Opinion
NOT TO BE PUBLISHED
Appeals from a judgment of the Superior Court of Tulare County, No. VCF165822, David L. Allen, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant and Defendant and Respondent.
Phillip J. Cline, District Attorney, Don H. Gallian and William E. Yoshimoto, Assistant District Attorneys, Barbara J. Greaver and John F. Sliney, Deputy District Attorneys, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOMES, J.
A jury convicted appellant Smith Saesee of (1) mayhem (Pen. Code, § 203; count 1), (2) shooting at an occupied building (§ 246; count 2); (3) assault with a semiautomatic firearm (§ 245, subd. (b); count 3); and (4) possession of a firearm by a felon (§ 12021, subd. (a)(1); count 4). The jury found true the following allegations: (1) as to counts 1 through 3, that Saesee personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a); (2) as to counts 1 and 2, section 12022.53, subdivision (d) firearm use enhancements; (3) as to count 1, a section 12022.53, subdivision (c) firearm use enhancement; (4) as to count 3, a section 12022.5 firearm use enhancement; (5) as to counts 1 through 3, section 186.22, subdivision (b)(1)(C) criminal street gang enhancements; (6) as to count 2, a section 186.22, subdivision (b)(4) criminal street gang enhancement; and (7) as to count 4, a section 186.22, subdivision (b)(1)(A) criminal street gang enhancement.
All further statutory references are to the Penal Code.
The court sentenced Saesee to state prison for a total term of 31 years and 8 months to life. The court imposed a total term of 30 years to life for the underlying offense and enhancement allegations in count 2, a concurrent sentence in count 1, a stayed sentence in count 3, and a consecutive sentence of one year, eight months, for the underlying offense and enhancement allegation in count 4.
Both Saesee and the People filed notices of appeal from the ensuing judgment. In his appeal, Saesee contends: (1) his conviction in count 2 must be reversed because the evidence failed to establish he discharged a firearm at an occupied building within the meaning of section 246; (2) his conviction in count 3 must be reversed because the trial court failed to instruct the jury with the definition of a semiautomatic firearm; and (3) the trial court erred by failing to stay the concurrent sentence on count 1. As we shall explain, we will reject Saesee’s contentions.
In their appeal, the People contend we should remand for resentencing because: (1) the sentences on the counts with the section 12022.53 sentence enhancements, counts 1 and 2, must be imposed consecutively, not concurrently; (2) the sentence on count 2 is incorrect because section 186.22, subdivision (b)(4)(B) changes the base term for violating section 246 to 15 years to life; (3) section 2933.1 limits the presentence conduct credits the court awarded to no more than 15 percent; (4) section 2900.5 prohibits awarding presentence custody credits twice to counts sentenced consecutively; and (5) the court failed to impose or strike certain enhancements. As we shall explain, while we will reject the People’s first and second contentions, we agree with the others and will remand the matter to the trial court to impose or strike those enhancements on which it failed to impose sentence, correct the presentence custody credits, and correct the minute order of the sentencing hearing to reflect the sentence on count 2 was imposed under section 186.22, subdivision (b)(4).
FACTS
On June 12, 2006, Saesee, a member of the Oriental Troop (OT) street gang, shot Matthew Fernandez, a member of the North Side Vica (NSV) street gang, at a Visalia gas station/mini-mart. The gas station had been the site of several altercations between rival street gang members. The gas station’s multi-camera surveillance system recorded the incident; the recording, which included superimposed time stamps, was admitted into evidence at trial.
The video recording shows that at 11:32 p.m., Saesee and his 16-year-old girlfriend, Eeshin Seechan, entered the mini-mart. The two argued at the front of the store, walked to the back of the store, took some alcohol, and brought it to the front counter. Their friend, Chala See, also went into the store, while Chala’s girlfriend, Theeda See, waited for them in the car she was driving. When the three did not immediately come out of the store, Theeda went into the store and told Chala to go to the car. Theeda and Chala went back out to the car and waited.
At 11:34 p.m., a vehicle carrying Fernandez, Jaime Hernandez, Samuel Mendoza, and Frank Apalategui stopped at a gasoline pump outside the store. The group got out of the car and walked towards the store. While Saesee was paying for the alcohol, Seechan left the store and returned to the car where Chala and Theeda were waiting. She saw the four guys walk towards the store. When she got to the car, she told Chala to go inside the store and help Saesee.
The four guys walked into the store just as Saesee finished his transaction. Hernandez, wearing a white shirt, walked in first; Fernandez, wearing a red shirt, was second; Mendoza, wearing a numbered sports jersey, was third; and Apalategui, wearing a gray shirt, was last. Chala, wearing a white shirt, immediately followed the group inside.
Saesee and Fernandez challenged each other to identify their gang affiliations. Saesee identified himself as a member of the OT street gang, while Fernandez identified himself as a member of the NSV street gang. Chala walked up from behind Saesee and punched Fernandez on the side of the head, knocking him to the ground. Fernandez and Apalategui charged at Chala who, along with Saesee, went outside the store. Apalategui and Mendoza pursued Saesee and Chala outside, while Fernandez stood in the doorway. While outside the store, Saesee pulled out a gun. Apalategui ran back into the store, while Fernandez and Mendoza, who had been holding the store’s door open, backed up into the store. As the door was closing, Saesee, who was standing outside the store, fired a single shot into the store through the door’s opening. The bullet struck Fernandez, who fell to the floor.
