Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. Nos. TA078462/078384. Gary R. Hahn, Judge.
Iver Bye, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant Juan Morales appeals following his conviction of three counts of robbery, two counts of possession of a firearm by a felon, kidnapping for ransom, and accessory after the fact. He contends: (1) there was insufficient evidence of intent to support the robbery convictions; (2) the trial court improperly instructed the jury and trial counsel was ineffective in failing to request two instructions; (3) the gang enhancement was not supported by substantial evidence; (4) the trial court should have corrected sua sponte prejudicial prosecutorial misconduct; (5) sentence on some counts should have been stayed pursuant to Penal Code section 654; and (6) a gun use enhancement was improperly calculated. We affirm.
All further undesignated statutory citations are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established the following:
1. First Gutierrez Robbery and Felon in Possession of a Firearm (Counts 1 and 2)
At about 2:00 p.m. on February 15, 2005, Jose Gutierrez went to a friend’s home where he encountered defendant and codefendants Johnny Garcia and Daniel Marquez, all of whom Gutierrez knew from the neighborhood. Defendant questioned Gutierrez about a gun, which defendant said he had loaned to someone named Ruben; defendant accused Gutierrez and Ruben of selling the gun. When Gutierrez explained that he knew nothing about the weapon, defendant became angry and aggressive. He insisted that Gutierrez either return the gun or give defendant money. Gutierrez became afraid when defendant showed him a small caliber handgun. To diffuse the situation, Gutierrez offered to give defendant $100 and his watch to hold until Gutierrez could get the full amount defendant was demanding for the gun. Defendant took the money and the watch. As Gutierrez was leaving the house, Gutierrez saw Garcia taking stereo equipment out of Gutierrez’s truck. Defendant and the others never returned Gutierrez’s money, watch, or stereo equipment. Gutierrez did not report the incident to police out of fear.
Defendant, Garcia, and Marquez were jointly tried. The present appeal involves only defendant.
2. Second Gutierrez Robbery; Montalvo Robbery; Kidnapping for Ransom and
Attempted Murder; Possession of a Firearm by a Felon (Counts 3, 4, 5, 6, and 8)
Four days later, Gutierrez was in his room, located behind his parents’ home in Paramount, socializing with Pedro Montalvo and two female friends. At about 7:00 p.m., defendant, Garcia, and Marquez entered, uninvited, through the unlocked door. Defendant and Garcia had handguns drawn and Marquez was holding a sawed-off shotgun. Defendant and Garcia did most of the talking as they questioned Gutierrez about why he had not returned the gun or paid for it; Gutierrez reiterated that he had nothing to do with the gun and gave them some more money and a second watch. Garcia announced they were going to take Gutierrez and Montalvo with them and instructed Gutierrez to get his car keys. Garcia stated he would kill Montalvo if Gutierrez did not return. But instead of returning with the keys, Gutierrez locked himself in his parent’s house.
Montalvo testified that during the initial altercation, Garcia took Montalvo’s cell phone, but reassured him it would be returned “as long as everything went well.” When Gutierrez went to get his keys, Garcia held Montalvo at gunpoint in the driveway and threatened to shoot Montalvo if Gutierrez did not return within five minutes. Garcia took Montalvo’s social security card and driver’s license as “collateral, that if everything worked out right, if [Gutierrez] complied, that I was going to get all that back. If -- other than that then they knew where to find me if anything was . . . [¶] . . . [¶] . . . was said from my mouth, that if I was to ever say anything.”
When Gutierrez did not return, the three men forced Montalvo at gunpoint into a red Blazer which defendant drove; Garcia sat in the front passenger seat while Marquez was in back with Montalvo. Defendant and Garcia demanded that Montalvo give them directions to his mother’s home so that they could get more money, while Marquez reassured Montalvo that he had nothing to worry about as long as everything went well. At Montalvo’s mother’s home, Garcia followed Montalvo to the front door while defendant waited in the Blazer; Montalvo had been warned that defendant was going to have his gun trained on Montalvo and would shoot if Montalvo “tried anything.” When Garcia and Montalvo returned to the Blazer without money, Garcia hit Montalvo and complained that he had “messed up” by appearing nervous. After further threats, Montalvo pleaded for his life. The group returned to Gutierrez’s home, and Garcia became upset when he realized that Gutierrez was not there. In order to diffuse the situation, one of the women who had been with Gutierrez and Montalvo earlier that evening offered to get some methamphetamine. Montalvo’s hands were then duck taped, and Garcia hit Montalvo with the handgun several times and burned him with cigarettes. The woman and Montalvo pleaded for Montalvo’s life, and Defendant and his companions eventually left in search of drugs.
