Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB043330, Bryan Foster, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Tellis Tywan Allen appeals from his conviction of five counts of second degree robbery (Pen. Code, § 211; counts 1, 2, 3, 5, & 9) and two counts of attempted second degree robbery (§§ 211, 664; counts 6 & 7) with true findings that he personally used a firearm during the commission of each offense (§ 12022.53, subd. (b)), that he had suffered a prior strike, prior serious felony, and three prior prison term convictions (§§ 667, subd. (a)(1), 667.5, subd. (b), 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He contends: (1) the evidence was insufficient to sustain his convictions for the robberies of Krissy Adkins and Carlynn Rayos in counts 1 and 4 because no property was taken by force or fear from their immediate presence; (2) the evidence was insufficient to sustain the true findings on the personal firearm use allegations in counts 1, 4, 5, and 7; (3) retrial on the personal firearm use allegations as to counts 2 and 5 though 7 was barred by principles of double jeopardy under the federal and state Constitutions; or, (4) in the alternative, his trial counsel provided ineffective assistance by failing to plead double jeopardy; (5) defendant was never tried on the truth of the prior strike allegation in connection with count 9; and (6) the aggravated term imposed for count 2 violated his right to a jury trial because the findings supporting the sentence were made by the trial court, not the jury. We agree that defendant’s retrial on the personal firearm use allegation was barred under section 1023, and the matter must be remanded for resentencing. We find no other prejudicial errors.
All further statutory references are to the Penal Code unless otherwise indicated.
Rayos’s name also appears in the record as Carolyn Rayos.
II. FACTS AND PROCEDURAL BACKGROUND
A. First Trial
Counts 1, 2, 4, and 5 alleged the second degree robberies of Krissy Adkins, Michelle Montano, Carlynn Rayos, and Delores Jefferson, respectively. Counts 6 and 7 alleged the attempted second degree robberies of Abel Velasquez and Nghiem Thi Nguyen, respectively. The jury in the first trial was unable to reach a verdict as to counts 1 and 4, and the evidence specifically relating to those counts will be set forth below in the discussion of the second trial. The jury found defendant not guilty of count 3, and evidence specifically relating to that count is therefore not set forth herein.
On the evening of February 14, 2004, defendant, Jerome Richardson, Joseph Richardson, and Lonnie Randolf arrived at a Denny’s restaurant in San Bernardino in a green Saturn. Defendant was wearing black gloves, a red bandanna, and a hooded sweatshirt. Several video cameras located inside the restaurant captured much of the incident on tape. The videotapes were played for the jury.
Defendant, Jerome Richardson, and Joseph Richardson are brothers, and Randolf is their cousin. Randolf’s name occasionally appears in the record as Randolph, and defendant’s name occasionally appears in the record as Alan.
Defendant, displaying a large handgun, jumped on the counter near the cash register and ordered everyone to get down on the floor. He pointed the gun at Denny’s employee Michelle Montano and demanded that she open the register. Montano took money from the cash register and gave it to defendant. The robbery of Montano was charged as count 2.
Defendant went to the kitchen area in the back of the restaurant, where he approached Denny’s employee Abel Velasquez, pointed the gun at Velasquez’s head, and demanded money. Velasquez did not give anything to defendant. Defendant pushed Velasquez toward the manager’s office and told Velasquez to open the safe. Velasquez told defendant he did not have the keys to the safe. The attempted robbery of Velasquez was charged as count 6.
Meanwhile, Joseph and Randolf remained in the front part of the restaurant. Randolf collected purses from several customers while Joseph appeared to supervise the events.
A customer at the restaurant, Nghiem Thi Nguyen, got under the table. Randolf approached her and demanded her purse. She told him she did not have a purse. The attempted robbery of Nguyen was charged as count 7.
Another customer, Delores Jefferson, also got down on the floor. Randolf approached her and took her purse, which she had left on her chair. Her purse and her cell phone were later recovered from the green Saturn. The robbery of Jefferson was charged as count 5.
