Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. 05CF3395
Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge.
Marleigh A. Kopas, 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, Steve Oetting and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
Defendant Otis Dandre Hart and fellow gang members robbed a series of gas stations, liquor stores, and convenience stores over the course of three days. A jury convicted defendant of 10 counts of conspiracy to commit robbery, 17 counts of second degree robbery, 10 counts of street terrorism, and 1 count of assault with a deadly weapon. The jury also found true defendant had committed the conspiracy, robbery, and aggravated assault counts for the benefit of a criminal street gang and that a principal used a firearm in 15 of the offenses, and that he personally used a firearm in 2 of the counts. The court sentenced him to 43 years in prison.
Defendant appeals, asserting prosecutorial misconduct, erroneous denial of his motion for new trial based on that misconduct, and cumulative prejudice. He also contends, and the Attorney General agrees as do we, the court made several sentencing errors. Additional relevant facts will be set forth in the discussion of these issues. The case is remanded for resentencing. In all other respects, the judgment is affirmed.
DISCUSSION
1. Prosecutorial Misconduct
Defendant contends the prosecutor committed reversible misconduct during cross-examination and closing argument. We address each in turn.
a. Cross-Examination of Defendant
(1) “Were They Lying” Questions
Eligio Hernandes testified that during the robbery of the FM Foodstore, defendant hit him twice near his eye with a pistol, hit him with his hand, and also kicked him with his foot. Hyung Ham testified during the robbery of the J.J. Liquor store, one of the robbers pointed a gun at his head. During cross-examination, defendant denied kicking or hitting Hernandes or putting a gun to Ham’s head and the prosecutor asked him if Hernandes and Ham were lying. Defendant contends this constituted prosecutorial misconduct.
The argument was forfeited by defendant’s failure to either object to the questioning forming the basis of his prosecutorial misconduct claim or request an admonition. “‘In order to preserve a claim of [prosecutorial] misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]’ [Citation.]” (People v. Parson (2008) 44 Cal.4th 332, 359.) But where the court immediately overrules an objection, the “lack of a request for an admonition in connection with the objection does not preclude assertion of the misconduct on appeal.... [Citation.]” (People v. Lindsey (1988) 205 Cal.App.3d 112, 116, fn. 1.)
Defendant concedes his “counsel failed to object specifically to the prosecutor[’s] ‘were they lying’ questions regarding Hernandes” but claims an objection would have been futile. He cites instances where the court overruled his other evidentiary objections. But none of these involved “were they lying” questions and do not show an objection to such questions would have been futile. In fact, when defense counsel did object to a “were they lying” question with respect to Ham, the court sustained the objection. Defendant failed to meet his burden of demonstrating futility. (People v. Panah (2005) 35 Cal.4th 395, 462.)
Even if he had established futility, there was no prosecutorial misconduct. Our Supreme Court has explained the method by which we must determine whether a testifying defendant may be asked if other witnesses were lying. “[C]ourts should carefully scrutinize ‘were they lying’ questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.” (People v. Chatman (2006) 38 Cal.4th 344, 384 (Chatman).)
Defendants with personal knowledge of their own actions who testify on direct examination that other witnesses are untruthful open the door to “were they lying” questions on cross-examination: “Although it is true that to ask one witness for an opinion regarding other witnesses’ credibility may be improper, in that such ‘were they lying’ questions might merely call for speculation from that witness, in the present case, defendant, who had personal knowledge of whether he abused these women in the manner to which they testified, opened the door to the prosecutor’s questions by testifying in his direct examination that these witnesses were untruthful. [Citation.]” (People v. Riggs (2008) 44 Cal.4th 248, 318 [on cross-examination, prosecutor properly asked defendant charged with murder committed in course of robbery whether former wives and girlfriends were lying when they testified he had abused them, and why they would do so].)
