Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH44603
Bruiniers, J.
Kalvyn Winters and Charles Granderson (appellants) were charged by information with second degree robbery of Akram Saleh (Saleh) (Pen. Code, § 211; count one), attempted second degree robbery of Mohamed Bagadi (Bagadi) (§§ 211, 664; count two), assault with a semiautomatic firearm of Bagadi (§ 245, subd. (b); count three), and receiving stolen property (§ 496, subd. (a); count four). With respect to the first three counts, it was further alleged, as against both appellants, that a principal in the offense was armed with a firearm (§ 12022, subd. (a)(1)). Appellants were jointly tried by jury and both convicted on counts one, two, and three. The firearm enhancement allegations were also found true.
Unless otherwise noted, all further statutory references are to the Penal Code.
Count four was dismissed on the People’s motion before jury selection.
On appeal, appellants contend that: (1) the prosecutor exercised peremptory challenges in a racially discriminatory manner; (2) substantial evidence does not support the attempted robbery convictions; (3) the trial court erred by referring to the prosecutor as “the People” in jury instructions; (4) the trial court abused its discretion by imposing the same sentence on both appellants; and (5) the trial court improperly applied a one-year arming enhancement to appellants’ terms for assault with a semiautomatic firearm. We agree that the one-year arming enhancement must be stricken as applied to count three. Otherwise, we affirm.
I. Factual and Procedural Background
Because the sufficiency of evidence to support the attempted robbery convictions is at issue, it is necessary to present a somewhat detailed statement of the evidence presented at trial. Additional facts are contained in the discussion of issues to which they relate.
Saleh worked as general manager at the Smoke Shop in San Leandro. He was at work on March 20, 2008, at approximately 4:30 p.m. Bagadi stopped by the Smoke Shop to buy cigarettes on his way home from work. Bagadi is a friend of the Smoke Shop owner and was a regular customer of the Smoke Shop.
Saleh’s brother owns the store, which is located on East 14th Street.
Before Bagadi entered the store, he noticed a man, whom he later identified at preliminary hearing and at trial as Granderson, and two other men near a car dealership at the corner of East 14th Street and 172nd Avenue. Bagadi entered the Smoke Shop and talked with Saleh for a minute. Saleh asked Bagadi if he would watch the store for a minute so that Saleh could go outside and smoke. Saleh then stepped outside with another customer.
Once outside, and after the other customer had left, Saleh saw three African-American men with their faces covered, wearing hooded sweatshirts and gloves, approaching the store. Saleh told the men that they could not enter the store with their faces covered. One of the men, who was wearing a grey hooded sweatshirt, pointed what appeared to be a gun at Saleh from inside his pocket, grabbed Saleh by the arm, and yelled, “Get inside, otherwise I’m going to kill you.” Saleh broke free and ran across the street, yelling “I don’t have any money in the store. You just leave me alone.” Saleh saw all three of the men enter the Smoke Shop.
Bagadi remained in the store, looking at a domino set that was for sale on the counter. While Bagadi was at the end of the counter, he heard loud footsteps coming into the store, as if more than one person was running. Bagadi next heard a voice ask “where is the money?” Bagadi turned around, looked up and saw a man pointing the barrel of a gun at him. Bagadi described the man with the gun as being African-American, six feet or 5 feet 11 inches tall, and wearing a grey hooded sweatshirt and a light-colored bandana that covered his face below his eyes. Bagadi said “I’m a customer. I really don’t care what you do in here....” Bagadi noticed a second man at the door to the store, but did not get a chance to look at his face.
Although Bagadi’s testimony is not entirely clear, it appears that Bagadi was behind the counter, with the cash register to his right, when the man with the gun appeared on his right. Bagadi testified that the man must have jumped over the counter. Accordingly, appellants’ suggestion that Bagadi was “in the customer area... not near the cash register” is not supported by the record.
The man with the gun walked towards the cash register and began trying to open it. Bagadi continued to talk to the man, who kept the gun pointed at him. The man told Bagadi to “shut the fuck up.” According to Bagadi, the man “was uncomfortable with the situation as if he’s surprised to see somebody at the store.” Bagadi decided to run. As Bagadi turned to run out of the store, the man with the gun shot him in the right arm. Bagadi ran to the owner’s apartment, which was behind the Smoke Shop.
In the meantime, Saleh called the police on his cell phone. Three or four minutes after he fled across the street, Saleh saw each of the three men exit the Smoke Shop, carrying items in their hands, including a red jersey and other articles of clothing. The men walked towards the car dealership on the corner of East 14th Street and 172nd Avenue. Saleh saw the men leave in a red Corolla. The Smoke Shop owner’s wife called 911. The police arrived about 10 minutes later and Bagadi was taken by ambulance to the hospital.
A witness who was driving in the area testified that he saw three people, wearing hooded sweatshirts, running down East 14th Street at approximately 4:45 p.m. on March 20, 2008. He watched them get into a red car and drive off quickly. He wrote down the license plate number of the car, which was later given to the police. The owner of the car dealership at East 14th Street and 172nd Avenue also saw three men running to a red car that was either a Toyota Corolla or a Geo Prism. One of the men was carrying something red that looked like a t-shirt or other article of clothing. The same man also had something like a bandana covering part of his face.
Saleh testified that the men had taken the drawer from the Smoke Shop’s cash register, which contained approximately $360 in cash. Saleh also advised police that merchandise had been stolen from the store, including jeans, t-shirts, and a red 49ers jersey.
On the date of the robbery, at approximately 8:12 p.m., Jared Jaksch, a deputy with the Solano County Sheriff’s Department, was patrolling in Vallejo. Jaksch noticed a maroon Toyota Corolla that began making abrupt turns. The car was speeding and had a broken tail light. Jaksch sounded his siren and activated his emergency lights, but the car did not immediately pull over. Eventually, as the car slowed and pulled to the curb, the right front passenger door opened and an African-American male exited the vehicle and jumped a fence. A second person, later identified as Winters, exited the vehicle from the right rear passenger door and began climbing over the same fence.
