Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FSB051400. Kenneth Barr, Judge.
Lynda A. Romero, 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, Senior Assistant Attorney General, and Jeffrey J. Koch and Pamela Ratner Sobeck, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. PROCEDURAL HISTORY
Defendant was originally charged and tried in February 2005 for the August 2003 attempted murders of Lasonya Fletcher, Robert Manriquez, and Fletcher’s then five-year-old son, K.L. (Pen. Code, §§ 664, 187, subd. (a).) The attempted murder charge involving K.L. never went to the jury. It was dismissed at the close of the People’s case based on insufficient evidence that defendant intended to kill the child. (§ 11181.1.) The jury failed to reach a verdict on the attempted murder charges involving Fletcher and Manriquez, and a mistrial was declared on these counts.
All further statutory references are to the Penal Code unless otherwise indicated.
After defendant’s first trial, an amended information was filed, again charging defendant with the attempted murders of Fletcher and Manriquez (§§ 664, 187, subd. (a); counts 1 & 2), and this time charging defendant with assaulting K.L. with a firearm (§ 245, subd. (a)(2); count 3). On the eve of defendant’s second trial in October 2005, the defense moved to dismiss count 3. The People did not oppose the motion, and the trial court granted it. Thus, in his second trial, defendant was not charged with any crime involving K.L.
The jury in defendant’s second trial found him guilty as charged of attempting to murder Fletcher and Manriquez in counts 1 and 2. The jury also found that defendant personally used and intentionally discharged a firearm proximately causing great bodily injury, and inflicted great bodily injury, in counts 1 and 2. (§§ 12022.53, subds. (b)-(d), 12022.7, subd. (a).) Defendant was sentenced to 11 years 4 months in prison, plus 50 years to life, and appeals.
Defendant’s total sentence consisted of the upper term of nine years on count 1, plus one-third the midterm of two years four months on count 2, plus 25 years to life for each of the section 12022.53 subdivision (d) enhancements on counts 1 and 2. Additional 10- and 20-year terms were imposed but stayed, respectively, on the section 12022.53, subdivisions (b) and (c) enhancements on counts 1 and 2, pursuant to section 12022.53, subdivision (f). Additional three-year terms were imposed but stayed on the great bodily injury enhancements on counts 1 and 2. (§ 12022.7, subd. (a).)
II. DEFENDANT’S CONTENTIONS ON APPEAL
First, defendant contends the trial court abused its discretion by admitting into evidence an unredacted tape of a 911 call in which Fletcher told the dispatcher that her then five-year-old son K.L. had been shot and they were applying pressure to his wounds. He claims all of the references to K.L. on the tape were irrelevant, more prejudicial than probative, and violated his right to due process. We reject this claim. The trial court reasonably concluded that all of the references to K.L. were both relevant to and more probative than prejudicial on the issue of Fletcher’s credibility and, more specifically, her ability to recall and describe the events of that evening. Fletcher identified defendant as the shooter, and her ability to recall and describe the events that occurred shortly before and at the time of the shooting were seriously contested at trial.
Second, defendant claims that the trial court’s imposition of the upper term on count 1 and consecutive terms on the firearm enhancements in counts 1 and 2 violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). We conclude that the upper and consecutive terms were properly imposed under the state Supreme Court’s recent decision in People Black (2007) 41 Cal.4th 799 (Black II). We therefore uphold defendant’s sentence and do not remand the matter for resentencing.
Third and lastly, defendant claims that the additional terms that were imposed but stayed on his section 12022.53, subdivisions (b) and (c) firearm enhancements must be stricken pursuant to section 12022.53, subdivision (f). For the reasons discussed below, we agree that the 10- and 20-year terms that were imposed but stayed under section 12022.53, subdivisions (b) and (c) must be stricken, and hereby strike those terms. We disagree, however, that the enhancement findings themselves must be stricken. We remand the matter with directions to amend defendant’s abstract of judgment accordingly. In all other respects, we affirm the judgment.
III. THE EVIDENCE PRESENTED AT TRIAL
A. Prosecution Evidence
On August 2, 2003, defendant picked up Fletcher and her friend Katie, both of whom were prostitutes. He agreed to pay Fletcher $50 in exchange for having sex with him. He was driving a rented white Ford Focus. He took Fletcher and Katie to Fletcher’s residence, where Fletcher lived with Manriquez and K.L. When they arrived, Manriquez was present and claimed he clearly saw defendant in a lit room from a distance of 10 feet.