In People v. Tafoya (2007) 42 Cal.4th 147, 179, the Supreme Court concluded the prosecutor did not commit misconduct by asking the defendant a series of questions about whether a codefendant and an eyewitness were lying in their testimony. “Here, by choosing to testify, defendant put his own veracity in issue.... The prosecution’s questions allowed defendant to clarify his position and to explain why codefendant Wynglarz or eyewitness Gattenby might have a reason to testify falsely. The jury properly could consider any such reason defendant provided; if defendant had no explanation, the jury could consider that fact in determining whether to credit defendant’s testimony. [Citation.] Thus, the prosecution’s questions in this case ‘sought to elicit testimony that would properly assist the trier of fact in ascertaining whom to believe.’ [Citation.]” (Ibid.)
Here, defendant put his own veracity at issue by denying he kicked or punched Hernandes or put a gun to Ham’s head, contrary to their testimony. Asking him if Hernandes and Ham were lying allowed defendant to provide competent testimony that could legitimately assist the jury in resolving the issue of whose testimony was more credible.
Defendant maintains he did not know Hernandes and Ham and thus had no reason to know why they might lie. According to defendant, Chatman requires such knowledge in order to justify cross-examination as to whether a witness lied. We do not read Chatman’s holding so narrowly. Rather, Chatman held that “[a] defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken.” (Chatman, supra, 38 Cal.4th at p. 382.) Although it also noted that if the defendant knows the other witnesses well, he might also be able to explain why the witnesses would lie, Chatman did not require such knowledge before allowing testimony on whether a witness was lying. Rather, it concluded, “Any of this testimony could be relevant to the credibility of both the defendant and the other witnesses.” (Ibid.) Thus, Chatman is not limited to situations where the defendant knows the adverse witnesses personally.
(2) Failure to Report Duress
Defendant argues the prosecutor committed misconduct by asking him why he never asked his mother to tell the police or the district attorney that he was forced to commit the robberies. The contention lacks merit.
Defendant testified on direct examination that he lied to police following his arrest and never told them he was forced to participate in the crimes because he was scared of being labeled a snitch and retaliated against. He said he told his parents what happened when he was arrested and also told his attorney.
On cross-examination, defendant clarified that he told his mother when she first visited him in custody almost two years before trial that he was forced to commit the robberies. The prosecutor inquired whether, given the many court appearances since then, defendant had ever asked his mother if she had contacted the police to tell them he was “forced to do these robberies[.]” The court overruled an objection based on attorney-client privilege and “ma[d]e it clear [to the jury]... the burden of proof is on the People and the defense doesn’t really have to do anything. But the manner in which facts are developed, unless a privilege applies, is something that you can consider.”
After the court also overruled a relevancy objection to the prosecutor’s question whether he had ever asked his mother why she had not called the police, defendant answered, “She tell me to tell my lawyer.” He repeated the answer when the prosecutor inquired if he had asked his mother about contacting specific police departments or the district attorney’s office and said, “no, I did not ask all them questions.”
The Attorney General asserts any challenge to this line of questioning was forfeited because there was no prosecutorial misconduct objection or request for an admonition. We conclude defense counsel’s objection on relevancy and attorney-client privilege grounds sufficed to preserve the issues raised on appeal.
Defendant contends the questioning constituted misconduct because it implied his failure to discuss his defense with the prosecutor and law enforcement “meant he was fabricating his duress defense and he therefore was guilty as charged.” No misconduct occurred. “A testifying defendant who waived Miranda [v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] and spoke to the police can be impeached with postarrest silence that is inconsistent with the trial testimony [citation]....” (People v. Lindsey, supra, 205 Cal.App.3d at p. 116, fn. 2.)
In Lindsey, where the conviction was reversed based upon prosecutorial comment on defense counsel’s failure to mention an alibi defense to the district attorney or the police before trial, the defendant did not testify. (People v. Lindsey, supra, 205 Cal.App.3d at p. 117.) Here, defendant both spoke with the police after waiving his Miranda rights and testified at trial. Therefore, it was proper to impeach him with his postarrest silence because it was inconsistent with his trial testimony. Additionally, unlike Lindsey, there was no reference to defense counsel in this case.