Jaksch chased the two men unsuccessfully. He returned to where the Corolla had pulled over and saw the driver of the car walking towards the trunk. Jaksch identified the driver as Granderson. Granderson was wearing a red 49ers football jersey. Granderson was detained and handcuffed. Jaksch also saw Winters across the street walking away and radioed his description and location to backup units. Winters was arrested wearing a pair of Girbaud jeans, and a second pair were found in the car. The third man who had been in the vehicle was not found.
Bagadi later recognized these jeans as having been worn by one of the suspects.
The third individual apparently dropped his wallet as he fled, and was identified and arrested at a later time.
Jaksch searched the car and located a loaded, semiautomatic.22-caliber firearm on the right rear passenger floorboard. He located on the left side of the rear seat a pile of clothing, including two or three black hooded sweatshirts, jeans, and a light-colored bandana. Jaksch ran the license plate of the car. The license number matched that reported on the red car seen leaving the scene of the Smoke Shop robbery. After Jaksch was informed that the car had been involved in a felony, both appellants were detained until Alameda County officers took them into custody. No money was found on either appellant. A later search of the car pursuant to warrant led to the discovery of Winters’s birth certificate in the glove compartment of the car, as well as more clothing, including both a black hooded sweatshirt and a grey hooded sweatshirt.
A Sacramento police officer testified that he had stopped both appellants in the same Toyota Corolla nine days earlier, on March 11, 2008. Granderson was driving and Winters was in the front passenger seat. An insurance document in Granderson’s name was in the glove compartment. Granderson and Winters told the officer that the Corolla belonged to both of them.
The jury returned verdicts finding both appellants guilty on counts one (second degree robbery of Saleh), two (attempted second degree robbery of Bagadi), and three (assault with a semiautomatic firearm upon Bagadi), and finding the alleged firearm enhancements to be true.
On August 14, 2008, appellants were each sentenced to state prison for the following concurrent terms: (1) nine years on count three; (2) three years on count one; and (3) two years on count two. A one-year arming enhancement was applied to each count, including assault with a semiautomatic weapon, pursuant to section 12022, subdivision (a)(1). Thus, the aggregate term of each appellant’s sentence is 10 years. Each appellant filed a timely notice of appeal.
II. Discussion
Appellants contend that: (1) the prosecutor exercised three peremptory challenges in a racially discriminatory manner; (2) substantial evidence does not support the attempted robbery convictions; (3) the trial court erred by referring to the prosecutor as “the People” in the reasonable doubt jury instruction; (4) the trial court abused its discretion in imposing the same sentence on both appellants; and (5) the trial court improperly applied a one-year arming enhancement to appellants’ sentences for assault with a semiautomatic firearm. We address each of these arguments in order.
A. Prosecutor’s Use of Peremptory Challenges to Strike African-American Prospective Jurors
Granderson’s trial counsel objected, under Batson v. Kentucky (1986) 476 U.S. 79 (Batson), overruled in part by Powers v. Ohio (1991) 499 U.S. 400, and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, to the prosecutor’s use of peremptory challenges to strike three African-American prospective jurors. On appeal, both Granderson and Winters contend the trial court erred in denying the Batson/Wheeler motion.
The People argue that Winters failed to preserve the argument he raises on appeal because he did not join in Granderson’s Batson/Wheeler motion before the trial court. We need not address the issue because appellants’ argument fails on the merits.
1. Background
During jury selection, after the prosecutor had used peremptory challenges to excuse three African-Americans from the jury panel. The following exchange occurred on the record:
“[GRANDERSON’S DEFENSE COUNSEL]: I just wanted to preserve for the record that the District Attorney has exercised peremptory challenges on the last three jurors have all been, in my perception, have been that they are African-American. [J.G.] who worked for the IRS, [G.Z.] who went to USC and lives in Pleasanton. He’s an educator. And [D.S.] who was an equity research assistant for Fairmont, and I’m not sure whether this Court wants to entertain argument at this time or after, right before the jury is sworn, based on the composition as it turns out.
“THE COURT: It’s too late once the jury is sworn.
“[GRANDERSON’S DEFENSE COUNSEL]: There are still two African-American persons on the
“[PROSECUTOR]: Three.
“[GRANDERSON’S DEFENSE COUNSEL]: -- in the box.
“THE COURT: There’s actually three still in the jury box, so I take it
“[GRANDERSON’S DEFENSE COUNSEL]: 1, 2 and 3, yeah, so
“THE COURT: So, ... you either make the motion or you don’t make the motion. So I’m going to hear argument now if you’re going to make the motion because I can’t really reserve on that. I have to make a decision now whether or not to grant that motion.
“I take it it’s just on the basis of the last three jurors, the peremptory challenges that have been exercised by the prosecutor[, ] all of them being African-American individuals that you’re -- is that the basis of the motion?
“[GRANDERSON’S DEFENSE COUNSEL]: Yes, your Honor, and I think that’s the prima facie right there.
“THE COURT: All right. Let me hear from the People.
“[PROSECUTOR]: Well, your Honor, first, I don’t believe that a prima facie case has been shown. Even if there was one shown, looking at the current make-up of the jury, juror number 1, ... is African-American. He is still on. Juror number 7, ..., is African-American and she is still on. And juror number 4, ... is African-American, and he is still on. And for the record, I am African-American. I did not kick [J.G.], [G.Z.] or [D.S.] solely because they were African-American. That had nothing to do with it.
“[J.G.] when she was asked by me as well as the Court, it seemed like a lot of the concepts were just going over her head. I didn’t think that she was -- and not to be rude about it, but I didn’t think that she was sophisticated enough to grasp reasonable doubt because when we were -- when we asked her about it she kind of smiled, she paused, and she just didn’t seem to get it. I just didn’t think that she understood the legal terms.