When Ronald Rodas and his family arrived at the Denny’s restaurant on the night of February 14, two women came out of the restaurant and shouted at them not to go in. Through the glass door, Rodas saw a man, whose lower face was covered by a handkerchief, pointing a gun at the cashier. Rodas saw three people run out of Denny’s and get into a car. Rodas called the police and then followed the suspects’ car while he stayed on the line with the 911 operator until a police car began pursuit.
Officer Robert Richards participated in the pursuit. During the pursuit, a black and white backpack was thrown from the passenger side of the suspects’ vehicle. Officer Richards later retrieved the backpack and found that it contained a loaded firearm.
Officer Richard Peterson also participated in the pursuit. The speed of the pursuit reached 70 to 100 miles per hour, and the suspects’ vehicle veered into the opposing lane and went through stop signs without stopping. The driver, Jerome, got out of the car after it stopped, and Officer Peterson chased him for about 50 yards before catching him.
Officer Brian Harris retrieved the robbers’ clothing after their arrests and booked it into evidence. Jerome had been wearing a black jacket with a hood, pants, white tank top, and high-topped shoes or boots. Jerome had only 43 cents on him when he was arrested. Defendant had $23 in currency when he was arrested.
In a field lineup shortly after the robberies, Nguyen identified defendant as one of the robbers based on his red bandanna and black sweatshirt, and Rayos identified defendant, based on his clothing, as the robber she had seen behind the counter. In a search of the Saturn, the police recovered the purses belonging to Rayos, Jefferson, and Adkins. $161 was found on the floor of the vehicle.
The jury found all four defendants guilty of counts 2, 5, 6, and 7 and not guilty of count 3. The jury found true as to counts 2, 5, 6, and 7 that a principal was armed with a firearm. (§ 12022, subd. (a)(1).) The jury was unable to reach a verdict as to counts 1 and 4 and as to the allegations that defendant personally used a firearm (§ 12022.53, subd. (b)) in all counts, and the trial court declared a mistrial as to those counts and allegations.
B. Bifurcated Trial on Prior Conviction Allegations
In a bifurcated proceeding after the first trial, the court tried the prior conviction allegations after defendant waived a jury trial of those allegations. The court noted that two counts and the firearm use allegations were still pending, and the court stated, “For the purposes of our hearing today, it’s my understanding, counsel desires that the Court conduct the court trial regarding . . . the issue of whether or not the defendant sustained the priors that were alleged in the Information. They include a strike that’s been alleged as a strike and it’s also alleged as a five-year prior. And there’s a one-year prior prison term pursuant to [section] 667.5[, subdivision] (b) that’s been alleged. [¶] And the decisions of the Court today would be applicable to any of the felony counts that are charged in this Information.” The court asked counsel to stipulate that the findings would apply to the “two counts that have not yet resulted in final adjudication by a trier of fact,” and counsel did so. Following the hearing, the trial court found true the allegations that defendant sustained a prior conviction for attempted robbery and found that the conviction was a strike and a serious or violent felony. The trial court also found true that defendant had suffered three prior prison term convictions.
C. Second Trial
On August 8, 2005, in a new case, defendant was charged with the robbery (§ 211) of Shelby Martin with a special allegation that defendant personally used a handgun (§ 12022.53, subd. (b)). The People moved to consolidate the new case with the previous case, and the trial court granted the motion. In October 2005, a third amended information was filed which consolidated the new charge and firearm use allegation with the previous case; the robbery count relating to Martin became count 9.
Krissy Adkins was working as a waitress at the Denny’s restaurant on February 14, 2004. While she was at the counter area, a man jumped onto the counter with a gun, pointed it at the hostess, and ordered her to open the register and give him the money. Adkins ran to the center station and got down on the floor. The man was dressed in a black hooded sweatshirt, his face was covered with a bandanna, and he was pointing a gun at the hostess. She saw another robber walking around the tables telling everyone to get down and be quiet. Adkins testified that she did not get up because she saw the man with the gun, and she feared being shot. Adkins had left her black purse, which had a picture of Marilyn Monroe on the side, on a shelf in the back of the restaurant toward the kitchen about 15 feet from where she was lying. After the robbers left, she learned her purse had been taken.