Saesee, Chala and Seechan ran to the car Theeda was driving and got in it. As Theeda was driving away, Saesee put half of his body out of the window; Theeda thought he was going to shoot at the store again. According to Theeda, Saesee said if anybody “fucks with him, they get a bullet. He don’t care about nobody.” Saesee stopped when Chala said “Look, there’s the cop. Don’t shoot.”
Dr. Roberta Zulim treated Fernandez at the hospital. The bullet entered Fernandez’s chest, went through his lung, diaphragm, stomach, aorta, and vertebrae, transecting part of his spinal cord and exiting through his back. The shooting left him with permanent paralysis and Dr. Zulim considered it a miracle that he survived.
Visalia Police Officer Gilbert Torres found a spent chrome shell casing outside the store’s front door. According to Officer Torres, a semiautomatic handgun, not a revolver, would eject a shell casing and the shell casing suggested a semiautomatic handgun was used. Officer Torres explained that there is a top metal slide on top of a semiautomatic weapon that moves back and forth very quickly when a shot is fired, chambering another round. When a semiautomatic weapon is loaded by putting in a magazine, the slide can be pulled back, which will extract a bullet from the magazine and slide it into the chamber. If a round is already chambered and the slide is pulled back, a round will be ejected and another chambered.
James Potts, a Visalia Police Department identification technician, found a bullet hole on the outside of a box of honey buns on a display rack inside the store. He found a.38 caliber bullet inside the box, which was consistent with the shell casing found outside the store. Potts collected the spent casing that was found in the front of the store, which had a small indentation caused by the gun’s firing pin. The casing was a.38 caliber “Win” (Winchester). Inside the vehicle Theeda was driving that night, Potts found two live bullets on the right-side rear passenger floorboard area where Saesee had been sitting. Potts did not find any fingerprints on the bullets or the spent shell casing. The bullets and shell casing were all the same brand -- “Win.38 Super Auto Plus P.”
Theeda testified that while they were driving to the store, Saesee pulled out a handgun during a dispute with Chala and pointed it at him. Theeda did not know if the handgun was a revolver or a semiautomatic; while she knew what a revolver was, she did not know what a semiautomatic handgun was. Theeda confirmed the gun Saesee had was the kind with a clip that goes into the handgrip. She saw Saesee twice pull back on something on top of the gun with his hand using a sliding motion; it made a clicking sound, which Theeda told a detective the day after the shooting was like racking a round.
Frank Arnold, a district attorney investigator, went to the gas station to measure the location where the shooter and victim were standing at the time of the shooting, based on the videotape of the incident. Arnold determined the shooter was standing on the cement entranceway, which is a sidewalk area, and the victim was standing inside the store; the distance between the two was 21 feet, two and a half inches.
Visalia Police Officer Luma Fahoum opined that a hypothetical crime committed under circumstances similar to the evidence in the present case would have been committed for the benefit of the OT criminal street gang with the specific intent to promote the gang’s criminal conduct.
DISCUSSION
I. Saesee’s Appeal
Sufficiency of the Evidence
Saesee contends there was insufficient evidence to support his conviction for shooting at an occupied building. Specifically, he contends he did not shoot “at” the occupied building, as required by section 246, because “his position at the time of the shooting was essentially the same as if he had been fully inside the store itself,” since he was standing at the entrance to the store when he fired the gun and the shot was fired through the open doorway. Alternatively, Saesee contends that even if he was standing outside the store when he fired the shot, the evidence still was insufficient to show he fired at the building because there was no evidence he intended to strike the building or of a reasonable likelihood the shot he fired would strike the building itself, and no evidence he acted with a conscious disregard of the possibility his shot would strike another individual or the building itself. We disagree.
In reviewing a claim of insufficiency of the evidence, we consider the entire record in a light most favorable to the People and determine whether it contains substantial evidence — i.e. evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could have found the required elements beyond a reasonable doubt. (People v. Berryman (1993) 6 Cal.4th 1048, 1083, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Section 246 is violated when a person intentionally discharges a firearm either directly at a proscribed target (e.g. an occupied vehicle or inhabited dwelling house) or in close proximity to the target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it. (People v. Overman (2005) 126 Cal.App.4th 1344, 1361 (Overman).) No specific intent to strike the target, kill or injure persons, or achieve any other result beyond shooting at or in the general vicinity or range of the target is required. (Ibid.) “The defendant’s conscious indifference to the probability that a shooting will achieve a particular result is inferred from the nature and circumstances of his act.” (Id. at pp. 1356-1357.)
The statute prohibits shooting at the specified targets from the outside. In People v. Stepney (1981) 120 Cal.App.3d 1016 (Stepney) the defendant forced his way into the victim’s home, demanded money, and while standing in the living room, fired his gun at the television set to prove he was “‘not playing any games.’” (Id. at 1018.) The appellate court interpreted section 246, which prohibits shooting at an inhabited dwelling, as not including a shooting that occurred inside the building. The defendant’s conviction under section 246 was not supportable because he did not fire the gun at the house. (Stepney, supra, at p. 1021.)