“In addition, she stated that a number of her family were involved in crimes and that she doesn’t deal with them. I find that kind of hard to believe that even if it were true that raised a question mark in my mind about her.
“[G.Z.], I didn’t like him because he went to USC, period, and not because he was African-American, and I also thought that he soft pedaled a little bit that police stop. I think that what he wanted to say is that he was stopped solely because he was African-American and that was the issue out in El Segundo when he was passing out pamphlets.
“In terms of [D.S.], I asked him do you feel sorry for the defendants, and he said yes, I felt sorry for them. This kind of sucks. I’d hate to be in this position. I feel sorry for them for being in that position. That was enough for me to want to kick him, and he also stated that some people are convicted falsely.
“I didn’t want that -- a person with those beliefs in my jury when -- especially if it comes down to it and they’re deliberating, those things might pop up.
“So that’s why I kicked all three of those individuals and not because they were African-American.
“THE COURT: All right. Well, let me say this which is that I did note that the last three challenges by the People were persons of African-American descent. I do note also that there are three jurors who remain on our panel who are [of] African-American descent. Actually luckily for us, the panels that we’ve had so far have had a fair number of African-American[s] represented which we don’t always have. Actually that’s the good news that we do have.
“However, the question is whether or not there’s a prima facie case, that is the question of whether or not the Court believes there is a strong likelihood or reasonable inference that the persons being challenged are being challenged as a result of their -- in this case their racial make-up[. A]lthough I am a little concerned because I do see the last three peremptory challenges have been exercised against persons of African-American descent. I don’t at this point... believe that there is a prima facie case made, that there’s a strong likelihood or reasonable inference.
“I appreciate counsel, without any invitation, indicating his reasons for exercising his peremptory challenges and based on the record I think that those are reasonable, but in any event, I don’t think there actually has been prima facie showing made based upon counsel’s simple assertion that just because they’re African-American and peremptory challenges were exercised that that’s sufficient. I don’t think that alone would be sufficient.
“So, however, I do want to caution the prosecutor that I am looking at this issue closely and that -- that I am a little concerned and that if this pattern should continue to emerge then I would consider that motion on behalf of the defense, so at this time that motion is denied.” (Italics added.)
2. Analysis
“Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) “The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal. [Citations.]” (People v. Silva (2001) 25 Cal.4th 345, 386.)
“The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]” (Lenix, supra, 44 Cal.4th at pp. 612–613.) “ ‘It is presumed that the prosecutor uses peremptory challenges in a constitutional manner.’ ” (People v. Zambrano (2007) 41 Cal.4th 1082, 1104, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22; People v. Turner (1994) 8 Cal.4th 137, 165 [“[t]here is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner”], overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
The threshold question here is whether Granderson made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. In 2005, the United States Supreme Court concluded that California courts had been applying too rigorous a standard in deciding whether defendants had made out a prima facie case under the first step of Batson. (See Johnson v. California, supra, 545 U.S. at pp. 166–168 [requiring a defendant to show a “strong likelihood, ” rather than a “reasonable inference, ” of discrimination is inconsistent with Batson].) “Instead, a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Id. at p. 170, italics added.) The record before us is ambiguous regarding the standard used by the trial court since the court referred to the lack of “a strong likelihood or reasonable inference.” (Italics added.) However, even if the trial court applied the wrong standard, reversal is not required. “Where, as here, it is not clear whether the trial court used the reasonable inference standard, rather than the recently disapproved ‘ “strong likelihood” standard, ’ we review the record independently.... [¶]... [¶]... [W]e sustain the trial court if, upon independently reviewing the record, we conclude the totality of the relevant facts does not give rise to an inference of discriminatory purpose. [Citation.]” (Howard, supra, 42 Cal.4th at pp. 1017, 1018.)
The fact that the prosecutor volunteered his reasons for the challenges does not make this a third-stage case. (People v. Howard (2008) 42 Cal.4th 1000, 1020 (Howard) [“if a court ultimately concludes that a prima facie showing has not been made, the request for and provision of explanations does not convert a first-stage Wheeler/Batson case into a third-stage case”].)
In Wheeler, the California Supreme Court gave examples of evidence relevant to establish a prima facie showing of bias: “[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic-their membership in the group-and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.” (Wheeler, supra, 22 Cal.3d at pp. 280–281, fn. omitted.)
First, we note that Granderson premised his motion solely on the fact that J.G., D.S., and G.Z. were African-Americans. Both appellants are also African-Americans. Such a cursory showing is insufficient, standing alone, to raise an inference of discrimination. (People v. Hawthorne (2009) 46 Cal.4th 67, 79–80.) Appellants have not shown, and did not attempt to show, that the prosecutor used a disproportionate number of his peremptory challenges against African-Americans. The prosecutor only exercised three of the twelve peremptory challenges he ultimately exercised (25 percent) against African-Americans. Before J.G., D.S., and G.Z. were struck, the prosecutor had exercised seven other peremptory challenges, all of which were admittedly against prospective jurors who were not African-American. Furthermore, at the time J.G., D.S., and G.Z. were struck, three other African-American jurors remained on the panel. Appellants concede that these three African-American jurors in fact served on the jury in this case. Appellants do not contend that the prosecutor’s questioning of African-American prospective jurors differed in any manner from the prosecutor’s questioning of other prospective jurors. Nor do appellants point to any other circumstances giving rise to an inference that J.G., D.S., or G.Z. were challenged because of their race.
The prosecution had 20 peremptory challenges available, excluding challenges for alternates. (Code Civ. Proc., §§ 231, subd. (a), 234.)