Carlynn Rayos was also working at the Denny’s restaurant on February 14, 2004. She saw someone behind the cash register and was about to tell the person he was not supposed to be there when a customer told her to get down. The man behind the register, who was dressed in red and black and who had something red on his face, started screaming for the hostess to open the register. Rayos was afraid that if she did not stay out of the way, she would be shot. After the robbers left, Rayos discovered her purse, which had been in the back area by the kitchen, was missing. Rayos identified defendant in a field showup the night of the robbery as the person who had the gun behind the cash register.
Shelby Martin was a customer at the Denny’s restaurant on February 14. She saw three men enter the restaurant wearing bandannas over their mouths and yelling at everyone to get down. One of the men, wearing a blue bandanna, knocked her down and grabbed the purse she had been holding. The purse, which bore an image of the cartoon character Snoopy, belonged to Martin’s daughter. Martin saw another man holding a gun go over the counter. The purses of Adkins’s, Rayos’s, and Martin’s daughters were all found in the green Saturn.
In the retrial, the jury found defendant guilty of robbery (§ 211) in counts 1, 4, and 9, and the jury found true the allegations in counts 1, 2, 4, 5, 6, 7, and 9 that defendant personally used a firearm (§ 12022.53, subd. (b)).
D. Sentence
The trial court stated that count 2, second degree robbery (§ 211), was the principal count and imposed the aggravated five-year term for that count, which the court doubled under sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1). The court imposed a consecutive 10-year enhancement for personal use of a firearm as to that count. (§ 12022.53, subd. (b).)
For each of counts 1, 4, 5, and 9 (§ 211), the court imposed a consecutive two-year term (one-third the middle term, doubled) plus a three-year four-month firearm use enhancement. For each of counts 6 and 7 (§§ 664, 211), the court imposed a consecutive one-year four-month term (one-third the middle term, doubled) plus a three-year four-month firearm use enhancement. The court imposed a consecutive five-year enhancement for the prior serious felony under section 667, subdivision (a)(1), and a consecutive one-year enhancement for each of the three prison term priors under section 667.5, subdivision (b). Defendant’s total sentence was 58 years eight months.
III. DISCUSSION
A. Sufficiency of Evidence to Support Convictions of Robberies of Adkins and Rayos
Defendant contends the evidence was insufficient to sustain his convictions for the robberies of Adkins and Rayos in counts 1 and 4. He argues that no evidence established the required element that property was taken by force or fear from their immediate presence because their purses had been taken from a separate room in the restaurant about 15 feet from where they were lying on the floor.
1. Standard of Review
When a criminal defendant challenges the sufficiency of the evidence on appeal, “‘“we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]”’” (People v. Wilson (2008) 44 Cal.4th 758, 806.)
2. Analysis
Robbery is the taking of personal property in the possession of another from his or her person or immediate presence, and against his or her will, accomplished by means of force or fear. (§ 211) “‘“[A] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.”’ [Citations.]” (People v. Hayes (1990) 52 Cal.3d 577, 626-627 (Hayes).) There is, however, no requirement that the victim be aware his or her property is being taken from his or her presence by force or fear. (People v. Jackson (2005) 128 Cal.App.4th 1326, 1330-1331 [robbery was established even through the victim did not know his property had been taken until after the defendant fled].)
In Hayes, the defendant had assaulted and killed a hotel manager in a guest room 107 feet from the office and living area from which the defendant then took cigarettes and cash. (Hayes, supra, 52 Cal.3d at pp. 628-629.) The court reversed the defendant’s robbery conviction because of prejudicial instructional error but nonetheless found that a “reasonable finder of fact could conclude . . . that the property was not so distant as to be beyond the victim’s control and protection . . . .” (Id. at p. 629.) The court in People v. Webster (1991) 54 Cal.3d 411, 440, stated the principle another way, holding that “[t]he zone of immediate presence includes the area ‘within which the victim could reasonably be expected to exercise some physical control over his property.’” In that case, the court held that the immediate presence element could be met when the murder scene was a quarter mile from the stolen vehicle because “[t]here was no evidence that [the victim] was too far away to perceive and resist an attempt to seize the vehicle.” (Ibid.)