Moreover, contrary to defendant’s claim, the questions did not “cross[] the line into privileged communication with counsel [or] shift[] the burden to the defense.” The prosecutor never asked defendant to divulge any privileged communications with his attorney or imply it was his burden to discuss his defense with the prosecution. Nor did he suggest defendant lied “about discussing his version of events with trial counsel” thereby inferring counsel “suborned perjury” (italics omitted) or otherwise did “something wrong or underhanded” in not having defendant or his mother directly contact the police or the district attorney. Defendant testified his mother told him to tell his attorney and that he did so. That does not infer his counsel suborned perjury. Neither does questioning defendant whether he asked his mother if she told the police or the district attorney. In any event, “[o]nce [defendant] freely chose to cooperate with the police and offer his version of the incident, the prosecutor was entitled to cross-examine him concerning his in-court testimony, which was inconsistent with prior statements or silence. [Citations.]” (People v. Poon (1981) 125 Cal.App.3d 55, 84.) That is the case here.
(3) Other Instances of Alleged Misconduct
Defendant cites two other examples of the prosecutor’s “reprehensible and deceptive [cross-examination] methods” (bold and capitalization omitted): (1) “wrongly accus[ing] [him] of changing his testimony” by stating “[y]esterday you told us Jerry told you” to hit Hernandes with the gun when in fact he had testified CB told him to do it; and (2) “improperly testif[ying] about [defendant’s] letter of apology he wrote at [a detective’s] suggestion” by making comments such as, “I haven’t seen the letter[,]” “On the tape I didn’t see you write a letter[,]” and “So you don’t have that letter here for the court today so we could read it?” (Italics omitted.) He concedes his “counsel did not object to these instances[]” or request an admonition but claims they “would have been futile” given the court’s “repeated refusal to sustain objections to other instances of prosecutor error[.]” We are not persuaded.
Defendant has not demonstrated the prosecutor engaged in prior misconduct or that the court erred in overruling his previous objections. This is therefore not a case where the prosecutor’s misconduct was so pervasive as to create a poisonous trial atmosphere, or where the trial court had made it clear, through repeated denials of objections and criticism of defense counsel in front of the jury, that objecting and requesting an admonition would be futile. (See People v. Hill (1998) 17 Cal.4th 800, 820-821.) By not objecting or requesting an admonition, defendant has forfeited his contentions in this regard.
For the first time in his reply brief, defendant argues that if we conclude these claims are forfeited, he received ineffective assistance of counsel. Generally, we will not consider issues raised for the first time in the reply brief. (People v. Lewis (2008) 43 Cal.4th 415, 536, fn. 30.) In any event, the claim lacks merit.
To prevail, defendant must show that counsel’s performance viewed objectively fell below prevailing professional standards and was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) To prove prejudice, defendant must demonstrate “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) “‘“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Citations.]’” (People v. Weaver (2001) 26 Cal.4th 876, 925.)
“‘“[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim [of ineffective assistance of counsel] on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
There is nothing in the record to show why defense counsel did not object to these instances or request an admonition; nor was he asked to explain his reasons. Although defendant asserts “there can be no reasonable claim of tactics,” he concedes that if defense counsel “continuously object[ed] to the prosecutor’s many errors he would run the risk of seeming to be an obstructionist using meritless objections to delay the trial..., and of emphasizing and underlining the improper information being conveyed to the jurors....” We thus reject the claim of ineffective assistance of counsel claim.
b. Closing Argument
Defendant challenges various statements made by the prosecutor during closing argument as constituting misconduct. No prejudicial misconduct has been shown.
(1)Fabricated Defense
Defendant contends misconduct occurred during closing argument when the prosecutor argued the duress defense was a story, “fairy tale,” and “red herring” generated by him.