Contrary to appellants’ suggestion, the fact that three African-Americans remained on the jury does undermine the inference of improper bias that appellants ask us to draw. (See People v. Cornwell (2005) 37 Cal.4th 50, 69–70, disapproved on other grounds by People v. Doolin, supra, 45 Cal.4th at p. 421 & fn. 22 [prosecutor’s challenge of “one out of two African-American prospective jurors does not support an inference of bias, particularly in view of the circumstance that the other African-American juror had been passed repeatedly by the prosecutor from the beginning of voir dire and ultimately served on the jury”]; People v. Gray (2005) 37 Cal.4th 168, 187–188.) Nonetheless, the fact that African-Americans remained on the jury is not conclusive. “ ‘[U]nder Batson, the striking of a single black juror for racial reasons violates the equal protection clause, even though other black jurors are seated, and even when there are valid reasons for the striking of some black jurors.’ [Citations.]” (People v. Fuentes (1991) 54 Cal.3d 707, 715, last brackets added.) Appellants also point out that the African-American jurors who were not challenged by the prosecutor “had characteristics which tended to make them reliably pro-prosecution.” This fact only undercuts any inference of group bias, indicating that the prosecution focused on factors other than race in deciding who to excuse.
Appellants also incorrectly maintain that the record showed no objective reasons for the challenges. In fact, the information elicited during voir dire showed readily apparent, race-neutral reasons for excusing all three of the challenged jurors. (See People v. Hawthorne, supra, 46 Cal.4th at p. 80 [“prosecutor’s race-neutral reasons for the excusals confirmed the trial court’s finding that there was insufficient evidence to permit the court to draw an inference that discrimination had occurred”]; People v. Smith (2005) 35 Cal.4th 334, 347–348 [prospective juror expressed sympathy for defendant]; Lenix, supra, 44 Cal.4th at p. 628 [negative experience with law enforcement]; Wheeler, supra, 22 Cal.3d at p. 277 & fn. 18 [relative convicted of crime “give[s] rise to a significant potential for bias against the prosecution”].) J.G. stated during voir dire that a number of family members had been accused of crimes. G.Z. stated that he had had a negative interaction with law enforcement. Although G.Z. claimed he could be impartial despite the episode, the prosecutor could still retain some doubt. D.S. expressed overt sympathy for appellants and expressed concerns about the fairness of the criminal justice system. Appellants themselves appear to concede that the existence of such obvious grounds for challenge negates any inference of bias. A “prosecutor is entitled to exercise a certain number of peremptory challenges simply on a suspicion that the juror will be unfavorable to his or her cause....” (People v. Pinholster (1992) 1 Cal.4th 865, 914, overruled on other grounds by People v. Williams (June 28, 2010, S029490) ___ Cal.4th ___ [2010 Cal.Lexis 5970].)
The totality of the relevant facts does not give rise to an inference of discriminatory purpose. The trial court therefore did not err in concluding Granderson failed to establish a prima facie case of discriminatory animus.
Appellants also urge a novel form of comparative juror analysis. Comparative juror analysis involves comparison of challenged prospective jurors and seated jurors. (Miller-El v. Dretke (2005) 545 U.S. 231, 241 [if “prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step”]; People v. Bell (2007) 40 Cal.4th 582, 600.) Here, however, appellants ask us to compare the challenged African-American prospective jurors not to those jurors actually seated, but to other prospective jurors who were challenged by the prosecution. Specifically, appellants argue that a prima facie case was established because “the minority individuals stricken share none of the obvious grounds for being stricken that the non-African American jurors who were stricken displayed.”
In the first instance, appellants made no request that the trial court conduct any such form of comparative analysis. Our Supreme Court has recognized the “inherent limitations” of attempting to conduct such an analysis on a cold appellate record. (Lenix, supra, 44 Cal.4th at p. 622.) “In the trial court... advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact.... [¶]... [¶] For these reasons, comparative juror evidence is most effectively considered in the trial court where the defendant can make an inclusive record, where the prosecutor can respond to the alleged similarities, and where the trial court can evaluate those arguments based on what it has seen and heard.” (Id. at pp. 622–624.)
Second, even if appellant’s factual premise were true, they cite no authority, and we know of none, that suggests all peremptory challenges must be exercised for one, uniform reason. In exercising challenges, the prosecution can do so for any legitimate reason, including reasons that are trivial, or that may not, in the reviewer’s eye “make sense.” “ ‘[A] “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]’ [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903, 924, last brackets added.) “ ‘A reason that makes no sense is nonetheless “sincere and legitimate” as long as it does not deny equal protection. [Citation.]’ [Citation.]” (People v. Cruz (2008) 44 Cal.4th 636, 655.) “A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citation.]” (People v. Mills (2010) 48 Cal.4th 158, 176.) “ ‘[E]ven a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.]” (Lenix, supra, 44 Cal.4th at p. 613.)
B. Sufficiency of the Evidence to Support Attempted Robbery Convictions
Next, appellants contend that their convictions for attempted robbery of Bagadi (§§ 211, 664; count two) must be reversed because there was insufficient evidence that Bagadi had constructive possession of the Smoke Shop’s property.
1. Standard of Review
In determining the sufficiency of the evidence, we “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citations.]” (People v. Johnson (1980) 26 Cal.3d 557, 576–577.) “Evidence, to be ‘substantial’ must be ‘of ponderable legal significance... reasonable in nature, credible, and of solid value.’ [Citations.]” (Id. at p. 576, brackets added.)
2. Analysis
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211, italics added.) The parties agree that there was no evidence that appellants took, or intended to take, any of Bagadi’s personal property. It is also undisputed that Bagadi did not own the Smoke Shop nor did he work as a Smoke Shop employee. We conclude, however, that substantial evidence supports the jury’s implied finding that Bagadi had constructive possession of the Smoke Shop’s property.
The prosecutor, in his closing argument, said: “When they went into that store, okay, they thought that Mr. Bagadi was the store clerk. He was not the victim. He did not have control over the property that they were trying to take. But what did they do? They go give me the money. Mr. Bagadi is like hey, I don’t know anything about any money. Take what you want. That’s an attempt because Mr. Bagadi did not own that property. They were intending to rob that store or the store clerk. Mr. Bagadi was not that guy. He just happened to be a patron, an unfortunate patron in the store on that day.” In our view, the People did not concede that Bagadi did not have constructive possession of the Smoke Shop’s property. The jury was instructed on constructive possession with respect to count two and there is no evidence in the record of any objection to that instruction.