Recently, in People v. Gomez (2008) 43 Cal.4th 249 (Gomez), the court held that the immediate presence element may be satisfied by events during the as transportation phase as well as during the caption phase of a robbery. (Id. at p. 258.) There, the defendant took property from a restaurant, the owner arrived at the scene, and the defendant left the restaurant and drove away with the property. The owner followed from 100 to 150 feet away while speaking to a police dispatcher, and the defendant fired two shots at the owner. The court held that this evidence satisfied the requirement that property be taken from a person’s “immediate presence” because the defendant forcibly resisted the owner when fleeing with the property. (Id. at p. 265.) The court stated that “‘property may be found to be in the victim’s immediate presence “even though it is located in another room of the house, or in another building on [the] premises.”’” (Id. at p. 257.) The court in Gomez relied on Hayes, Webster, and other cases in which evidence had been sufficient to support the “immediate presence” element of robbery when property had been taken from “an area in which the victim[s] could have expected to take effective steps to retain control over [their] property.” (Gomez, supra, at p. 258; see also People v. Harris (1994) 9 Cal.4th 407, 420-421 [robbery was established when the defendant took property from a home and office while the victim was forcibly restrained in a car outside].)
Here, Adkins’s and Rayos’s purses were taken from a room only about 15 feet away from where they were lying on the floor. That distance was far less than the distances found to constitute immediate presence in the cases discussed above. Both victims testified they remained on the floor because they feared being shot; that testimony established the element of force or fear. The People were not required to establish they were aware at the time their purses were being stolen. (People v. Jackson, supra, 128 Cal.App.4th at pp. 1330-1331.) We conclude the evidence was more than sufficient to support defendant’s conviction of the robberies of Adkins and Rayos.
B. Sufficiency of Evidence of Personal Firearm Use
Defendant contends the evidence was insufficient to sustain those true findings of personal firearm use in the robberies of Adkins, Rayos, and Jefferson and the attempted robbery of Nguyen. Defendant concedes the evidence showed he pointed his firearm directly at Montano and Velasquez; he contends, however, he did not use his firearm against Adkins or Rayos because he did not approach those victims or even know they were potential victims, and Randolf was the one who had taken property from Jefferson and attempted to steal from Nguyen.
1. Standard of Review
“Whether a defendant used a firearm in the commission of an enumerated offense is for the trier of fact to decide. [Citation.] We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.)
2. Analysis
A true finding on an enhancement under section 12022.53, subdivision (b) requires the intentional display of a firearm as an aid in completing an essential element of the charged offense. (In re Tameka C. (2000) 22 Cal.4th 190, 197.) As the court stated in People v. Masbruch (1996) 13 Cal.4th 1001, 1012, “A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one if it essential elements.” Section 12022.53, subdivision (b) does not, however, require that the defendant point or aim his weapon at specific victims during an invasion robbery. Instead, to find the enhancement allegation true, the jury was required to find that defendant intentionally did one of the following during the robbery: (1) display the firearm in a menacing manner; (2) hit someone with the firearm; or (3) discharge the firearm. The evidence established beyond dispute that defendant displayed his firearm in a menacing manner.
Adkins testified she hit the floor when she saw a man with a red bandanna and a hooded sweatshirt point “a pretty big gun” at Montano and yell, “Give me the money.” She did not get up because she feared being shot. Rayos identified defendant as the robber she had seen behind the counter wearing black clothes and something red on his face, screaming for Montano to open the cash register. Rayos also testified she feared being shot. Jefferson likewise saw defendant point his gun at Montano. Moreover, the surveillance videotape of the incident corroborated various witnesses’ testimonies that defendant displayed the firearm in a menacing manner.
The fact that defendant was not the robber who personally seized Jefferson’s property and attempted to obtain property from Nguyen is irrelevant. Three robbers invaded the restaurant during business hours and, acting in concert, ordered the patrons and employees to the floor. Despite defendant’s characterization of the events, it was not a situation in which three robbers independently robbed individual patrons. Rather, defendant’s brandishing of the firearm was a means of controlling all the victims and thereby facilitating the other robbers’ activities. We conclude the evidence was amply sufficient to support the finding of personal firearm use in the robberies of Rayos, Adkins, and Jefferson and the attempted robbery of Nguyen.