At Fletcher’s residence, defendant, Fletcher, and Katie went into a bedroom and consumed cocaine. Afterwards, defendant and Fletcher left in defendant’s white Ford Focus. They went to the Fairway Motel, where they consumed crack cocaine and had sex. When defendant went into the bathroom, Fletcher took $100 from his pants pocket.
Records from the Fairway Motel showed that Fletcher checked in. The license number of defendant’s rented white Ford Focus was recorded on the registration card. The registration clerk did not recall Fletcher being drunk or under the influence of drugs when she checked in.
Defendant drove Fletcher back to her home around 10:30 or 11:00 p.m. Katie then left with defendant. Fletcher bragged to Manriquez about stealing money from defendant. She claimed defendant had only paid her $30 rather than the $50 they agreed upon. Fletcher consumed more drugs, left her residence again, and returned around 12:30 a.m.
Between 1:00 and 2:30 a.m., defendant returned to Fletcher’s residence and began calling her to come outside. Fletcher asked Manriquez to accompany her to the door, and he did so. Manriquez was standing approximately two feet from Fletcher when she opened the door. Fletcher and Manriquez could both see defendant. Fletcher testified she could see defendant by her porch light. Several times, defendant called to Fletcher to step outside because he wanted to talk to her.
After Fletcher stepped outside, defendant displayed a gun and began shooting. He fired a total of 10 shots. Manriquez was shot in his chest and groin, and Fletcher was shot in her hip and wrist. K.L. was shot in his finger and stomach.
Manriquez called 911. He told the dispatcher that he had been shot by a man in a white car. He described the man as being about 38 years old, wearing a black shirt and blue shorts. He said the man had been at the residence earlier that evening. Fletcher also spoke to the dispatcher. She said that she and her five-year-old son had been shot, and the man who shot them was named Ken. An audiotape of the entire 911 call was played to the jury and admitted into evidence.
Several days after the shooting, Manriquez and Fletcher independently identified defendant from a photo lineup. Manriquez and Fletcher also identified defendant as the shooter at trial. Manriquez testified he had used cocaine during the morning of August 2, but was not under the influence when he first saw defendant or at the time of the shooting. In a prior proceeding, however, he said he used cocaine around 8:00 or 9:00 p.m. on August 2, shortly before he first saw defendant at Fletcher’s house. He had one felony conviction for theft and several misdemeanor convictions for theft.
Carol Barnett was the mother of defendant’s son. On August 1, she rented a white Ford Focus and allowed defendant to use it because it was near his birthday. Defendant did not tell Barnett how he planned to use the car. Records reflected that a white Ford Focus was rented to Barnett on August 1 and returned to the rental car company on August 4. During that time, the car had been driven approximately 400 miles.
B. Defense Evidence
Defendant presented an alibi defense. The defense did not deny that defendant was with Fletcher and had been to her residence during the evening of August 3. Instead, it presented the prior testimony of defendant’s cousin, Kurt Jefferson, that defendant was at Jefferson’s residence in Victorville at the time of the shooting. Another cousin, Freddy Taylor, arrived at Jefferson’s residence after defendant arrived. The three of them had made plans to go to a club to celebrate defendant’s birthday, but by the time Taylor arrived it was too late to go to the club. Instead, they stayed at Jefferson’s residence drinking beer. According to Jefferson, defendant passed out on his couch around 3:00 a.m. and left the next morning around 9:00 a.m. Defendant was driving a white Ford Focus.
The defense also relied on statements that Manriquez and Fletcher made shortly after the shooting and in their prior testimony, to show that their identification of defendant was not credible. When interviewed at the hospital shortly after the shooting, Manriquez told police that he saw defendant for the first time when he and Fletcher answered a knock on the door just prior to the shooting.
Also at the hospital, Manriquez said the shooter was 27 years old, five feet eight inches tall, weighed about 200 pounds, and was wearing a blue shirt and blue shorts. Defendant’s booking photo shows he is 5 feet 10 inches tall, weighs 220 pounds, and was 42 years old at the time of the offense. Manriquez described the car leaving the scene of the shooting as a late model white Chevy, possibly a Malibu or Cavalier, not a Ford Focus. An officer who responded to the scene was told the vehicle was a white Chevy Cavalier. In the 911 tape, Manriquez said the shooter was about 38 years old, had been to the house earlier that evening, and was wearing a black shirt and blue shorts.
Fletcher was interviewed at her home on August 4, after her release from the hospital. She claimed that, before the evening of August 2, she had never met Katie or the man she identified to the dispatcher as “Ken,” and she met them only to buy drugs. She took them back to her home to use drugs. Ken later grabbed a gun from his waistband and began shooting at her.