The People concede that a possession requirement exists for the crime of completed robbery. But, the People also argue that they had no burden to show the Smoke Shop’s property was in Bagadi’s possession in order to convict appellants of attempted robbery. “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) Specifically, the People assert “appellants had the specific intent to rob Bagadi, believing he was the clerk in possession of the money and merchandise in the Smoke Shop. Their specific intent to rob, coupled with their actions in entering the store, pointing the gun at Bagadi, demanding the money, and actually taking the money and merchandise demonstrates their guilt of attempted robbery. But for the unknown fact that Bagadi was not actually the clerk, appellants did every act with the requisite intent to complete the crime.” “[W]hen commission of the substantive offense is factually impossible, a defendant may be convicted of an attempt to commit the offense when it is proven that he had the specific intent to commit the offense and did those acts he believed necessary to consummate it but failed to commit the statutory offense because, unknown to the actor, one or more of the essential elements of the offense were lacking.” (People v. Meyer (1985) 169 Cal.App.3d 496, 505; accord, People v. Rojas (1961) 55 Cal.2d 252, 257.) Thus, the People urge, the attempted robbery was complete once appellants entered the store, pointed a gun at Bagadi (believing him to be the store clerk), and demanded money, and they need not prove Bagadi actually or constructively possessed the Smoke Shop’s property.
Appellants concede that they intended to rob the Smoke Shop.
We need not address the merits of the above argument because the jury was properly instructed on a theory of constructive possession of the Smoke Shop property by Bagadi, and the record supports an implied finding that Bagadi had a sufficient relationship to the Smoke Shop property to be a robbery victim. “A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property.” (People v. Scott (2009) 45 Cal.4th 743, 749 (Scott).) “Section 211 reflects... the traditional approach that limits victims of robbery to those persons in either actual or constructive possession of the property taken.” (People v. Nguyen (2000) 24 Cal.4th 756, 764 (Nguyen).) “A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute. [Citations.] ‘[T]he theory of constructive possession has been used to expand the concept of possession to include employees and others as robbery victims.’ [Citation.] Two or more persons may be in joint constructive possession of a single item of personal property, and multiple convictions of robbery are proper if force or fear is applied to multiple victims in joint possession of the property taken. [Citation.]” (Scott, supra, at pp. 749–750, last brackets added & fn. omitted.)
The jury during deliberations sent a note to the court asking if “the phrase ‘attempt to take personal property’ in Count Two include property of the Smoke Shop or is it limited to the property of Mr. Bagadi.” In response the court provided a further instruction on the elements of robbery as follows: “A person may be robbed if property of a store or business is taken, even though he or she does not own the property and was not, at the moment, in immediate physical control of the property. If the facts show that this person was a representative of the owner of the property and that person expressly or implicitly had authority over the property, then that person may be robbed if the property of the store or business is taken by force or fear.”
“For constructive possession, courts have required that the alleged victim of a robbery have a ‘special relationship’ with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner. [Citations.]” (Scott, supra, 45 Cal.4th at p. 750.) If a nonemployee satisfies this test, it is irrelevant that the victim does not “have general authority to control the owner’s property in other circumstances.” (Id. at pp. 753–754.) However, “good motives alone cannot substitute for the special relationship needed to create a possessory interest in the goods.” (People v. Galoia (1994) 31 Cal.App.4th 595, 599 (Galoia), fn. omitted.) “By requiring that the victim of a robbery have possession of the property taken, the Legislature has included as victims those persons who, because of their relationship to the property or its owner, have the right to resist the taking, and has excluded as victims those bystanders who have no greater interest in the property than any other member of the general population.” (Scott, supra, 45 Cal.4th at pp. 757–758.)
Several cases illustrate the relationship that a robbery victim must have with the targeted property. In Nguyen, supra, 24 Cal.4th 756, employees of a computer assembly business were celebrating a birthday in their employer’s lunchroom. The husband of one of the employees was also present. (Id. at p. 758.) During the celebration, the defendants entered the lunchroom, brandishing weapons. The defendants ordered everyone to lie face down on the floor, bound their victims’ arms and legs, and then fled with approximately $400,000 worth of computer modules and memory chips from the business. (Ibid.) The Supreme Court reversed the defendants’ convictions for robbery of the husband. (Id. at p. 765.) The court observed: “[the husband] was a visitor to the business and was not in actual or constructive possession of the property taken from the business. None of the convictions for the robbery of [the husband], therefore, can be based upon evidence that property was taken from the business.” (Id. at p. 764.) Accordingly, the court concluded that the trial court erred in instructing the jury as follows: “ ‘To be a victim of robbery... a person need not own, possess, be in control of, or even have the right to possess or control the property sought by the perpetrator....’ ” (Id. at pp. 758–759, 765.)
In People v. Bekele (1995) 33 Cal.App.4th 1457 (Bekele), disapproved on other grounds by People v. Rodriguez (1999) 20 Cal.4th 1, 13–14, this division held that “there was substantial evidence of armed robbery of a property owner’s companion where the companion had implied authority to help stop a theft in progress....” (Bekele, supra, 33 Cal.App.4th at p. 1459.) In that case, Robert Jump and his coworker Paco Fernandez were operating a front-end loader in the course of their employment with the San Francisco Water Department. They saw the defendant burglarizing Jump’s pickup truck. Jump said to Fernandez, “ ‘Let’s stop’ ” and “ ‘There is somebody in my truck.’ ” Jump stopped the front-end loader and the two men approached the defendant from both sides of the truck. The defendant emerged from the truck on Fernandez’s side. Both Jump and Fernandez told the defendant to stop, Fernandez struck the defendant, and the defendant ran off, carrying a backpack that contained Jump’s property. Fernandez ran after the defendant, yelling “Stop, drop the bag, ” until the defendant turned and removed a firearm from his jacket. The defendant pointed the gun at Fernandez, causing him to freeze. The defendant, who was eventually located with the backpack containing items from Jump’s truck, was convicted of robbery of Fernandez. (Id. at pp. 1459–1460.)