C. Double Jeopardy
The jury in the first trial reached a deadlock as to the personal firearm use allegations (§ 12022, subd. (a)(1)) as to counts 2 and 5 through 7 but found true the lesser included allegations that a principal was armed with a firearm (§ 12022.53, subd. (b)) as to those counts. Citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)and People v. Seel (2004) 34 Cal.4th 535 (Seel), defendant contends the retrial of the firearm use allegations in counts 2 and 5 through 7 was barred by double jeopardy principles after the jury in the first trial deadlocked on those allegations because of the jury’s true findings on the lesser included principal-armed allegations.
The California Supreme Court has granted review in two cases that raise similar issues. In People v. Anderson (2007) 149 Cal.App.4th 183, review granted July 11, 2007, S152695, the court granted review as to “[w]hether federal and state double jeopardy principles allowed a retrial of an allegation under the One Strike law (Pen. Code, § 667.61) upon which the jury deadlocked and, if so, whether such a retrial could encompass only the allegation or must also encompass the underlying offense of committing a lewd act on a minor under 14 (Pen. Code, § 288, subd. (a).)” In Porter v. Superior Court (2007) 148 Cal.App.4th 889, review granted July 11, 2007, S152273, the court granted review as to the following issue: “Do double jeopardy principles preclude retrial of the allegation that an attempted murder was willful, deliberate and premeditated . . . or retrial of an enhancement for allegedly committing the crime for the benefit of a criminal street gang (Pen. Code, [§] 186.22, subd. (b)) if the trial court granted a motion for a new trial on those allegations because the jury’s verdicts were ‘contrary to . . . [the] evidence’ within the meaning of Penal Code section 1181, subdivision 6?”
1. Forfeiture
The People contend the double jeopardy issue has been forfeited because defendant failed to plead former jeopardy before the second trial. If a defendant fails to affirmatively plead former jeopardy, the issue is not preserved for review on appeal. (People v. Memro (1995) 11 Cal.4th 786, 821.) However, defendant has argued in the alternative that his trial counsel provided ineffective assistance by failing to raise the issue at trial. We will therefore exercise our discretion to address the issue on the merits. (See People v. Scott (1997) 15 Cal.4th 1188, 1201.)
2. Analysis
“The double jeopardy clauses of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and article I, section 15, of the California Constitution, guarantee that a person shall not be placed twice ‘in jeopardy’ for the ‘same offense.’ The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense. [Citations.] Under both federal and California law, greater and lesser included offenses constitute the ‘same offense’ for purposes of double jeopardy.” (People v. Bright (1996) 12 Cal.4th 652, 660-661 (Bright), overruled on other grounds in Seel, supra, 34 Cal.4th at p. 550, fn. 6.)
In Apprendi, the United States Supreme Court held: “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, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) The court further stated that “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an ‘element’ of the offense.” (Id. at p. 494, fn. 19.) The California Supreme Court has recognized that “Apprendi treated the crime together with its sentence enhancement as the ‘functional equivalent’ of a single ‘greater’ crime.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [criminal street gang enhancement].)
In Seel, supra, 34 Cal.4th 535, the defendant was charged with attempted premeditated murder under section 664. That section provides that for any crime punishable by imprisonment in state prison, an attempt to commit that crime shall be punished by a state prison term of one-half the length. However, “if the crime attempted is willful, deliberate, and premeditated murder,” the punishment shall be a life term. (§ 664, subd. (a).) The defendant was convicted as charged and sentenced to life in prison, but the Court of Appeal found insufficient evidence to support the premeditation finding and reversed and remanded the matter for retrial of the premeditation charge. (Seel, supra, at p. 540.)
The Supreme Court reversed as to retrial, concluding federal double jeopardy principles barred retrial of the premeditation charge once the Court of Appeal determined the original jury finding was not supported by substantial evidence. (Seel, supra, 34 Cal.4th at p. 541.) The court explained that, “[b]y ‘expos[ing] the defendant to a greater punishment than that authorized by the jury’s guilty verdict’ [citation], section 664[, subdivision] (a) is ‘the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.’” (Id. at p. 548.) In fact, the court noted, “‘[t]he defendant’s intent in committing a crime is perhaps as close as one might hope to come to a core criminal offense “element.”’” (Id. at p. 549.)