On the way back to Gutierrez’s house, defendant and Garcia smoked the methamphetamine. When they discovered that Gutierrez had not returned, they reiterated their threat to kill Montalvo, but eventually released him with a warning that Montalvo’s family would be killed if Montalvo talked.
When interviewed by Detective Daren Diviak, defendant admitted his participation in the events, including driving the Blazer used to kidnap Montalvo. Defendant maintained he was attempting to get money from Gutierrez because Gutierrez’s friend, Ruben, had borrowed, but failed to return defendant’s gun. Defendant explained he was “taxing” Gutierrez for Ruben’s debt; he did not really believe Gutierrez was responsible but defendant wanted money to buy methamphetamine.
3. Accessory After the Fact (Count 12)
Later the same evening, around 9:00 p.m., Eduardo and Cesar Gomez were driving elsewhere in Paramount when shots were fired in their direction. Cesar died of a gunshot wound to the head. Witnesses testified that codefendants Garcia and Marquez and one other Hispanic man approached the Gomez truck and flashed gang signs before the shooting. Garcia was identified as the shooter. A red Chevy Blazer picked up the three men and drove away.
Defendant admitted to sheriff’s deputies that he had been with Garcia, Marquez, and another man just before the shooting; Garcia and Marquez walked to the corner upon hearing that a rival gang member had been seen driving in the area; when defendant heard gunshots, he jumped into the Blazer and drove down the street until he saw the three men running; he stopped the Blazer so that they could get in, and then drove them away. Defendant knew that the three men had been involved with the shooting and were not victims.
4. Defense Evidence
In a February 21, 2005 interview with a sheriff’s deputy, victim Montalvo said that one of the assailants said, “T-R-U-C-H-A,” (an apparent gang reference) during the February 15 robbery. Two of defendant’s brothers testified that defendant was not a gang member.
DISCUSSION
1. There Was Sufficient Evidence of Intent to Support the Gutierrez Robbery
Convictions
Defendant contends that the robbery convictions were not supported by substantial evidence. As we understand his argument, it is not that there was insufficient evidence of a taking by force or fear; rather, it is that defendant was trying to recover his own property -- a gun he loaned to Gutierrez’s friend -- and his self-help negated the element of intent necessary for robbery. We disagree.
In addressing a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment and do not reassess the credibility of the witnesses. (Kraft, supra, 23 Cal.4th at pp. 1053-1054.)
The five elements of robbery are: (1) the victim had “possession of property of some value however slight;” (2) the property “was taken from” the victim’s “immediate presence;” (3) the property “was taken against the [victim’s] will;” (4) the “taking was accomplished either by force or fear;” and (5) the property “was taken with the specific intent permanently to deprive that person of the property.” (CALJIC No. 9.40; see also People v. Waidla (2000) 22 Cal.4th 690, 734 [intent to steal accompanying the use of force and fear is element of robbery].)
The intent to steal is ordinarily inferred when one person takes the property of another by force. (People v. Butler (1967) 65 Cal.2d 569, 573 (Butler), overruled on another point in People v. Tufunga (1999) 21 Cal.4th 935, 938 (Tufunga).) But a good faith claim of right to title or ownership of the specific property taken can negate the requisite element of intent to steal for both robbery and theft. (Tufunga, supra, 21 Cal.4th at p. 944; see also Butler, supra, 65 Cal.2d at p. 573.) In People v. Barnett (1998) 17 Cal.4th 1044, 1144 (Barnett) the court held, “given the obvious public policy reasons for strictly circumscribing the circumstances under which persons should be permitted to enforce their debt demands at gunpoint [citations], we conclude the defense is not available where the claimed debt is uncertain and subject to dispute.” It is also “not permitted where the claimed right to the property is rooted in a ‘notoriously illegal’ transaction. [Citations.]” (Ibid.)