On appeal, the defendant argued there was insufficient evidence that he robbed Fernandez because the stolen property was in Jump’s possession, not Fernandez’s, when the firearm was displayed. (Bekele, supra, 33 Cal.App.4th at p. 1461.) This division disagreed and affirmed the conviction, noting “ ‘[a] person must have an ownership interest in the property taken, or some representative capacity with respect to the owner of the property taken, or actual possession of the property taken, for the taking of the property to constitute a robbery.’ [Citation.]... [¶]... [T]he evidence demonstrated that Fernandez had a representative capacity with respect to Jump’s property, in that he had implied authority from Jump to take action to prevent its theft. When Jump saw his truck being burglarized, he said to Fernandez, ‘Let’s stop.’ The two of them acted in concert to interrupt the burglary: they simultaneously left the front-end loader to approach Jump’s truck, and both told [the defendant] to stop. The obvious implication was that Jump wanted Fernandez to help safeguard Jump’s property by putting a stop to the theft. Fernandez was acting in that representative capacity when he struck Bekele and then chased after him, yelling ‘Stop, drop the bag.’ ” (Id. at pp. 1461, 1462.)
The Bekele court distinguished Galoia, supra, 31 Cal.App.4th 595. (Bekele, supra, 33 Cal.App.4th at p. 1462, fn. 3.) In Galoia, the defendant entered a convenience store, selected a 12-pack of beer and a candy bar, and placed the items on the checkout counter. As the cashier rang him up, the defendant grabbed some cigarettes and left the store with the beer and candy. (Id. at pp. 596–597.) Mark Steadman, who was not an employee or agent of the convenience store, happened to be in the store collecting money from the video games he operated there. Steadman chased the defendant outside and asked him to stop. The defendant turned around and told Steadman he was going to “kick his ass.” After Steadman responded “come on, ” the defendant’s companion hit Steadman from behind. The defendant and his companion left with the beer. (Id. at p. 597.) In a divided opinion, the Fourth District Court of Appeal reversed the defendant’s robbery conviction. The majority emphasized that “no one from the store instructed Steadman to give chase, and there is no evidence Steadman was motivated by anything other than good citizenship.” (Id. at p. 598.) Accordingly, the majority rejected the theory that Steadman had been implicitly authorized to protect the store’s goods. The majority also rejected the People’s argument that the mutual benefit received from Steadman’s video games meant that Steadman had a legally recognized interest or right to control store property. The majority concluded that Steadman did not have a sufficient interest in the property to be a robbery victim. (Id. at p. 598.)
Appellants’ reliance on People v. Ugalino (2009) 174 Cal.App.4th 1060 (Ugalino) is misplaced. In Ugalino, the defendant was convicted of two counts of attempted robbery when he attempted to take marijuana belonging to a drug dealer and a gun was pointed at the drug dealer’s roommate, Rider, who happened to be present in the apartment at the time. The defendant’s conviction for robbery of Rider was reversed because Rider had an insufficient relationship with the targeted marijuana. (Id. at pp. 1062–1063, 1065.) The court noted: “It was undisputed that Rider did not have actual possession of the marijuana, and [the drug dealer] stored the marijuana locked in a safe in his bedroom. There was no evidence Rider, who had been living with [the drug dealer] for only three to four months, had access to the safe. In fact, Rider did not even have a key to the apartment.... [¶]... Rider and [the drug dealer] were simply roommates. Thus, Rider had no obligation to protect [the drug dealer’s] belongings. Furthermore, at the time of the robbery, [the drug dealer] was present to protect his own belongings and there was no evidence he expected Rider to assist him in that regard.” (Id. at p. 1065.)
Attempted robbery was charged as to both the roommate and the drug dealer because defendants were not successful in taking the marijuana. (See Ugalino, supra, 174 Cal.App.4th at p. 1063, 1062–1065.) The People did not argue, as they do here, that a victim of attempted robbery need not, in fact, possess the targeted property. (Id. at pp. 1064–1065.)
We find Nguyen, Ugalino, and Galoia distinguishable, and agree with the rationale of Bekele that “ ‘[a] person must have an ownership interest in the property taken, or some representative capacity with respect to the owner of the property taken, or actual possession of the property taken, for the taking of the property to constitute a robbery.’ [Citation.]” (Bekele, supra, 33 Cal.App.4th at p. 1461.) Unlike the drug dealer in Ugalino, Saleh was not present inside the store at the time the armed man pointed a gun at Bagadi and asked “where’s the money?” Likewise, the owner of the store was not present. Unlike the victims in Nguyen, Ugalino, and Galoia, Bagadi here was explicitly asked to “watch the store” by Saleh, the store’s general manager. Bagadi also testified that he had previously watched the store at the specific request of the owner himself. Thus, like the victim in Bekele, Bagadi was at least implicitly authorized to act in a representative capacity for the owner to protect the Smoke Shop’s property. It was only after appellants entered the store, pointed a gun at Bagadi and asked “where’s the money?”-thus after the attempted robbery was complete-that Bagadi claimed to be only a customer and indifferent to what appellants did in the store. If Bagadi disclaimed his authority to protect the Smoke Shop’s property, he did so only after the attempted robbery was complete.
C. Jury Instruction on Presumption of Innocence and Reasonable Doubt
Next, appellants argue that the trial court erred in instructing the jury on the presumption of innocence and reasonable doubt. Specifically, appellants maintain that the trial court erred by using CALCRIM No. 220, which provides in relevant part: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt.” (Italics added.) Appellants point to section 1096, which provides, in relevant part: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt.” (Italics added.) Appellants find prejudicial error in the trial court referring to “the People” rather than “the state” because “[b]y repeatedly telling the jury that the prosecutor does not merely represent the governmental authority of ‘the state, ’ but in fact is ‘The People’... ‘identification’ between the jury and the prosecutor is not merely fostered, but endorsed by the trial court issuing the jury instructions.” (Bolding omitted.)