In People v. Fields (1996) 13 Cal.4th 289 (Fields), the California Supreme Court concluded that, under both the federal and state Constitutions, when a jury deadlocks on a greater offense but returns a verdict of conviction on a lesser offense, the legal necessity doctrine prevails and retrial of the greater offense is not barred. (Id. at pp. 299, 302-303.) However, the court further held that retrial is nevertheless barred by section 1023. (Fields, supra, at p. 307.) Although section 1023 does not mention greater offenses, the Fields court concluded that section 1023 expressly bars retrial for the same offense, and a later conviction for a greater offense necessarily includes a conviction for any lesser included offenses, including the one for which the defendant had already been convicted. (Fields, supra, at p. 306.) The court reasoned that permitting retrial of a greater offense would permit the state to begin with prosecution of a lesser offense and proceed up the scale. (Id. at p. 307.)
Section 1023 provides: “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.”
We find this authority controlling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) California’s constitutional protection against double jeopardy, as implemented by section 1023, barred further prosecution of the greater offenses and, consequently, precluded further trial of the enhancement allegations. (Fields, supra, 13 Cal.4th at p. 306.) The sentence enhancements under section 12022.53, subdivision (b) as to counts 2 and 5 though 7 must therefore be vacated and the matter remanded for resentencing on the lesser included enhancements under section 12022, subdivision (a)(1).
D. Trial of Strike Allegation as to Count 9
The robbery of Shelby Martin was added as count 9 in a third amended information filed after the first jury trial and after the trial court had found true the prior conviction allegations. Defendant contends he never received a trial on the prior strike allegation as applied to count 9.
Prior convictions must be pleaded and proved (§§ 667, subds. (c) & (e)(1)-(2), 1170.12, subds. (a) & (c)(1)-(2)) beyond a reasonable doubt (People v. Tenner (1993) 6 Cal.4th 559, 566-567) at trial (§§ 1025, 1158 ; People v. Wiley (1995) 9 Cal.4th 580, 589). In People v. Tindall (2000) 24 Cal.4th 767 (Tindall), on which defendant primarily relies, the court held that the information could not be amended to add prior convictions after the jury has been discharged. (Id. at p. 776.) Tindall is distinguishable because here, in contrast, the information was amended to add an additional substantive charge when the prior conviction had already been proved, and, as we discuss below, the People were not required to plead and prove the allegation separately as to each count.
Section 1025 provides:
Section 1158 provides:
Although the case was not cited by either party, we find People v. Riva (2003) 112 Cal.App.4th 981 (Riva)helpful to our analysis. In that case, the defendant challenged a 25-year-to-life enhancement imposed under section 12022.53, subdivision (d), because the enhancement was not pled as to the count (shooting at an occupied vehicle) for which it was imposed. The enhancement was pled as to two other counts (voluntary manslaughter and assault with a firearm), and the jury found the allegation true as to all three counts. (Riva, supra, at p. 1001.) The court affirmed the enhancement, stating: “Section 12022.53, subdivision (j) states: ‘For the penalties in this section to apply, the existence of any fact required under subdivision . . . (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.’ (Italics added.) Thus, subdivision (j) only requires the facts necessary to sustain the enhancement be alleged in the information; it does not say where in the information those facts must be alleged or that they must be alleged in connection with a particular count in order to apply to that count. In the present case the prosecution complied with the literal language of the statute by alleging the enhancement in the information as to the charges of attempted voluntary manslaughter and assault.” (Ibid., fn. omitted.)