A prosecutor commits misconduct by “accus[ing] defense counsel of fabricating a defense” and otherwise attacking the integrity of defense counsel. (People v. Bemore (2000) 22 Cal.4th 809, 846; see also People v. Hill, supra, 17 Cal.4th at p. 832.) But at the same time, a prosecutor may “vigorously attack” the deficiencies in the defense case and factual account as long as the attack is supported by the evidence. (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) “‘The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence [and]... to argue on the basis of inference from the evidence that a defense is fabricated....’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 430.) “An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper. [Citation.]” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.)
For example, the California Supreme Court upheld statements by prosecutors to the jury that defense counsel’s job was “to create straw men” and “to put up smoke” and “red herrings” (People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003) and that a “heavy, heavy smokescreen... has been laid down [by the defense] to hide the truth from you” (People v. Marquez (1992) 1 Cal.4th 553, 575-576). It has also ruled that a prosecutor’s comment accusing the defense of attempting to hide the truth, and his argument employing an “‘ink from the octopus metaphor’” were not misconduct because “the context was such that the jury certainly would understand it to be nothing more than urging [it] not to be misled by defense evidence.” (People v. Cummings, supra, 4 Cal.4th at p. 1302, fn. omitted.)
We reach a similar conclusion here. The comments cited by defendant reflect the prosecutor did nothing more than attack the defense evidence and argue, based on inferences from the evidence, that defendant’s duress defense was fabricated.
United States v. Sanchez (9th Cir. 1999) 176 F.3d 1214, 1224, a lower federal case cited by defendant, is not binding on California appellate courts. (See, e.g., People v. Zapien (1993) 4 Cal.4th 929, 989; Raven v. Deukmejian (1990) 52 Cal.3d 336, 352.) Additionally, although Sanchez held it was misconduct to call the defense a “sham” or “scam” directly (Id. at pp. 1224-1225), the prosecutor here did not use those terms and it is not misconduct to use less derogatory language to comment on the plausibility of a defendant’s testimony (see United States v. Birges (9th Cir. 1984) 723 F.2d 666, 671-672 & fn. 1 [not misconduct to call the defendant’s testimony “fabricated” and “figment[ ] of... imagination”]; People v. Turner, supra, 34 Cal.4th at p. 430). It is also distinguishable in that Sanchez reversed because the prosecutor both labeled the defense a sham and vouched for prosecution witnesses, neither of which was done in this case. (United States v. Sanchez, supra, 176 F.3d at p. 1224.)
(2) Accusing Defense Counsel of Fabricating Evidence
Defendant argues the prosecutor committed misconduct by accusing his counsel of fabricating evidence. During closing argument, the prosecutor challenged whether “[a stack of photographs brought in by the defense] came from [defendant’s] room? The only way we know is [defendant] said they did. It would have been really easy to corroborate that. Ask [the officer who found the photos of individuals giving gang signs]. Defense didn’t do that. [¶]... [A]sk yourself, why did the defense move these in? Pictures of his friends at proms, we don’t even know if they’re his friends.... There’s a lot of photos... that... defendant is not in.... These could have been collected over the last two years, generated so they could bring them in.” According to defendant, this improperly implied his counsel fabricated evidence.
But defendant forfeited the issue by failing to object or seek an admonition. (People v. Turner, supra, 34 Cal.4th at p. 430.) Even if it was preserved for appeal, the prosecutor never accused counsel of fabricating the evidence for trial. She suggested that, given the weakness of the defense evidence authenticating the photographs and the fact officers could have been called to corroborate defendant’s testimony but were not, defendant may have lied about the photographs being in his room prior to the robberies. It is not misconduct to “‘argue on the basis of inference from the evidence that a defense is fabricated.... ’ [Citation.]” (Ibid.)