Although Saesee recognizes the evidence shows that he was standing outside the store when he fired the shot, he asserts that his firearm should be deemed “within the boundaries of the occupied building” because he was standing at the threshold or entrance of the store with his hand at or near the path of the open doorway, there were no doors or barriers between himself and the victim at the time of the shooting, and the shot was fired through the open doorway. From this evidence, Saesee argues “his position at the time of the shooting was essentially the same as if he had been fully inside the store itself.” Saesee urges us to look at the burglary statute, which requires an “entry” into a dwelling (§ 459), and cases which state this element is satisfied if any part of the intruder’s body or instrument the intruder is holding is inside the premises (People v. Failla (1966) 64 Cal.2d 560, 569), and reasons that since a burglary is committed when the plane of any barrier to the premises is broken, “in the context of section 246 having any part of the firearm inside the entryway of the occupied building at the time of the discharge of the weapon should constitute shooting inside the building, rather than shooting ‘at’ the building.”
Saesee’s argument fails because the jury easily could conclude from the surveillance video that both Saesee and the firearm he carried were entirely outside of the store and its entryway when he discharged the firearm. Moreover, there is sufficient evidence from which the jury reasonably could have found that he fired the shot in close proximity to the store, since he was standing directly outside the door to the store when he fired the shot, under circumstances showing a conscious disregard for the probability that the bullet would strike the building or persons in or around it, i.e. he fired as the door was closing, with another person standing between him and Fernandez, and without regard to the possibility the bullet would strike persons inside the store. That the shot was fired through an open doorway does not amount to evidence he was inside the store when he fired the gun.
Contrasting his case to People v. Chavira (1970) 3 Cal.App.3d 988, where the defendant fired multiple shots at people standing outside an occupied building, and People v. Cruz (1995) 38 Cal.App.4th 427 (Cruz), where the defendant shot an officer who was standing inside a building through the building’s glass door, Saesee points out that he fired the weapon only once, he aimed directly at his intended victim, there were no barriers between himself and the victim, and his shot struck the victim in the chest. From this, Saesee reasons there was no evidence it was likely his shot would strike the building or that he acted in conscious disregard of the possibility the shot would strike another individual or the building.
The evidence established that Saesee fired the weapon directly at Fernandez as he stood inside the store. The shooting was in such close proximity to the inhabited store that there was a very real risk the store, or persons inside it, might be hit. That the trajectory of the shot did not present a risk of hitting the store or another person, or that it was reasonably probable the bullet would hit someone other than the intended victim, is of no consequence; instead, it is his firing the shot in close proximity to the human targets in the store that shows his conscious indifference to the risk of hitting the store or the people within it. (Overman, supra, 126 Cal.App.4th at pp. 1356-1357.) On these facts, the jury was entitled to conclude Saesee was aware of the probability the shot could hit the store, or persons inside it, and was consciously indifferent to this result.
In sum, the record contains substantial evidence Saesee shot at an occupied building to support his conviction of section 246.
Instructional Error
Saesee was charged with and convicted of assault with a semiautomatic firearm. (§ 245, subd. (b).) The jury was instructed with a modified version of CALCRIM No. 875, in relevant part, that “[t]o prove the defendant is guilty of this crime, the People must prove that first, the defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person; second, the defendant did that act willfully; third, when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and four, when the defendant acted, he had the present ability to apply force with a semiautomatic firearm; five, the defendant did not act in self-defense or in defense of someone else....” The jury also was instructed with another modified version of CALCRIM No. 875 on the lesser included offense of assault with a firearm (§ 245, subd. (a)(2)). While both instructions defined the term “firearm” as “any device designed to be used as a weapon from which a projectile is discharged or expelled through a barrel by the force of explosion or other form of combustion,” neither defined the term “semiautomatic.”
Although he did not object to the instruction at trial, Saesee now argues the instruction on assault with a semiautomatic firearm was improper because the omission of a definition of “semiautomatic” was prejudicial failure to instruct on an element of the offense. We conclude any error was harmless.
The jury must be instructed on the elements of an offense, and further explanatory instructions must be given “where a term used in an instruction has a specific or technical meaning peculiar to the law....” (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318-1319.) Courts should clarify a term if it is one not commonly understood by those familiar with the English language. (See People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023 (Griffin).)
Section 245, subdivision (b), does not define “semiautomatic firearm.” Our Supreme Court has described that term to mean one that “‘fires once for each pull on the trigger and reloads automatically, but requires the shooter to release the trigger lever before another shot can be fired.’” (In re Jorge M. (2000) 23 Cal.4th 866, 874-875, fn. 4, quoting Walter, Rifles of the World (2d ed. 1998) p. 498.) This is consistent with a typical dictionary definition of “semiautomatic”: “of a firearm: employing gas pressure or force of recoil and mechanical spring action to eject the empty cartridge case after the first shot and load the next cartridge from the magazine but requiring release and another pressure of the trigger for each successive shot.” (Webster’s 10th Collegiate Dict.(1999) p. 1063.)