Here, evidence that defendant believed Gutierrez and Ruben had taken defendant’s gun did not undermine the sufficiency of the evidence of defendant’s intent to steal because there was no evidence that defendant believed he had a claim of right to the specific property he took from Gutierrez -- two watches and money. That defendant believed he was out a gun was legally beside the point.
2. Trial Court Had No Sua Sponte Duty to Instruct on Theft as a Lesser Included Offense for the Montalvo Robbery
Defendant contends that the trial court erred in failing to sua sponte instruct on grand and petty theft as lesser included offenses of the robbery of Montalvo. He claims that from Garcia’s promise to return Montalvo’s social security card and driver’s license once Gutierrez complied with the thieves’ demands, the jury could reasonably have inferred that defendant did not have the requisite intent to permanently deprive Montalvo of his property at the time of the taking by force or fear; under this scenario, the offense was not a robbery, but merely theft. We disagree.
“Robbery is a form of theft, with the added elements of the application of force or fear while taking the property from the person or immediate presence of the victim.” (People v. Rush (1993) 16 Cal.App.4th 20, 23, disapproved of on another point in People v. Montoya (2004) 33 Cal.4th 1031, 1036, fn. 4.)
Common to both crimes is the element of intent to steal; i.e., to permanently deprive a person of property. (People v. Avery (2002) 27 Cal.4th 49, 52 [theft]; People v. Marshall (1997) 15 Cal.4th 1, 34 (Marshall)[robbery].) But to constitute a robbery, the intent to steal must exist either before or during the commission of the act of force; if the intent to steal arose after the victim was assaulted, the robbery element of stealing by force or fear is absent and the offense is theft, not robbery. (People v. Huggins (2006) 38 Cal.4th 175, 214.) Theft is a lesser included offense of robbery. (Tufunga, supra, 21 Cal.4th at p. 948)
To warrant instructions on a lesser included offense, “there must be substantial evidence of the lesser included offense, that is, ‘evidence from which a rational trier of fact could find beyond a reasonable doubt’ that the defendant committed the lesser offense. [Citation.] . . . In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 174.)
Here, no reasonable jury could conclude that defendant formed the intent to steal after defendant and his confederates forced their way into the room with guns drawn and held Montalvo at gunpoint throughout the ordeal. Even if defendant later considered returning the property, that pondering did not negate his earlier intent to steal.
3. Defendant Did Not Receive Ineffective Assistance of Counsel
Defendant contends he received ineffective assistance of counsel because trial counsel failed to request CALJIC Nos. 4.21 [voluntary intoxication] and 4.35 [mistake of fact].
To demonstrate ineffective assistance of counsel, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and that the defendant was prejudiced as a result, i.e., it is reasonably probable that, but for counsel’s unprofessional errors, the verdict would have been different. (In re Thomas (2006) 37 Cal.4th 1249, 1256, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215-216.) Defendant has failed to meet this burden.
CALJIC No. 4.21 reads in part: “If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required [specific intent] [mental state]. [¶] If from all the evidence you have a reasonable doubt whether the defendant formed that [specific intent] [mental state[s]], you must find that [he] [she] did not have such [specific intent] [mental state[s]].”
Defendant’s contention that defense counsel was ineffective in failing to request an instruction on voluntary intoxication is unpersuasive. This is because counsel is not ineffective if he fails to request an instruction which the trial court is under no duty to give. (See People v. Cunningham (2001) 25 Cal.4th 926, 1037-1038.) Since no evidence supported the instruction here, the trial court was under no duty to give it, and counsel was not ineffective for failing to request it.
A defendant is not entitled to a voluntary intoxication instruction absent substantial evidence that the defendant was intoxicated and that the intoxication affected the defendant’s “actual formation of the specific intent.” (See People v. Williams (1997) 16 Cal.4th 635, 677.) Evidence of intoxication can be established in several interrelated ways: (1) eyewitness testimony about a defendant’s behavior; (2) expert testimony on the predictable pharmacological effects of the ingested substance; (3) evidence of the defendant’s consumption of inordinate quantities of the intoxicating substance; and (4) the common knowledge of jurors of the effect of the intoxicants. (People v. Kaurish (1990) 52 Cal.3d 648, 696.)