(3) Misstating Evidence
Defendant asserts the prosecutor misstated defendant’s testimony about a red cap officers found in his bedroom. The cap had a “W” on it and is commonly worn by Piru gang members. In discussing the cap, the prosecutor erroneously stated defendant had testified it belonged to his deceased brother Paul: “Defense says, ‘It’s my brother’s.’ And guess what? He passed away. Well, that’s convenient, ‘cause guess what brother can’t come in and testify?” In actuality, defendant had testified the cap belonged to his living brother Chris.
The prosecutor’s misstatement of which brother the cap belonged to does not require reversal. “In evaluating a claim of prejudicial misconduct based upon a prosecutor’s comments to the jury, we decide whether there is a reasonable possibility that the jury construed or applied the prosecutor’s comments in an objectionable manner. [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 1019.) In doing so, we consider the context in which the statements were made, instructions given to the jury by the trial court, and any steps that were taken to cure the error. (People v. Bell (1989) 49 Cal.3d 502, 540; People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37.)
Here, although the court overruled a “misquoting the evidence” objection, it admonished the jury that attorney arguments are not evidence and that “[t]he evidence came from the witnesses. It’s in the form of physical evidence, and it’s in the form of stipulations. But counsel at the end of the trial have an opportunity to tell you what they think the evidence has shown and what its significance is, so I give the lawyers some latitude. [¶] Your collective memories and life experience will determine what, in fact, the evidence was.”
We presume the jury followed the court’s instructions. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.) Defendant has not rebutted the presumption.
(4) Shifting Burden of Proof
Defendant contends the prosecutor improperly shifted the burden to him by arguing he should have called certain witnesses to bolster his testimony. We disagree.
In defendant’s room, police found his school notebook covered with gang writing. Defendant denied putting the gang writing on the notebook, testifying that he shared a locker with others and that someone else had done it. He also testified the letters “YG” tattooed on his shoulders represented “Young Gardena,” not “Young Gangster” as testified to by a gang expert, and referred to his playing football at Gardena High School. According to him, other football team members also had that tattoo.
In her rebuttal argument, the prosecutor remarked that if defendant’s friends placed the gang graffiti on his notebook, “bring in the friends. If that’s true, why didn’t they bring in the friends and say, ‘I’m the one that wrote that on the binder?’ Because it’s not true.” The court overruled a defense objection that it was an “improper argument and misconduct to make that argument about evidence or failure to produce evidence by the defense,” but admonished the jury “that the burden of proof in this case rests exclusively on the People.”
Later, the prosecutor noted the defense’s failure to call members of defendant’s football team, stating “Gosh, if that’s Young Gardena, where’s the football player that’s going to come in and show us his tattoo? I waited. And then... I waited for one of the coaches to come in and talk about that fact.” Defendant objected and moved for a mistrial. The court denied the motion but again admonished the jury that the prosecution had the exclusive burden of proof.
A prosecutor may comment on a defendant’s failure to call logical witnesses. (People v. Chatman, supra, 38 Cal.4th at p. 407; see also People v. Wash (1993) 6 Cal.4th 215, 263.) “When the defendant has taken the stand... and offered a[]... defense in which he identifies other persons who could support his testimony, and those witnesses are available and subject to subpoena, there should be no question but that comment [on the failure to call those witnesses] is appropriate and permissible.” (People v. Ford (1988) 45 Cal.3d 431, 447.)
Defendant testified he shared a locker with others who may have written the gang graffiti on his notebook. He further testified the “YG” tattooed on his shoulders stood for “Young Gardena” and that other Gardena High School football team members had the same tattoo. Because defendant took the stand and offered a defense in which he identified others who could support his testimony, the prosecutor’s comment on his failure to call them as witnesses did not constitute misconduct. And although it is improper for a prosecutor to comment on a defendant’s failure to call a logical witness whose unavailability to testify has been established (see People v. Ford, supra, 45 Cal.3d at pp. 443-448 [to be considered unavailable, witness must assert privilege or the right against self-incrimination, counsel may stipulate to unavailability, or defendant “may satisfy the court that the witness cannot be called”]), there was no showing of unavailability in this case.