Though “semiautomatic firearm” does not appear to have a unique legal meaning that differs from its use in other contexts, we doubt it is a term so commonly understood by those familiar with the English language that it requires no definition or explanation. (See Griffin, supra, 33 Cal.4th at p. 1023.) Assuming without deciding that it should ordinarily be defined for jurors, the failure to do so in this case was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Officer Torres explained that a semiautomatic firearm ejects a shell casing when it is fired and has a metal slide on the top that can be moved back and forth by hand, which ejects a round. A spent casing was found in front of the store after the shooting and a.38 caliber bullet consistent with the casing was found in a box on a display rack in the store. Theeda testified that when she was driving to the mini-mart, Saesee had a gun that had a clip in the handgrip and that he pulled something on the top of the gun with his hand using a sliding motion, which made a clicking sound like racking a round. Two bullets, the same brand as the bullet and casing found at the scene, were found in the back seat of Theeda’s car where Saesee had been sitting. Although the gun used in the shooting was not recovered, from the uncontested evidence a reasonable jury could have found Saesee guilty beyond a reasonable doubt of assault with a semiautomatic firearm.
Section 654At sentencing, the trial court designated count 2, shooting at an occupied building, as the principal term, and imposed the mid-term of five years, plus a consecutive 25 to life term for the section 12022.53, subdivision (d) enhancement. On count 1, mayhem, the trial court sentenced Saesee to a concurrent term of four years, plus 25 years to life for the section 12022.53, subdivision (d) enhancement, and 10 years for the section 186.22, subdivision (b) enhancement. Saesee contends section 654 bars imposition of sentence on count 1 because the shooting and the assault with the semiautomatic firearm constituted an indivisible course of conduct, carried out with the same intent and objective.
Section 654, subdivision (a), “‘“precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible... depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’”’” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) However, if the defendant harbored “multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Solis (2001) 90 Cal.App.4th 1002, 1021 (Solis); People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (Jones, supra, 103 Cal.App.4th at p. 1143; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (Hutchins); People v. Herrera (1999) 70 Cal.App.4th 1456, 1466 (Herrera).) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Hutchins, supra, at p. 1312; Herrera, supra, at p. 1466; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) We review the trial court’s determination in the light most favorable to the People and presume the existence of every fact the trial court reasonably could deduce from the evidence. (Hutchins, supra, at pp. 1312-1313.)
In committing mayhem (count 1) and shooting at an occupied building (count 2), Saesee engaged in but a single course of conduct (shooting into the mini-mart) with a single objective (to shoot Fernandez). The People claim section 654 does not apply, however, because Saesee’s actions constituted crimes of violence against different victims, an exception to the prohibition of multiple sentences found in section 654. We conclude the exception applies.
“[C]rimes of violence against multiple victims [are] separately punishable.” (People v. Latimer (1993) 5 Cal.4th 1203, 1212; People v. Higareda (1994) 24 Cal.App.4th 1399, 1413.) “‘The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.... Section 654 is not “... applicable where... one act has two results each of which is an act of violence against the person of a separate individual.”’” (Solis, supra, 90 Cal.App.4th at p. 1023, italics added.)
“‘[W]hether a crime constitutes an act of violence that qualifies for the multiple-victim exception to section 654 depends upon whether the crime... is defined to proscribe an act of violence against the person.’” (Solis, supra, 90 Cal.App.4th at p. 1023; People v. Hall (2000) 83 Cal.App.4th 1084, 1089.) The crime of shooting into an occupied building is an act of violence likely to cause serious injury. (See People v. Anderson (1990) 221 Cal.App.3d 331, 338 (Anderson).) Thus, in Anderson, where the defendant was convicted of robbery of victim one, shooting at an inhabited dwelling, and assault against victims two and three, the appellate court concluded multiple punishment was permissible because the victims of the shooting at the inhabited dwelling included victims one, two, and three, and a fourth person who was in the dwelling at the time of the shooting. (Id. at pp. 338-339.) In so concluding, the court noted that as long as each violent offense involves at least one different victim, multiple punishment is not precluded. (Id. at p. 339; see also Cruz, supra, 38 Cal.App.4th at pp. 434-435 [multiple punishment permissible for assault with a firearm and discharging a firearm at an occupied building, where the defendant shot at a security guard through a glass door; the court noted that while the security guard was a victim of both crimes, other victims of the second crime included the children and other people standing near the security guard whom he tried to move away as bullets shattered the glass front door and who were at risk from bullets and flying glass]; People v. Masters (1987) 195 Cal.App.3d 1124, 1128 [upholding multiple punishment for assault with a deadly weapon and shooting at an occupied motor vehicle where the defendant fired multiple shots into an automobile carrying three passengers, injuring one of them; section 654 not applicable as long as each violent crime involves at least one different victim].)
Here, Fernandez was the victim of both crimes. But there were other victims of the crime of shooting at an occupied building, namely the other people in the mini-mart. As stated earlier, the purpose of section 654 is to ensure that a defendant’s punishment is commensurate with his culpability. The multiple victim exception to section 654 was developed because a defendant who commits a crime of violence endangering multiple victims is more culpable than a defendant who endangers only a single victim. When Saesee shot at his intended victim, he put in danger not only his target but also everyone else inside the mini-mart. The fact that no one other than the intended victim was injured does not further Saesee’s cause, as he fired without considering the danger to everyone in his line of fire, including the other people inside the mini-mart. His lack of concern for others makes him more culpable than for multiple crimes against a single victim, and this additional culpability precludes the application of section 654 to count 1.