The court stated that although the issue was close, imposing the challenged enhancement had been proper because the prosecution had pleaded the enhancement in other counts. (Riva, supra, 112 Cal.App.4th at p. 1002.) The court explained, “Had the Legislature intended an enhancement under section 12022.53 be specifically pled as to each count the prosecution sought to enhance, it knew how to say so clearly.” (Ibid.) The court observed that the defendant had been on notice he had to defend the enhancement allegation as to the other counts, and the failure to plead the enhancement as to one count did not interfere with his ability to contest the factual basis for the enhancement. (Id. at p. 1003.) Moreover, the court found it doubtful whether the failure to allege the enhancement as to one count affected his decision whether to enter a plea bargain because the other counts that did allege the enhancement posed a risk of greater punishment. (Ibid.) The court concluded, “[A]lthough the better practice is to allege the enhancement with respect to every count on which the prosecution seeks to invoke it, the failure to do so is not fatal so long as the defendant has fair notice of his potential punishment, which he did in this case.” (Id. at p. 985.)
Although the manner in which the issue arose was different in the present case from that in Riva, that court’s analysis is equally applicable to the present circumstances. The strike sentencing provisions of section 667, subdivisions (b) through (i) apply when “a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), . . .” (§ 667, subd. (c), italics added; see also § 1170.12, subd. (a).) Like the statutes at issue in Riva, nothing in the three strikes statutes requires that the prior convictions be pleaded and proved separately as to each count. Here, as in Riva, defendant was on notice that he had to defend the enhancement allegation as to other counts.
Moreover, in response to defendant’s contention that the firearm enhancement was not proved as to count 9, we note that the right to a jury trial of prior conviction allegations is statutory, not constitutional. (People v. Epps (2001) 25 Cal.4th 19, 23.) “[W]hen ‘the right to a jury trial . . . is purely a creature of state statutory law,’ denial of that right is governed by [People v. Watson (1956) 46 Cal.2d 818, 836]. [Citation.]” (People v. Wilen (2008) 165 Cal.App.4th 270, 289, fn. omitted.) More specifically, the right to a jury trial on prior conviction allegations is purely a statutory right that may be forfeited by failure to object. (People v. Vera (1997) 15 Cal.4th 269, 278, abrogated on other grounds as stated in People v. French (2008) 43 Cal.4th 36, 47, fn. 3.) Here, defendant failed to raise any objection in the trial court.
Finally, we conclude that any error was harmless. “No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.” (§ 960.) Defendant does not contend that the evidence was insufficient to support the trial court’s true findings as to the prior conviction allegations as applied to the other counts. It would be little more than an empty gesture to return the matter for presentation of the same evidence that was already successfully presented.
E. Aggravated Term for Count 2
Defendant contends the aggravated term imposed for count 2 violated his right to a jury trial because the findings supporting the sentence were made by the trial court, not the jury.
The trial court stated it was imposing the aggravated term for count 2 because: (1) there was a threat of great bodily harm; (2) the conduct disclosed a high degree of cruelty, viciousness, and callousness; (3) defendant occupied a position of leadership; (4) the crime involved a taking or attempted taking or damage of great monetary value; (5) defendant engaged in violent conduct; (6) defendant had numerous prior convictions as an adult, and his crimes were of increasing seriousness; (7) defendant had served three prior prison terms; (8) defendant was on parole at the time of the crime; and (9) defendant’s prior performance on probation or parole was unsatisfactory. The jury did not make factual findings supporting any of those factors. (Although the first jury did find true the aggravating factors that the crime had involved planning and that one or more of the victims was particularly vulnerable, the trial court rejected the vulnerability factor as a basis for the upper term sentence.)
A single circumstance in aggravation found by the jury, admitted by the defendant, or based on a prior conviction, makes the upper term the statutory maximum and allows the trial court to find additional circumstances in aggravation by a preponderance of the evidence without a further jury determination. (People v. Black (2007) 41 Cal.4th 799, 812-820.) Here, four of the nine factors on which the trial court relied related to defendant’s prior convictions. Under Black, there was no error in imposing the aggravated term for count 2. As defendant recognizes, Black is binding on this court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
IV. DISPOSITION
The enhancements under section 12022.53, subdivision (b) as to counts 2 and 5 through 7 are vacated and the matter is remanded for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.
We concur: MCKINSTER, J., MILLER, J.
“(b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, . . . or by the court if a jury is waived.
“(c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury.”
“Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the [trier of fact] must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. . . . If more than one previous conviction is charged a separate finding must be made as to each.”