Defendant maintains it was error for the prosecutor to assume “facts not in evidence” when she stated “freshman football, tons of people on that team. Got to be a JV football team; tons of people on that team ‘cause you move from freshman to JV to varsity. Shoot, there’s got to be between 50 and 90 Gardena football players, not to mention a coach. Coach for freshman team, coach for JV team, coach for the varsity team.” But as the Attorney General points out, a prosecutor “‘during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522, 567.) That is what the prosecutor did, drawing on common experience to point out that high school football programs generally have many players and coaches.
(5) Misstating Law on Duress
In a related argument, defendant contends the prosecutor erroneously argued he “needed to prove his duress defense was reasonable.” (Italics omitted.) This occurred after the prosecutor’s comment about bringing in the friends who defendant claimed had written on his binder. In overruling the defense objection, the court admonished the jury “the burden of proof in this case rests exclusively on the People. They have to prove that... defendant is guilty beyond a reasonable doubt, and you shouldn’t find him guilty beyond a reasonable doubt unless they do, and the defense has no burden to do anything. [¶] However, this is argument. And logical comments can be made. But keep in mind that the burden of proof in this case is exclusively on the People. [¶] Go ahead counsel.” At that point, the prosecutor stated, “And noting on that, the defense brought [defendant] with this duress defense. He needs to show it’s reasonable. Generate a defense.”
We reject defendant’s claim because he waived the issue by failing to object. The waiver rule applies even where counsel arguably misstates the law during argument. (People v. Bell, supra, 49 Cal.3d at pp. 538-539.) Failure to object and request an admonition is excused only where to have done so would have been futile or an admonition would not have cured the harm caused by the misconduct. (People v. Hill, supra, 17 Cal.4th at p. 820.)
Without addressing futility, defendant summarily asserts “[t]he court’s admonition regarding the People’s burden of proof could not cure the error here, especially after it approved the prosecutor’s argument by telling her, in front of the jury, to proceed.” But the admonition was given prior to the prosecutor’s statement concerning duress and by telling the prosecutor to “[g]o ahead,” the court was referring to the argument about the gang writing on defendant’s binder, which we have already concluded did not constitute misconduct. Defendant has not persuaded us that an objection to the prosecutor’s statement about duress would have been futile or that a request for admonition would not have cured the harm.
Even if defendant had objected, he has not shown the requisite “reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Nor will we “‘lightly infer’ that the jury drew the most damaging... meaning from the prosecutor’s statement[].” (People v. Frye, supra, 18 Cal.4th at p. 970.)
The jury was instructed on the law of duress with CALCRIM No. 3402, which states, “[t]he People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find... the defendant not guilty of the crimes charged.” We presume “‘the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.]” (People v. Morales (2001) 25 Cal.4th 34, 47.) Defendant has provided us no reason to depart from the presumption that the jury followed the admonition to follow the law as set forth in the jury instructions, and that it used those instructions alone and not the prosecutor’s improper argument to reach its verdict. (See People v. Welch (1999) 20 Cal.4th 701, 773.) In sum, even if the prosecutor misstated the law concerning duress, defendant suffered no prejudice as a result.
2. Denial of Motion for Mistrial
Defendant argues the court erred in denying his motion for new trial based on the prosecutor’s comments on defendant’s failure to call certain witnesses. The contention does not persuade.
“We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] ‘A motion for mistrial is directed to the sound discretion of the trial court. We have explained that “[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.”’ [Citations.]” (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) In light of this authority, we reject defendant’s assertion the issue is subject to de novo review. The case he relies on, People v. Gordon (1990) 50 Cal.3d 1223, 1242-1243, overruled on another ground in People v. Edwards (1991) 54 Cal.3d 787, 835, involved whether the identification procedure in that case was unduly suggestive and unnecessary, not a motion for a new trial.