II. The People’s Appeal
Concurrent Sentencing
The trial court imposed sentence on Saesee’s count 1 mayhem conviction and attendant section 12022.53, subdivision (d) and section 186.22, subdivision (b) enhancements concurrent to the sentence it imposed for the count 2 shooting at an occupied building and attendant section 12022.53, subdivision (d) enhancement. The People, renewing an argument raised below, challenge the concurrent sentence as unauthorized in light of our Supreme Court’s holding in People v. Palacios (2007) 41 Cal.4th 720 (Palacios) and the language of section 12022.53, subdivision (d). We conclude that Palacios is inapposite and the sentence not unauthorized.
In Palacios, the high court addressed the issue of whether section 654 barred the imposition of sentence for multiple section 12022.53 enhancements. (Palacios, supra,41 Cal.4th at p. 725.) The defendant there had been sentenced to three consecutive life with the possibility of parole terms for attempted murder and two kidnapping convictions, each with an added enhancement under section 12022.53, subdivision (d) of 25 years to life. (Palacios, supra, 41 Cal.4th at pp. 724-725.) On appeal, the Court of Appeal agreed with the defendant that the imposition of sentence for two of the three section 12022.53 enhancements should be stayed under section 654 to make the defendant’s punishment commensurate with his conduct of discharging the firearm only once at a single victim. (Palacios, supra, 41 Cal.4th at p. 725.)
After reviewing the legislative intent and history behind section 12022.53, as well as section 654 and the holding in People v. Oates (2004) 32 Cal.4th 1048 (Oates), the Supreme Court reversed, holding that “in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654.” (Palacios, supra, 41 Cal.4th at pp. 727-728.) Thus, the court concluded that imposition of punishment for each of the multiple section 12022.53 enhancements was required. (Palacios, supra, 41 Cal.4th at p. 723.)
In Oates, the defendant, who with his companions fired two shots into a group of five people, hitting one of them, was convicted of five counts of attempted murder and the jury found true multiple section 12022.53 enhancements, including section 12022.53, subdivision (d) enhancements attached to each count. (Oates, supra, 32 Cal.4th at p. 1053.) The trial court sentenced the defendant to consecutive terms on two of the counts, one of which included a consecutive 25-years-to-life sentence under section 12022.53, subdivision (d); on the other consecutive count, the trial court imposed and stayed the subdivision (d) enhancement. The trial court imposed concurrent sentences on the remaining three counts. (Oates, supra, 32 Cal.4th at pp. 1053-1054.) The Supreme Court held the trial court erred in staying the section 12022.53, subdivision (d) enhancement attached to the second consecutive count because section 12022.53 calls for imposition of multiple subdivision (d) enhancements under the circumstances of the case and section 654 does not prohibit the result, since the multiple victim exception to section 654 applied. (Oates, supra, 32 Cal.4th at pp. 1055, 1057, 1062-1068.)
Here, the trial court imposed the section 12022.53 enhancements consecutive to the terms it imposed for the crimes to which the enhancements attached — the count 1 mayhem and the count 2 shooting at an occupied building. It did not stay the enhancements as prohibited under the holding of Palacios. The court then determined that the “sentence” for count 1, which includes both the term for the underlying crime plus the term for the attached enhancements (see People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310-1311 (Mustafaa)), would run concurrent to the sentence it had imposed for count 2, as authorized by section 669.
Section 669 provides in pertinent part: “When any person is convicted of two or more crimes... the second... judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with any other term of imprisonment for a felony conviction....”
The People argue that the court had no discretion to choose between concurrent and consecutive terms, but instead was required to impose consecutive terms on counts 1 and 2, and their accompanying enhancements. The People contend that because section 12022.53, subdivision (d) states that “[n]othwithstanding any other provision of law,” a person who, in the commission of the felonies Saesee committed here, namely mayhem and shooting at an occupied building, “personally and intentionally discharges a firearm and proximately causes great bodily injury... shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life,” not only was the court required to impose the sentences on the enhancements consecutive to the sentences on the crimes to which they are attached, the court also was required to impose consecutive sentences on the crimes plus the enhancements. The People reason that requiring consecutive sentences where a defendant commits multiple crimes to which section 12022.53, subdivision (d) enhancements attach is the only way to ensure the legislative intent behind section 12022.53 is carried out, namely “‘“that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime.”’” (Palacios, supra, 41 Cal.4th at p. 725.)
This argument fails, however, because nothing in section 12022.53 prohibits imposition of concurrent sentences where a defendant is convicted of multiple crimes to which section 12022.53, subdivision (d) enhancements attach. As the People recognize, section 12022.53 enhancements attach to the term of imprisonment imposed for an underlying offense; they are not separate crimes that may be imposed as a subordinate term on their own. (Oates, supra, 32 Cal.4th at p. 1066; Mustafaa, supra, 22 Cal.App.4th at pp. 1310-1311.) While section 12022.53, subdivision (d) states that the enhancement results in punishment “by an additional and consecutive term of imprisonment in the state prison for 25 years to life” for intentional discharge of a firearm causing great bodily injury or death to someone other than an accomplice during the commission of specified felonies, this term of imprisonment necessarily must be imposed in addition to the sentence imposed on the underlying felony. Significantly, although section 12022.53, subdivision (g) prohibits a court from granting probation or suspending the execution or imposition of sentence for any person found to come within the provisions of section 12022.53, and subdivision (h) prohibits a court from striking a section 12022.53 enhancement, section 12022.53 does not state that the enhancement and sentence on the underlying felony must be imposed consecutive to the sentence on other felonies to which the enhancement also attaches.