Here, the evidence of intoxication cited by defendant was Gutierrez’s testimony that he believed his assailants were “high on something,” and Montalvo’s testimony that they appeared under the influence. There were also general references to marijuana and methamphetamines. There was no evidence of the quantity of any intoxicating substance consumed by defendant or of his actual or apparent state of mind. Because the trial judge properly would have refused to give CALJIC No. 4.21 if defense counsel had requested it, counsel was not ineffective for failing to do so.
CALJIC No. 4.35 reads: “An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.”
Also without merit is defendant’s contention that his mistaken belief that Gutierrez “did in fact have his gun, or at least could get it back from Ruben,” negated the element of specific intent and, accordingly, the jury should have instructed on mistake with CALJIC No. 4.35.
Mistake of fact is a defense to a specific intent crime. (§ 26.) For the defense to be available, the defendant’s belief must be in good faith and reasonable. (People v. Burnham (1986) 176 Cal.App.3d 1134, 1142.) In People v. Russell (2006) 144 Cal.App.4th 1415, the defendant was convicted of receiving stolen property -- a motorcycle. The defendant presented substantial evidence that he had a good faith belief that the motorcycle was abandoned. This included the defendant’s testimony as to his belief, the poor condition and location of the motorcycle near a trash area when the defendant found it. On this record, the reviewing court found, it was error to not instruct sua sponte on the claim of right and mistake of fact defenses. (Id. at p. 1431.)
Here, there was no evidence to support a mistake of fact instruction. At best, there was evidence that defendant believed he had a claim of right to a gun, which he loaned to Ruben, a friend of robbery victim Gutierrez’s. There was no evidence to suggest that defendant had a good faith, much less reasonable, belief he had a claim of right to Gutierrez’s money or watches. Since even a good faith belief that Gutierrez or Ruben had his gun would not allow defendant to take other property from Gutierrez, a mistake of fact instruction would have been inappropriate, and defense counsel was not ineffective in failing to request it.
4. The Gang Enhancements Are Supported By Substantial Evidence
The jury found true the street gang enhancement (§ 186.22, subd. (b)) alleged as to the Gutierrez and Montalvo robberies, the Montalvo kidnapping, and the possession of a firearm by a felon and the accessory after the fact offenses. Defendant contends the evidence was insufficient to support the enhancement because there was no evidence that defendant was a member of any criminal street gang. We disagree.
Whereas active gang membership is an element of the substantive offense described in section 186.22, subdivision (a), it is not an element of the enhancement described in subdivision (b) of that section. (In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207.) To prove the enhancement, the prosecution need only prove that the Varrio Sand Street (VSS) gang was a criminal street gang and that the crimes were committed for the benefit of, at the direction of, or in association with that gang. (Ibid.)
Here, detective Diviak testified that he was a “gang detective” assigned to investigate crimes in which the victim or suspect was a gang member, and he had been assigned to investigate the crimes with which defendant was charged. Diviak was familiar with the VSS gang, which claims as its territory the area in Paramount bordered by Rosecrans Avenue on the north, Somerset/Orange on the south, Orange Street on the east and Sand Street to the west. VSS has about 100 members. Diviak opined that defendant is an “associate member” of VSS, which means that defendant commits crimes with other gang members but has not himself been fully “jumped” into the gang. Diviak’s opinion was based on the following: (1) defendant acknowledged his association with VSS when Diviak interviewed him several months earlier; (2) defendant admitted VSS association as reflected in a field report prepared by another officer; and (3) defendant was with VSS gang members when stopped by police on other occasions.
Diviak also opined that Marquez and Garcia were members of VSS, and explained the basis of that opinion.
Although the victims testified that they did not know whether defendant was in a gang, and other witnesses testified that defendant was not in a gang, the conflict between that evidence and Divak’s testimony was for the jury to resolve. Despite the conflicting evidence, Diviak’s testimony was sufficient to support the jury’s true finding on the gang allegations.