We have already concluded the prosecutor’s argument about defendant’s failure to call certain witnesses to support his claim the “YG” tattoo was common among Gardena High School football team members did not constitute misconduct because the law permits comments on a defendant’s failure to call logical witnesses. (People v. Chatman, supra, 38 Cal.4th at p. 407.) Such remarks do not improperly shift the burden of proof to the defense. (People v. Frye, supra, 18 Cal.4th at p. 973.) Because there was no prosecutorial misconduct, the court did not abuse its discretion in denying the mistrial motion.
3. Sentencing
a. Conceded Errors
The Attorney General agrees, as do we, the court made several errors in calculating defendant’s sentence.
(1) Street Terrorism Counts
The court erred by sentencing defendant to the “[m]iddle term of 3 [y]ear(s)” for the 10 street terrorism counts (counts 5, 9, 12, 15, 19, 23, 27, 30, 35, and 38). The mid-term for that offense is two years, not three years. (Pen. Code, § 186.22, subd. (a); all further statutory references are to this code.)
(2) Conspiracy Counts
Without imposing a sentence, the court stayed punishment for each of defendant’s 10 counts of conspiracy to commit robbery (counts 1, 6, 10, 13, 16, 20, 24, 28, 31, and 36). (§ 654.) This was error. Where section 654 applies to a particular count, the proper action is to impose the term normally applicable to the crime and stay the sentence. (People v. Deloza (1998) 18 Cal.4th 585, 592.)
(3) Gang Enhancements
Although the court properly stayed the gang enhancements tied to the 10 stayed conspiracy charges under section 654 (People v. Cole (1985) 165 Cal.App.3d 41, 53 [enhancement must be stayed where sentence on underlying count stayed under 654]), it incorrectly applied section 654 to stay the remaining 18 gang enhancements tied to the aggravated assault (count 4) and robbery counts (counts 2, 3, 7, 8, 11, 14, 17, 18, 21, 22, 25, 26, 29, 32, 33, 34, and 37).
Section 12022.53, subdivisions (e)(1) and (e)(2) required the court to impose and then stay the section 186.22, subdivision (b) enhancements attached to the 15 robbery counts carrying vicarious gun use enhancement terms (counts 2, 3, 7, 8, 11, 14, 21, 22, 25, 26, 29, 32, 33, 34, and 37). (See § 12022.53, subd. (e)(2) [prohibiting enhancements under both section 12022.53, subdivision (e) for vicarious use of a firearm during a gang-related offense and section 186.22, subdivision (b)].) Where, as here, an enhancement is barred by an overriding statutory prohibition, the correct procedure is to impose a sentence on the barred enhancement and then stay its execution under California Rules of Court, rule 4.447, not section 654. (People v. Lopez (2004) 119 Cal.App.4th 355, 364-365.)
Alternatively, the court had discretion to strike the gang enhancements under section 186.22, subdivision (g) “where the interests of justice would best be served.... ” (People v. Sinclair (2008) 166 Cal.App.4th 848, 855.) Thus, where, as here, gang enhancements and gang-related firearm use enhancements have been found true, the court must impose and then stay the gang enhancements under rule 4.447, unless it exercises its discretion to strike the enhancements under section 186.22, subdivision (g). (People v. Sinclair, supra, 166 Cal.App.4th at p. 855.) On remand, should the court choose the latter course, it must “specif[y] on the record and enter[] into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.” (§ 186.22, subd. (g).)
As to the two robbery convictions involving personal gun use (counts 17 and 18), the court was authorized to impose both a firearm use enhancement under section 12022.53, subdivision (b) and a gang enhancement under section 186.22, subdivision (b) because the jury found defendant “personally used... a firearm in the commission of the offense.” (§ 12022.53, subd. (e)(2); People v. Salas (2001) 89 Cal.App.4th 1275, 1281.) Additionally, no gun use enhancement was attached to the assault conviction (count 4). Thus, on remand, the court may impose the gang enhancements for counts 4, 17, and 18 but must run the terms concurrently because it imposed concurrent middle terms on those counts. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310-1311 [where sentence on underlying felony imposed to run concurrently, related enhancements must also run concurrently if not stricken].) In the alternative, the court may strike the enhancements under section 186.22, subdivision (g) but may not stay them. (People v. Lopez, supra, 119 Cal.App.4th at p. 364 [enhancement must be stricken rather than stayed when only basis is court’s “own discretionary sense of justice”].)