Since section 12022.53, subdivision (d) does not expressly mandate that the sentences on all crimes to which the enhancement attaches be served consecutively, section 669 grants the trial court authority to impose either concurrent or consecutive terms for multiple convictions. (See People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262 [“Absent an express statutory provision to the contrary, section 669 provides that a trial court shall impose either concurrent or consecutive terms for multiple convictions.”]; People v. Murphy (1998) 65 Cal.App.4th 35, 39, 43.)
The People also point to language in Palacios, where the court stated that the sentence the trial court imposed there, namely three consecutive terms for attempted murder and two kidnapping convictions with a section 12022.53, subdivision (d) enhancement of 25 years to life added to each conviction, was “required by the statutory language and in keeping with the legislative purpose,” (Palacios, supra, 41 Cal.4th at pp. 724, 733), and assert that means that consecutive sentences are required here. The Court, however, was not addressing the issue of whether concurrent sentences could be imposed in an appropriate case. Moreover, the Court in Palacios specifically noted that the Court of Appeal had concluded that the enhancement must be stayed pursuant to section 654, even though section 654 did not preclude separate punishment for each of the underlying offenses. (Palacios, supra, 41 Cal.4th at p. 723.) Thus, the Court was not addressing the issue of whether section 654 could be applied to stay a sentence on an underlying offense that included a section 12022.53, subdivision (d) enhancement. Instead, the Court held that section 654 does not preclude punishment for more than one section 12022.53 enhancement when they are based on a single act committed against a single victim, although in the commission of separate crimes. (Palacios, supra, 41 Cal.4th at pp. 723, 726.) Significantly, in Oates, the Court noted when rejecting the defendant’s argument that anomalies could occur if section 12022.53 calls for multiple enhancements where only one person is injured, that a trial court could “mitigate concerns about sentencing inequities by imposing concurrent, rather than consecutive, sentences where multiple subdivision (d) enhancements are found true.” (Oates, supra, 32 Cal.4th at pp. 1059-1060.)
There is simply nothing in Oates, Palacios, or section 12022.53 which supports the People’s assertion that consecutive sentences are required in the circumstances presented here. Since there is nothing in section 12022.53 that requires consecutive sentencing of multiple counts to which subdivision (d) enhancements attach, section 12022.53 does not limit the court’s exercise of discretion under section 669. Accordingly, the trial court did not err when it imposed concurrent sentences on counts 1 and 2.
Sentence on Count 2
The trial court determined count 2 to be the principal count and stated it would be imposing a prison sentence. The trial court selected the five-year mid-term for the offense and a consecutive 25 year-to-life term for the section 12022.53, subdivision (d) enhancement. The court explained: “Now, the Penal Code Section 12022.5[3](d) enhancement, which the jury found true as to Count 1 [sic], is a 25-year life sentence, and this is required to run consecutive to the five-year prison term. So added to the five-year mid[-]term sentence this would amount to 30 years to life. [¶] Ordinarily, no more than one enhancement of these types can be used. However, in the case of a 186.22, Sub (b), Sub (4), the code does provide that this can be additional, that — sorry. This section adds an additional indeterminate life sentence. [¶] Now, whether it should also apply depends upon the construction of Penal Code Section 12022.53, Sub (d), and 186.22(b)(4). These enhancements pursuant to Section 12022.53, Sub (e), Sub (2), can run consecutively. The way I interpreted that it is conditioned upon if that particular count or enhancement was found true by the jury involving infliction of great bodily injury, and that did occur in Count 2. That’s my explanation for running the 186 enhancement consecutive. That would make the total amount 30 years. [¶] Hence, the sentence for Count 2 is indeterminate life sentence with a minimum term of 30 years....”
The People contend the trial court was required to impose an indeterminate life sentence with a 15 year minimum term on count 2 pursuant to section 186.22, subdivision (b)(4)(B), with a consecutive term of 25 years-to-life for the section 12022.53, subdivision (d) enhancement. As we shall explain, we agree with Saesee that this contention lacks merit and the trial court properly imposed a term of life with a minimum term of 30 years on count 2 pursuant to section 186.22, subdivision (b)(4)(A).
As applicable here, section 186.22, subdivision (b)(4) provides: “(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) or this paragraph. [¶] (B) Imprisonment in the state prison for 15 years, if the felony is... a felony violation of Section 246;...”
Here, the trial court calculated the sentence on count 2 pursuant to section 186.22, subdivision (b)(4)(A) and imposed an indeterminate life term with a minimum term of 30 years. The minimum term was comprised of the midterm of 5 years for the section 246 offense and 25 years-to-life for the section 12022.53, subdivision (d) enhancement. Since the minimum term of 30 years is greater than the minimum term of 15 years provided in section 186.22, subdivision (b)(4)(B), the trial court properly imposed the greater minimum term of 30 years pursuant to section 186.22, subdivision (b)(4)(A).
