their heads down as he made his escape. We reject defendants argument that "this is not a unique way of perpetrating a robbery or a signature-type robbery." In fact, the concurrence of all these distinctive features could have been properly considered by the jury as evidence of defendants guilt. It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence.
People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765-1766.
People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal. Rptr. 228, 721 P.2d 110; People v. Hale (1999) 75 Cal.App.4th 94, 105.
There was more than substantial evidence to support defendants conviction for the robbery of Musser (count 16).
II. The Trial Courts Error in Failing to Instruct the Jury With the Proper Version of CALJIC No. 2.20 Was Harmless Error
Defendant impeached Calvin M., a prosecution witness, with evidence that Calvin had admitted committing a robbery on March 31, 2001, as part of a plea bargain. Defendant contends that the trial court erred in failing to sua sponte instruct the jury with the last portion of CALJIC No. 2.20, which informs jurors that they may consider a witness prior conviction of a felony in assessing that witness credibility.
A. Testimony of Calvin M.
At the beginning of his testimony, 17-year-old Calvin M. admitted that he had been transported to the court from juvenile hall to testify as a witness for the prosecution.
Calvin testified that he had met defendant through defendants girlfriend, and that on April 24, 2001, he had known defendant for approximately one week. Calvin claimed that he was standing out by a school bus stop at approximately 3:30 in the afternoon on April 24, 2001, when defendant drove by and offered Calvin a ride in his white Mustang. Calvin accepted. Calvin testified that they drove around Riverside. During the drive, defendant told Calvin that he was "on to some new stuff, some new licks" which Calvin explained to mean robberies or some other way of "coming up on money."
At some point, defendant parked his car on the side parking lot of a gas station, a short distance behind another car in which two people, a man and a woman, were sitting. Defendant told Calvin to stay in the car and that he would be right back. Defendant then approached the man sitting in the car. Defendant was "leaning" on the drivers side door and appeared to be talking to the man in the drivers seat. Defendant remained there for a few minutes, then he turned around and returned to the Mustang, walking in a normal manner. At that point, the man in the other car got out of his car and yelled, "Help, help." Defendant got into the drivers seat, and the man from the other car began struggling with him and tried to grab the steering wheel. At the same time, another man approached the passenger side of the car, where Calvin was sitting, and tried to grab him. Eventually, defendant managed to drive off, and they got on the freeway. While on the freeway, they threw two cellular telephones out the car window. Calvin believed that defendant had obtained the telephones from the two people in the parked car. Defendant told Calvin that he had not obtained anything in that encounter. Calvins description of these events matched the robberies of Justin Hill and Erin Bratton, as charged in counts 3 and 4.
After they got off the freeway, they parked the Mustang in the parking lot of a store. Calvin remained in the car as defendant got out and walked out of his view. When defendant returned five or ten minutes later, he told Calvin that he had obtained a credit card and was going to get some money. Calvin thought defendant had also obtained a wallet in that robbery. Calvins testimony described the robbery of Martha Henning as charged in count 2.
They got back on the freeway, then got off the freeway and stopped near an older man sitting in a car next to a library. Defendant stated that it was Calvins turn and gave Calvin a handgun that looked like the handgun in evidence. Calvin stated that he got out of the car, approached the man in the parked car, put the gun on the door, and asked the man for his wallet. The man complied, then Calvin walked back to defendants car and got in. After they drove away, they took the money out of the wallet and threw the wallet out the window. Calvins testimony described the robbery of Donald Shedd (count 1).
Shedd, however, testified that he believed defendant to be the person who robbed him. The prosecutor contended that defendant was an aider and abettor to the robbery of Shedd.
Defendant and Calvin got back on the freeway, then went to a McDonalds in Perris. They were inside the McDonalds, but not standing next to each other, when the police arrived. Police pursued defendant as he fled the McDonalds on foot. Calvin was not arrested at the time.
During cross-examination, Calvin testified that as part of a juvenile plea bargain, he admitted that he committed a robbery on March 31, 2001. Calvin, however, testified that he did not actually commit a robbery on March 31, 2001. He admitted that he had committed another robbery on an unspecified date, but maintained that he only said he committed a robbery on March 31, 2001, for the purpose of his juvenile plea agreement.
B. Version of CALJIC No. 2.20 Given to the Jury
The trial court instructed the jury with the following modified version of CALJIC No. 2.20:
"CALJIC [No.] 2.20. Believability of witnesses. Every person who testifies under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given to the testimony of each witness. In determining the availability — in determining the believability of a witness, you may consider anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following:
"The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified;
"The ability of the witness to remember or to communicate any matter about which the witness has testified;
"The character and quality of that testimony;
"The demeanor and manner of the witness while testifying;
"The existence or nonexistence of a bias, interest, or other motive;
"The existence or nonexistence of any fact testified to by the witness;
"The attitude of the witness toward this action or toward the giving of testimony."
The trial court blacked out the following portions of the standard CALJIC No. 2.20 instruction, which were not read to the jury:
"[The character of the witness for honesty or truthfulness or their opposites] [;]
"[An admission by the witness of untruthfulness] [;]
"[The witness prior conviction of a felony][;]
"[Past criminal conduct of a witness amounting to a misdemeanor] [;]
"[Whether the witness is testifying under a grant of immunity]."