(4) Firearm Use Enhancements
For seven of the robbery counts (counts 3, 8, 18, 22, 26, 33, and 34), the court sentenced defendant to a concurrent 3-year term and struck the firearm use enhancements under section 1385. The sentence was unauthorized because section 12022.53, subdivision (h) prohibits the court from striking firearm use enhancements: “Notwithstanding [s]ection 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” (See People v. Thomas (1992) 4 Cal.4th 206, 212.)
As to counts 7, 11, 14, 17, 21, 25, 29, 32, and 37, the court erroneously sentenced defendant to a concurrent 3-year term for the robberies and a consecutive one-third the middle term of 10 years for the firearm use enhancements. Although section 1170.1, subdivision (a) requires subordinate prison terms to be calculated at one-third the middle term for the offense and one-third the middle term for any enhancement, this rule only applies to consecutive sentences. (§ 1170.1, subd. (a) [“when any person is convicted of two ore more felonies... and a consecutive term of imprisonment is imposed”].) It does not apply where, as here, the court selects concurrent terms for the underlying offenses. (People v. Mustafaa, supra, 22 Cal.App.4th at p. 1310; People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4.) The court should have imposed the full 10-year terms for the enhancements, as defendant acknowledges. (See People v. Garza (2003) 107 Cal.App.4th 1081, 1093-1094 [where section 1170.11 inapplicable, full 10-year enhancement under section 12022.53, subdivision (b) must be applied]; cf. People v. Moody (2002) 96 Cal.App.4th 987, 992-993 [where section 1170.11 applies, it requires reduction of section 12022.53, subdivision (b) enhancement attached to consecutive subordinate term to one-third of 10 year term].)
A related problem is the court’s imposition of consecutive terms for the section 12022.53, subdivision (b) enhancements. Section 12022.53 enhancements cannot be imposed as subordinate consecutive terms where, as here, the sentences for the underlying crimes are ordered to run concurrently. (People v. Mustafaa, supra, 22 Cal.App.4th at pp. 1310-1311.) At the same time, section 12022.53, subdivision (b) mandates that “[n]otwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years....” (See also People v. Palacios (2007) 41 Cal.4th 720, 725-726, 728 [noting the requirement of “an additional and consecutive” 10-year term]; People v. Shabazz (2006) 38 Cal.4th 55, 68].)
According to defendant, this conflict can be resolved if the court “impose[s] the full ten-year gun use enhancement consecutive to each three-year concurrent robbery term, for a total of thirteen years on each such count..., and then run[s] each of these thirteen-year terms concurrently to the count 2 principal term sentence of three years and the related ten-year consecutive gun use enhancement.” The Attorney General acknowledges that as an option but also notes the court could decide to “impose consecutive, subordinate sentences for the robbery counts and their accompanying firearm use enhancements[,]... calculated at one third the middle term for the underlying offense and one third the middle term for the firearm use enhancements.” Defendant disagrees, asserting that double jeopardy precludes the court from imposing a greater sentence on remand because his “original sentence, though unauthorized, is within legal aggregate limits and not a legally unauthorized sentence.” But these issues are not before us and we decline to address them. Defendant may raise these issues at his resentencing hearing. We vacate defendant’s sentence and remand the matter for resentencing.
b. Age
Defendant, who was 16 years old at the time of the robberies, contends the court erred in sentencing him to 43 years in prison without considering that sentences for “youthful offenders should be less punitive than... for those [18] and older who commit comparable offenses, because those under [18] are not adults with fully formed character and brain function and thus are less culpable.” Because defendant is to be resentenced, we need not decide the issue.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.