5. The Prosecutor Did Not Engage in Misconduct
“Improper remarks by a prosecutor can so infect[] the trial with unfairness as to make the resulting conviction a denial of due process. [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citations.] To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct. [Citations.]” (People v. Farnam (2002) 28 Cal.4th 107, 167, internal quotations omitted.)
Defendant contends that two statements made by the prosecutor during argument, both regarding the accessory after the fact charge, constituted prejudicial prosecutorial misconduct. First, the prosecutor stated: “What you are to decide is when [defendant] heard the gunshots he knew that some crime was committed, whatever the crime you think was committed, and obviously it was going to be a felony because you don’t have gunshots on a misdemeanor, okay?” Defendant contends this statement constituted prejudicial misconduct because there are several misdemeanors that may involve gunshots (e.g., §§ 245, subd. (a)(2), 246, 246.3), and gunshots may also be related to no crime at all -- hunting, a shooting range, self-defense.
Second, immediately after the first statement, the prosecutor continued: “The felony -- and he knew that the felony was committed because what did he say? And, again, this is on tape. This part of the interview was on the homicide investigation. So, again, it’s a separate incident. This is all on tape. So the different portion that [was testified to], if you have questions as to specific portions of the tape, we’ll play that back for you. [¶] But he knew that his partners were going to commit the crime by his own admission. He knew that there was a truck in the neighborhood. They thought it was a possible rival gang and that these guys went to go check it out.” Defendant contends this statement also constituted prejudicial prosecutorial misconduct because it misstated the evidence.
We conclude that neither statement rose to the level of a deceptive or reprehensible method. Moreover, defendant made no objection. To the extent the statements were inaccurate statements of the law or facts, they were of a minor nature and curative instructions would have cleared up any confusion. Arguably, the references were so inconsequential, counsel chose not to object. In any event, the failure to object waived the issue on appeal.
Defendant contends the trial court had a sua sponte duty to correct the prosecutor’s incorrect statement that “you don’t have gunshots on a misdemeanor,” even if his attorney failed to object. The trial court instructed the jury with CALJIC No. 1.00, that if any statement on the law by an attorney conflicts with the judge’s instruction, it is the latter that governs. In accordance with CALJIC No. 6.40, the court instructed the jury that one of the elements of the accessory after the fact charge was that an underlying “felony, namely, murder, or shooting at an occupied motor vehicle or attempted murder was committed.” We presume the jurors understood and applied both CALJIC No. 1.00 and CALJIC No. 6.40 and were not swayed by the prosecutor’s vague reference to misdemeanors. (People v. Holt (1997) 15 Cal.4th 619, 662.)
6. Section 654 is Inapplicable
Defendant argues his sentence violates the section 654 prohibition against multiple punishments. Rejecting each contention we conclude the following:
• Section 654 does not preclude punishment for the primary crimes (other than accessory to the Gomez shooting) and the related felon in possession charges occurring at the same time. Evidence showed that, on each occasion, defendant arrived at the scene already in possession of the firearm he used during the primary crimes. (See People v. Jones (2002) 103 Cal.App.4th 1139, 1144 [section 654 does not bar multiple punishment where the evidence shows that the defendant arrived at the crime’s location already in possession of the firearm].)
• Section 654 does not preclude punishment for multiple gang enhancements on underlying offenses where the underlying offenses were themselves not subject to section 654. (See People v. Akins (1997) 56 Cal.App.4th 331, 340 (Akins).) Because the underlying crimes involved different objectives or victims, section 654 did not apply to them, nor, under Akins, to the enhancements. (People v. Perez (1979) 23 Cal.3d 545, 553; Akins, supra, 56 Cal.App.4th at pp. 339-340.)
• Section 654 does not preclude separate punishment for each gun use enhancement imposed on the second Gutierrez robbery, the Montalvo robbery and the Montalvo kidnapping. (See People v. Oates (2004) 32 Cal.4th 1048, 1052 [where a defendant is convicted of five counts of attempted murder as a result of one incident in which he fires at a group of five people, section 654 does not bar imposition of multiple section 12022.53 enhancements]; People v. Smith (1992) 18 Cal.App.4th 1192, 1198-1199 [section 654 does not bar multiple punishment for robbery and for kidnapping of same victim to effect another robbery].)