Despite the statute’s language which provides that the greater minimum term should be imposed, the People contend that when a person is convicted of a felony violation of section 246 where an allegation of 186.22, subdivision (b) is found true, the base term becomes an indeterminate life sentence with a minimum term of 15 years, citing People v. Florez (2005) 132 Cal.App.4th 314 (Florez). In Florez, the court held that the defendant’s presentence conduct credit was limited to 15 percent under section 2933.1 because a conviction for discharging a firearm at an inhabited dwelling in violation of section 246 committed for the benefit of a criminal street gang under section 186.22, subdivision (b)(4) is a felony offense within the meaning of section 667.5, subdivision (c)(7). (Florez, supra, 132 Cal.App.4th at p. 322.) The court did not address the issue presented in this case, namely the proper sentence when a defendant is convicted of discharging a firearm at an occupied building in violation of section 246 committed for the benefit of a criminal street gang under section 186.22, subdivision (b)(4), and a section 12022.53, subdivision (d) enhancement is also found true, and therefore Florez has no bearing here.
The People also contend that we should ignore the section 12022.53, subdivision (d) enhancement for purposes of determining whether the term in section 186.22, subdivision (b)(4)(A) is greater than the 15 year minimum provided in section 186.22, subdivision (b)(4)(B). The People reason that to do otherwise would result “in unjust and absurd consequences the voters could not have intended when they passed Proposition 21 amending § 186.22 to add subd. (b)(4).”
Ignoring the section 12022.53, subdivision (d) enhancement for purposes of determining the greater minimum term under section 186.22, subdivision (b)(4), however, would run contrary to the express language in section 186.22, subdivision (b)(4)(A), which provides that the minimum term includes “... any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2,...” As the statute’s language is clear and unambiguous, we cannot simply disregard this language when a particular enhancement is involved.
Subdivision (b)(4) of section 186.22 was approved by the voters of California in March 2000, as part of an initiative statute known as the Gang Violence and Juvenile Crime Prevention Act of 1998 (also sometimes called “Proposition 21). (Florez, supra, 132 Cal.App.4th at p. 319.) In our view, the law applicable here is the longstanding, well established rule that a statute adopted by the voters means what it says. “‘It is a general rule of statutory construction that the courts will interpret a measure adopted by vote of the people in such manner as to give effect to the intent of the voters adopting it. [Citation.] It must be held that the voters judged of the amendment they were adopting by the meaning apparent on its face according to the general use of the words employed. Such is the rule when it does not appear that the words were used in a technical sense.’” (Kaiser v. Hopkins (1936) 6 Cal.2d 537, 538; in accord, see Keller v. Chowchilla Water Dist. (2000) 80 Cal.App.4th 1006, 1010-1011 (Keller).) “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735; People v. Jones (1993) 5 Cal.4th 1142, 1146; Delaney v. Superior Court (1990) 50 Cal.3d 785, 798; Keller, supra, 80 Cal.App.4th at p. 1010.) There can be no doubt that the relevant language of section 186.22, subdivision (b)(4)(A) is clear and unambiguous; therefore, we are bound by the plain meaning of the statute’s words.
The People point out that the minute order for the sentencing hearing is inconsistent with the trial court’s oral pronouncement. We agree. With respect to count 2, the minute order states as follows: “Mid-term 5 years plus 25 years to life for PC 12022.53(d) for a total of 30 years to life. PC 186.22(b), PC 12022.7(a) are stayed.” The trial court, however, did not state it had stayed section 186.22, subdivision (b); instead, it sentenced Saesee pursuant to that subdivision. As we will be remanding this matter to correct other sentencing errors, as discussed post, we will order the minutes corrected to reflect the trial court’s oral pronouncement.
The Failure to Impose Sentence on Enhancements
The People contend the trial court erred by failing to render judgment on the following enhancements attached to counts 1, 2 and 3: (1) in count 1, the section 12022.53, subdivision (c) enhancement and the section 12022.7, subdivision (a) enhancement; (2) in count 2, the section 12022.7, subdivision (a) enhancement; and (3) in count 3, the section 12022.5, subdivision (a) enhancement and the section 12022.7, subdivision (a) enhancement. Saesee agrees the court erred in failing to pronounce judgment on these enhancements.
The People also assert the trial court failed to pronounce judgment on the section 186.22, subdivision (b) allegation attached to count 2. As we discussed ante, however, the trial court properly imposed sentence pursuant to section 186.22, subdivision (b)(4) and therefore did not fail to render judgment on it.
The reporter’s transcript of the sentencing hearing shows that the court stated it was ignoring the section 12022.7, subdivision (a) great bodily injury enhancements attached to counts 1, 2 and 3 for sentencing purposes. Accordingly, the trial court did not impose the section 12022.7, subdivision (a) enhancements the jury found true with respect to those counts. The trial court also did not impose the section 12022.53, subdivision (c) enhancement the jury found true with respect to count 1, or the section 12022.5, subdivision (a) enhancement the jury found true with respect to count 3.