C. The Trial Courts Error Was Harmless
On appeal, defendant contends that the trial court should have sua sponte included the language in the standard version of CALJIC No. 2.20, telling the jury to consider a witness prior felony conviction in assessing that witness credibility as a witness. The People simply argue that defendant "waived this claim of error." The Peoples waiver argument is not applicable because, as defendant points out, the trial court had a sua sponte duty to instruct the jury with relevant portions of CALJIC No. 2.20. The Use Note to CALJIC No. 2.20 states that the instruction should be given sua sponte in every criminal case, citing People v. Rincon-Pineda. Accordingly, the trial court erred in failing to instruct the jury with the full version of CALJIC No. 2.20.
People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884, 123 Cal. Rptr. 119, 538 P.2d 247.
However, "it is well established that the error in failing to give the cautionary instruction is not prejudicial per se. The circumstances of each case must be reviewed on appeal to determine whether failure to give the instruction was prejudicial. [Citation.] Such failure does not constitute prejudicial error if "the evidence clearly points to the defendants guilt, or . . . the testimony of the prosecuting witness is amply corroborated, or there are other factors in the case which show that the defendant has been given a fair trial." [Citation.] Under this standard, a finding that failure to give the instruction was harmless error has been far more the rule than the exception. [Citations.]"
People v. Rincon-Pineda, supra, 14 Cal.3d 864, 872.
In the present case, the failure to give the relevant portion of CALJIC No. 2.20 was not prejudicial. First, the evidence clearly pointed to defendants guilt. Second, Calvins testimony was corroborated by the testimony of the other witnesses during trial. Third, the jury already knew that Calvins credibility was at stake, and was aware not only of his robbery conviction, but also of his evasive denial of that very conviction.
Even without Calvins testimony regarding the robberies that occurred on April 24, 2001 (counts 1 through 4), the evidence of defendants guilt was overwhelming. On the night of several of the robberies, defendant and his white Mustang were at a McDonalds in Perris. Defendants wallet and a fully loaded . 22-caliber chrome handgun, like the gun used in the robberies, were found hidden in a planter approximately 50 yards away from the point of his arrest. Donald Shedds drivers license, library card, and other contents from his wallet were found in defendants car. Martha Hennings wallet, including her drivers license and zoo pass were also found in his car. That same night, Hill positively identified defendant as the man who robbed him. A few days later, when Hill was shown a photographic line-up, he identified a photograph of Calvin M. as the person in the passenger seat of defendants car during the robbery.
Moreover, at trial, Shedd, Henning and Hill all testified that the robber had approached them in their parked cars, had a chrome or silver-colored gun, and asked for money. The description of what had occurred during the robberies corresponded precisely with Calvins testimony.
Furthermore, the jurors in this case knew that Calvin was not a model citizen — they were informed that Calvin had previously committed at least one robbery and that he was in custody in juvenile hall.
As an aside, we fail to see how Calvins testimony regarding defendants admission that he was "on to some new stuff, some new licks" could have been "used to fill the gaps in weak identification testimony" in the other counts. Calvin simply testified that defendant stated that he was up to new robberies or ways to come up with money. There were no specifics in this testimony regarding the robberies that occurred prior to April 24, 2001. Without any specific references, we fail to see how the jury could have given this statement any significant consideration.
In light of the above, we hold that the trial courts error in failing to instruct the jury with the proper version of CALJIC No. 2.20 was harmless.
III. Defendants 1990 Juvenile Adjudications Constitute Prior Strike Convictions
Defendant contends that his two 1990 juvenile adjudications for robbery and kidnapping should not be considered prior strikes because he was not afforded the right to a jury trial in that proceeding.
In support of his argument, defendant relies upon the Ninth Circuits decision in U. S. v. Tighe. In Tighe, the Ninth Circuit held that a prior juvenile adjudication did not fit the prior conviction exception to the Apprendi rule if the adjudication had been the result of a proceeding where the accused did not have a right to a jury trial and proof beyond a reasonable doubt. Tighe, however, has been rejected in California in People v. Bowden. The court in Bowden disagreed with the Ninth Circuits holding in Tighe and concluded that "the lack of a jury trial does not undermine the reliability of juvenile adjudications [for purposes of the Three Strikes law] in any significant way."
U. S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe).
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S. Ct. 2348, 2362-2363 147 L. Ed. 2d 435], the United States Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury . . . ."
Tighe, supra, 266 F.3d 1187, 1194.
People v. Bowden (2002) 102 Cal.App.4th 387, 393-394 (Bowden).
Bowden, supra, 102 Cal.App.4th 387, 394.
We agree with the holding in Bowden, and hold that the trial court properly considered the two 1990 juvenile adjudications as prior strikes.
IV. The Gun Use Enhancement Related to Count 13 Should be Dismissed
Defendant contends, and the People concede, that the gun use enhancement under Penal Code section 12022.53, subdivision (b) was not alleged in count 13 of the information. The jury, however, was permitted to return a true finding on count 13 under section 12022.53, subdivision (b). Therefore, both defendant and the People agree that the determinate 10-year term imposed in conjunction with the 25-year-to-life sentence on count 13 should be stricken.
DISPOSITION
The judgment is hereby modified by striking the 10-year gun use enhancement under Penal Code section 12022.53, subdivision (b) for count 13. The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Director of the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.