The instruction given to the jury reads in full: “The fact that criminal charges have been filed against the defendants is not evidence that the charges are true. You must not be biased against the defendants just because they have been arrested, charged with crimes, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.” (Italics added.)
Similar arguments have routinely been rejected as meritless. (See People v. Whisenhunt (2008) 44 Cal.4th 174, 223 [rejecting contention that prosecution’s reference to itself as “the People” violated defendant’s constitutional rights]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1068 [reference “to the complaining party as ‘The People’ does not violate due process or other constitutional principles”]; People v. Romero-Arellano (2009) 171 Cal.App.4th 58, 70 [“there is no error in referring in the instructions to ‘the People’ ”]; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1181–1182 [rejecting argument that “the definition in CALCRIM No. 100 of ‘the People’ as ‘the attorney from the district attorney’s office who is trying this case on behalf of the People of the State of California’ improperly favors the prosecution”]; People v. Black (2003) 114 Cal.App.4th 830, 832 [rejecting argument that trial court erred by denying his motion to preclude prosecution from being called “The People”].)
We are not persuaded by appellants’ attempt to distinguish People v. Romero-Arellano, supra, 171 Cal.App.4th 58. Appellants concede that the court, in People v. Romero-Arellano, concluded that the use of the term “the People” in jury instructions was not error. Appellants do not persuasively explain how, if it is not error to use “the People” in jury instructions generally (id. at p. 70), it could be error to make the same reference in a single jury instruction on the presumption of innocence and reasonable doubt. Appellants simply claim that a different conclusion is compelled here because People v. Romero-Arellano did not address section 1096a. But, section 1096a does not support appellants’ argument that trial courts must instruct in the precise language of section 1096. Section 1096a merely provides: “In charging a jury, the court may read to the jury Section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.” (Italics added.)
Appellants’ argument is without merit and has been regularly and repeatedly rejected by every court in this state which has considered it. Therefore, we do not address the matter further.
D. Did the Trial Court Abuse its Discretion by Sentencing Granderson and Winters to the Same Terms?
Next, Winters argues that he should have received a shorter sentence than Granderson because of his willingness to enter a plea of no contest before trial.
1. Background
The parties agree that the prosecutor offered a plea agreement to appellants before trial. Winters was willing to plead no contest at the time of the preliminary hearing and be sentenced to a three-year term. However, the prosecution offered a “package deal” and Granderson apparently declined the offer.
At the time of sentencing, the trial court announced: “I’m going to set forth what my tentative decision is with respect to the defendants’ sentences, and give an opportunity to everybody, all sides, to comment with respect to the Court’s tentative decision. [¶] The Court’s tentative decision is to sentence each of the defendants to the same prison term of 10 years. And the Court calculates that sentence as follows, as to Count 3, the Court has selected the upper term of nine years plus one year for the arming clause, that gives a total of 10 years as to Count 3. [¶] As to Count 1 and Count 2, the Court’s inclination at this point is to run those concurrent with Count 3, all of the terms run concurrent. Since I’m going to run them concurrent with respect to counts 2 and 3[, ] I will give the full base midterm for those particular counts which would be with respect to the Count 1, which is robbery in the second degree. That would be a midterm of three plus one year, and with the attempted robbery Count 2, the 2 plus 1 years. So for Count 1 it would be four years. Count 2, three years to run concurrent with the 10 year term with respect to Count 3. That’s my inclination at this time. [¶] And the reason that... I believe that it is appropriate to sentence both defendants to the same term of imprisonment is that although I know counsel will argue with respect to why they may be treated differently, the Court does not see there to be a significant difference. The jury found both defendants guilty of all counts and the enhancements as well.... And the evidence does not suggest that one person was more culpable than the other as far as I can tell with respect to this. [¶]... [¶] And both defendants are very young. There’s maybe a couple of years between the two of them, and both have very similar past, I guess, records in that they do not have any significant adult -- I don’t know if they’ve any adult convictions. I know that Mr. Granderson apparently does have a prior juvenile history, but I don’t see there to be a significant difference between the two. [¶] So it’s my inclination that given the jury’s verdict that both should receive the same term of imprisonment.... I did, of course, look at the factors set forth in rule 4.421 (a) and (b), and there are no mitigating factors relating to the crime as to either defendants. There are -- there may be a mitigating factor with respect to the defendants in term of no significant prior convictions or institutional history as adults. [¶] On the other hand, the aggravating factors relating to the crime are several, including as indicated before, the significant injuries suffered by Mr. Bagadi, who was shot fleeing from an ongoing robbery. And so that is an aggravating factor, as well as the fact that the robbery incident appears based upon the evidence to show some planning and some sophistication on the part of the defendants in terms of how they executed this particular crime with attempting to conceal their identities, with respect to the way they wore the clothing, the bandanas across their face [sic] and the use of a getaway car and so forth.”
Winters’s trial counsel responded: “I tend to concur with the Court’s reasoning as to the evidence that came in during the jury trial that Granderson and Winters should be treated -- that their involvement was, in essence, the same as to the crime. [¶]... [¶] The reason -- and I want the Court really to consider this, that I believe Winters should be treated distinctly from Granderson is the fact that he was willing to resolve this case in the early stage of the litigation. And I’m on record as stating before the preliminary examination began that he was offered a three year term that he was willing at that time to accept his responsibility in this matter and resolve his case. [¶] So I think that seven additional years at 85 percent for being forced to do a trial that he did not want to participate in is unduly harsh punishment for being associated with Granderson, who wanted the trial apparently. So I’m asking the Court to give him low term on the first count and add a year for arming clause and whatever else runs concurrent so that he could have the benefit of that three year offer that he so plainly wanted to take. [¶] I just don’t think it’s right for one defendant to be forced, because it’s a package deal.... And now he’s going to prison for an extra years [sic] at 85 percent time for a trial he didn’t want to engage in.”