Both counts 1 and 2 had a section 12022.53, subdivision (d) enhancement attached to them, on which the court did impose sentence. This enhancement provides a longer term of imprisonment than the section 12022.53, subdivision (c) enhancement attached to count 1 and the section 12022.7, subdivision (a) enhancements attached to counts 1 and 2. In People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, our Supreme Court recently concluded section 12022.53 “requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.” As the parties point out, although Gonzalez involved a firearm enhancement, the Court’s reasoning also applies to the section 12022.7, subdivision (a) great bodily injury enhancements attached to counts 1 and 2. (See § 12022.53, subd. (f).) Thus, pursuant to Gonzalez, the trial court was required to impose and stay the section 12022.53, subdivision (c) enhancement attached to count 1 and the section 12022.7, subdivision (a) enhancements attached to counts 1 and 2.
With respect to count 3, which the trial court stayed pursuant to section 654, the trial court failed to impose any sentence for the section 12022.5, subdivision (a) personal use of a firearm and 12022.7, subdivision (a) great bodily injury enhancements attached to that count. “The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal.” (People v. Bradley (1998) 64 Cal.App.4th 386, 391 (Bradley) [trial court erred by failing to indicate disposition of one of four prior prison term enhancements].) Pursuant to section 1385, subdivision (a), the trial court was required either to strike or impose the section 12022.7 three-year enhancement. (§ 12; see People v. Thomas (1997) 56 Cal.App.4th 396, 405; cf. Bradley, supra, 64 Cal.App.4th at pp. 390-392; People v. Harvey (1991) 233 Cal.App.3d 1206, 1231.) The trial court also was required to impose the section 12022.5, subdivision (a) enhancement, which calls for a sentence of three, four or ten years. (See § 12022.5, subds. (c) [“Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”], and (d) [“Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used...”].) Once imposed or stricken, the sentences on the enhancements also would be stayed pursuant to section 654. (People v. Smith (1985) 163 Cal.App.3d 908, 913-914.)
The People contend that remand is required so the trial court can impose sentence on the enhancements, while Saesee contends we can correct the error ourselves. Since the trial court has sentencing discretion with respect to the term of imprisonment on at least one of the enhancements and discretion whether to impose or strike another, remand is required so the court can exercise that discretion. With respect to the section 12022.7, subdivision (a) enhancement attached to count 3, if the trial court decides to strike the enhancement, it is to set forth the reasoning for the exercise of its discretion on the record. (§ 1385; People v. Orin (1975) 13 Cal.3d 937, 944.)
Presentence Custody Credits
The trial court awarded Saesee 563 days presentence custody credits in all four counts, consisting of 451 actual days plus an additional 112 days for good time/work time credit. The People contend the trial court erred in awarding the 112 days good time/work time credit because section 2933.1, subdivision (c) mandates a 15 percent limit on such credits for someone convicted of violent felonies including mayhem, shooting at an occupied building and assault with a semiautomatic firearm. (§ 667.5, subd. (c)(2), (c)(7), (c)(8), (c)(22).) Saesee concedes the error, and we agree. Saesee should have received only 67 days of goodtime/work time credit for the 451 actual days he spent in pretrial detention, instead of the 112 the trial court awarded. We will order the trial court to correct this sentencing error.
The People also contend the trial court improperly awarded presentence custody credit against the consecutive terms imposed in both counts 2 and 4. During the sentencing hearing, the trial court first addressed the issue of presentence custody credits after it imposed the sentence on count 2, stating: “I’ll go ahead and calculate the credits on each count. I think they are basically the same in each count. I’m not sure if my calculations are correct, but I recalculated Saesee’s credits up to date, and I came up with 451 actual days of credits, plus an additional 112 days for good time/work time credits combined, giving Smith Saesee a total of 563 days credits against this sentence imposed in Count 2.” After the court imposed a consecutive one year, eight month term on count 4, it stated, “Again, I’m assigning the same number of credits to the testimony [sic] on this Count 4, which is 563 days total.”
Section 2900.5, subdivision (b) provides: “For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”
As Saesee points out, the minute order from the sentencing hearing properly reflects that Saesee was given a single award of presentence custody credit, as do the abstracts of judgment. The People nevertheless contend remand is required so the trial court can orally state that credits will be assessed only once. Since we are remanding the matter so the trial court can impose sentences on the enhancements, we will also direct the trial court to clarify on the record that the presentence custody credits are to be assessed only once.
DISPOSITION
The matter is remanded to the trial court to: (1) impose and stay the sections 12022.53, subdivision (c) and 12022.7, subdivision (a) enhancements attached to count 1; (2) impose and stay the section 12022.7, subdivision (a) enhancement attached to count 2; (3) impose or strike the section 12022.7, subdivision (a) enhancement attached to count 3 and impose the section 12022.5, subdivision (a) enhancement attached to count 3, and to stay those enhancements pursuant to section 654; (4) correct the award of presentence custody credit from 750 days (based on 250 days of conduct credit) to 575 days (based on 75 days of conduct credit) and state that the credits are to be awarded only once; and (5) correct the minute order to reflect that the sentence on count 2 was imposed under Penal Code section 186.22, subdivision (b)(4). The trial court is directed to prepare corrected abstracts of judgment and to forward certified copies to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: LEVY, ACTING P.J., KANE, J.