• Section 654 does not preclude multiple punishment, pursuant to section 186.22, subdivision (b)(4)(B) for the home invasion robberies of Gutierrez and Montalvo on February 19th. Because the underlying crimes involved separate victims, the crimes and enhancements are separately punishable. (See Akins, supra, 56 Cal.App.4th at pp. 339-340.)
7. Penal Code Section 12022.53
Defendant was sentenced to a total of 108 years 4 months in prison comprised of the following consecutive terms:
· Count 1 (robbery): 25 years to life [15 years to life (§ 186.22, subd. (b)(4)(B)); plus 10 years (§ 12022.53, subd. (b))];
· Count 2 (firearm possession): 5 years [2 years (§ 120221, subd. (a)(1)); plus 3 years (§ 186.22, subd. (b)(1)(A))];
· Count 3 (robbery): 25 years to life [15 years to life (§ 186.22, subd. (b)(4)(B)); plus 10 years (§ 12022.53, subd. (b))];
· Count 4 (robbery): 25 years to life [15 years to life (§ 186.22, subd. (b)(4)(B)); plus 10 years (§ 12022.53, subd. (b))];
· Count 5 (kidnapping for ransom): 25 years to life [15 years to life (§ 186.22, subd. (b)(4)(B)); plus 10 years (§ 12022.53, subd. (b))];
· Count 8 (firearm possession): 1 year 8 months [1/3 the two-year midterm (§ 12021, subd. (a)(1)); plus 1/3 the three-year midterm (§ 186.22, subd. (b)(1)(A))];
· Count 12 (accessory after fact): 1 year 8 months [1/3 the two-year midterm (§ 32); plus 1/3 the three-year midterm (§ 186.22, subd. (b)(1)(A))].
Following oral argument, we asked the parties to brief whether imposition of the full 10-year term for the section 12022.53, subdivision (b) (hereafter § 12022.53(b)) gun use enhancements on counts 1, 3, 4, and 5 constituted an unauthorized sentence under People v. Moody (2002) 96 Cal.App.4th 987 (Moody). Not surprisingly, defendant argues that the sentence was unauthorized and the People argue that it was not. We conclude that the trial court correctly imposed full 10-year enhancements.
In pertinent part, section 12022.53, subdivision (b) provides: “Notwithstanding any other provision of law, any person who, in the commission of a [kidnapping or robbery], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.”
Two different sentencing schemes coexist in California: one determinate, the other indeterminate. (People v. Felix (2000) 22 Cal.4th 651, 654.) The determinate sentencing scheme includes section 1170.1, subdivision (a), which directs that “[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (Italics added.) As used in section 1170.1, the term “specific enhancements” includes the enhancements provided in section 12022.53. (§ 1170.11.)
In Moody, the defendant was convicted of several crimes calling for determinate sentences, including attempted second degree robbery. He admitted personally using a firearm in the attempted robbery within the meaning of section 12022.53(b). The attempted robbery count was made a consecutive, subordinate term to other counts. The trial court imposed a subordinate term of one-third the midterm, plus a consecutive full 10-year term for the section 12022.53(b) enhancement. (Moody, supra, 96 Cal.App.4th at p. 989.) The appellate court held that this was an unlawful sentence because the one-third limitation of section 1170.1 was applicable to the section 12022.53(b) enhancement attached to a consecutive subordinate term. (Id. at pp. 990-993.)
But the one-third limitation does not apply to enhancements attached to an indeterminate term. In People v. Felix (2000) 22 Cal.4th 651, the court held: “[C]ourt[s] should impose the full term for enhancements attached to indeterminate terms. This conclusion means that consecutive enhancements are full term for indeterminate crimes, one-third the term for ‘violent’ determinate crimes, and not imposed at all for nonviolent determinate crimes. (See § 1170.1, subd. (a).)” (Id. at p. 656.)
Here, because the enhancements were attached to counts 1, 3, 4, and 5, all of which were indeterminate terms, the trial court correctly imposed full 10-year enhancements on each.
DISPOSITION
The judgment is affirmed.
I CONCUR: COOPER, P. J.