The trial court then stated: “[L]et me just say that with respect to whatever happens before trial in terms of the plea negotiations you may have with the District Attorney and whether or not it’s a package deal or not, all of those things I’m not really considering in terms of sentencing.... [¶]... [¶] The jury has decided that -- whether the case was weak or strong, the jury has made a determination that your client is guilty of these crimes. And when I look at the various factors between the two defendants I do not see that your client should be given the benefit of the fact that he had been offered a lower sentence just because he had been offered a plea that would have been a better plea for him.... [¶] So I understand your position, but it’s not something I’m considering as far as sentencing is concerned. I’m looking at purely the verdict, what occurred in this case and the various factors that I have already indicated which are all -- the mitigating and aggravating factors that are set forth in rule 4.421, although as you know, the Court is not bound by any of those, can find any factor with respect to making a determination as to what is the appropriate term in this case.” (Italics added.)
The following exchange then occurred on the record:
“[WINTERS’S DEFENSE COUNSEL]: May I just briefly respond? I appreciate everything the Court is saying about the jury made a verdict and you don’t have to consider plea bargaining and the reasons for that. But my point was, one, he was willing to accept that. And that does trigger a mitigating factor under the rules of court in sentencing that he was as a mitigating factor willing to accept responsibility early in the litigation process.
“And given the disparity between that and he was willing to resolve before it even got to the Superior Court level, before there was a preliminary examination, he was willing to take a three years, I think the seven years is harsh, and the Court ought to consider a mitigating factor a difference between him and Mr. Granderson, and he was wiling [sic] to resolve it.
“THE COURT: I understand, and I think that’s a good point. But nonetheless, the Court is going to maintain its position with respect to what I think is an appropriate sentence.” (Italics added.)
2. Analysis
At the time of appellants’ sentencing, former section 1170, subdivision (b), as amended (Stats. 2007, ch. 740, § 1, p. 3), provided in relevant part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” “ ‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms” [citation].... We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’ [Citation.]” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582, last brackets added; accord, People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) An abuse of discretion is shown when “the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) It is the defendant’s burden to “show that the sentencing decision was irrational or arbitrary.” (People v. Lai, supra, at p. 1258.)
California Rules of Court, rule 4.423(b)(3) provides that the defendant’s voluntary acknowledgement of wrongdoing “before arrest or at an early stage of the criminal process” is a mitigating circumstance. Winters argues that the trial court abused its discretion by failing to take his willingness to plead into consideration. Specifically, Winters argues that “[t]he Court made what was in effect a legal ruling, that Winters’[s] offer to plead guilty early on was not legally a factor to be considered in mitigation.”
The record does not support this argument. California Rules of Court, rule 4.409 provides: “Relevant criteria enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise.” In our view the record does not affirmatively show that the trial court failed to consider Winters’s willingness to plead as a mitigating factor pursuant to California Rules of Court, rule 4.423(b)(3). Read in context, it is reasonably clear that the trial court only refused to consider the prosecutor’s prior offer of a three-year deal by itself as indicative of Winters’s relative culpability. This was not error. (See People v. Cook (2007) 40 Cal.4th 1334, 1362 [“rejected plea bargains... do not bear on the defendant’s character, his prior record, or the circumstances of the crime, and therefore would not constitute proper mitigating evidence”].)
Before renumbering, the substance of this rule was found in California Rules of Court, former rule 409.
Winters’s reliance on People v. Burney (1981) 115 Cal.App.3d 497 (Burney) is misplaced. In that case, the trial court stated “ ‘The Court finds no circumstances in mitigation.’ ” (Id. at p. 505.) Accordingly, the reviewing court concluded that the presumption in former rule 409 had been rebutted. Because the reviewing court concluded that mitigating circumstances did, in fact, exist, the defendant was entitled to a new hearing on the question of mitigating and aggravating circumstances. (Ibid.)
Here, unlike Burney, the trial court not only did not find the absence of mitigating circumstances, but expressly recognized that Winters’s willingness to plead was a mitigating circumstance. The trial court merely concluded that such a circumstance did not change its assessment of the appropriate sentence. Winters has not shown that the trial court abused its discretion in imposing on Winters the upper term for count three. In his reply brief, Winters appears to concede as much.
E. Arming Enhancement as Applied to Count Three
Finally, appellants contend that the one-year arming enhancement (§ 12022, subd. (a)(1)) must be stricken with respect to count three because being armed with a firearm is an element of the offense of assault with a semiautomatic firearm (§ 245, subd. (b)). The People concede the point.
Section 12022, subdivision (a)(1), provides: “Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.” (Italics added.) Section 245, subdivision (b), provides: “Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.” (Italics added.)
Under the express terms of section 12022, subdivision (a)(1), it was error for the trial court to apply the one-year enhancement to count three because arming with a semiautomatic firearm is an element of the underlying offense. (See People v. Sinclair (2008) 166 Cal.App.4th 848, 855–856 [error to impose one-year arming enhancement when defendant convicted of assault with a firearm pursuant to § 245, subd. (a)(2)].) Accordingly, the judgments must be modified to strike the one-year arming enhancement (§ 12022, subd. (a)(1)) with respect to count three. (See People v. McGee (1993) 15 Cal.App.4th 107, 117 [sentence not authorized by Penal Code “must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court”].)
III. Disposition
Each appellant’s sentence is modified to reflect a total term of nine years on count three. On count three, the one-year enhancements imposed pursuant to section 12022, subdivision (a)(1) are stricken. The trial court is directed to prepare amended abstracts of judgment that reflect this ruling and to forward copies of the amended abstracts of judgment to the California Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: Simons, Acting P. J., Needham, J.