IV. DISCUSSION
A. The 911 Tape Was Properly Admitted Without Redactions
1. Background
Before trial, defendant made a motion on relevance and Evidence Code section 352 grounds to redact portions of the 911 audiotape in which Fletcher told the dispatcher that her five-year-old son K.L. had been shot and that pressure was being applied to the child’s wounds. Defense counsel argued that these portions of the tape were both irrelevant and more prejudicial than probative, because defendant was no longer being charged with any crime involving K.L.
As discussed, defendant was originally charged with attempting to murder K.L., but that charge was dismissed at the close of the People’s case in defendant’s first trial based on insufficient evidence. (§ 11181.1.) Defendant was later charged with assaulting K.L. with a firearm (§ 245, subd. (a)(2)), but that charge was dismissed pursuant to defendant’s unopposed motion before defendant’s current trial. No part of the 911 tape was played in defendant’s first trial.
After the parties were unable to reach an agreement regarding the redactions, the trial court denied the motion, reasoning that the entire tape was both relevant to and more probative than prejudicial of Manriquez’s and Fletcher’s “state of mind, [and] ability to recall and describe the events, especially since one issue is drug use of these two people and their ability to observe, comprehend, and relate what happened.” The court also noted that “[t]he mention of the child [was] minimal in light of the relevance, and the whole tape can come in.”
On this appeal, defendant claims the trial court prejudicially erred and abused its discretion in denying his motion, and that the admission of the entire tape violated his right to due process. He argues that the admission of the entire tape “was unfair, would confuse the jury and was more prejudicial than probative.” We disagree.
2. Analysis
A trial court has no discretion to admit irrelevant evidence. (Evid. Code, § 350; People v. Derello (1989) 211 Cal.App.3d 414, 425-426.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Under Evidence Code section 352, the trial court may exclude relevant evidence “if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
In determining whether to exclude relevant evidence under Evidence Code section 352, the trial court must consider “‘the relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relevant to the main or only a collateral issue, and the necessity of the evidence to the proponent’s case as well as the reasons recited in [Evidence Code] section 352 for its exclusion.’” (People v. Wright (1985) 39 Cal.3d 576, 585.) An appellate court will not disturb a trial court’s decision to exclude evidence unless the trial court exercised its discretion “‘in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
“‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ [Citations.]” (People v. Zapien (1993) 4 Cal.4th 929, 958.) In other words, evidence should be excluded as unduly prejudicial when it “inflame[s] the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)
Defendant argues that the portions of the 911 tape he sought to redact—that is, all of the references to five-year-old K.L., including his age, the fact he was shot, and that pressure was being applied to his wounds—were both irrelevant and unduly prejudicial. The evidence was irrelevant, he argues, because he was not being charged with any crime involving K.L., and unduly prejudicial because it involved the shooting of a five-year-old child. He reasons the jury was likely to infer that he escaped punishment for shooting K.L., and “punish” him for that uncharged offense by convicting him of attempting to murder Manriquez and Fletcher.
We disagree with defendant’s analysis and view of the evidence. As the trial court recognized, Manriquez’s and Fletcher’s credibility were key issues in the case. More specifically, the reliability of their identification of defendant as the shooter—and their ability to recall and describe the events of that evening—was subject to serious attack based on their extensive drug use that evening. The portions of the 911 call in which Fletcher made references to K.L.—Manriquez did not mention K.L. on the tape—were both relevant to and highly probative of Fletcher’s ability to comprehend her surroundings and recall and describe events, despite her extensive drug use prior to and up to the time of the shooting.
During the 911 call, Manriquez handed the phone to Fletcher, and Fletcher was asked whether she had been shot. She responded that she and her “baby” had both been shot. She was then asked how old her baby was. She responded that he was five. Next, she was asked where her baby had been shot. She said he was shot in the back and stomach, and she was putting pressure on the wounds. She was then asked the color of the weapon and the shooter’s name. She said the weapon was black and the “guy’s name” was Ken.
The entire 911 tape was not very long, and the above described portion of the tape is the only portion in which Fletcher spoke. Aside from the color of the gun and the shooter’s name, the questions concerning K.L. were the only questions the dispatcher asked Fletcher. Thus, redacting the references to K.L. from the tape would have eliminated most of the evidence that tended to show that Fletcher was able to reliably comprehend, recall, and describe the events of that evening. Furthermore, most of the evidence concerning Fletcher’s credibility was negative. She stole $100 from defendant, she was a prostitute, and she had used drugs extensively that evening.
Indeed, in view of the negative evidence concerning Fletcher’s credibility, it is not surprising the prosecutor replayed the tape in his closing argument and distributed transcripts of it to the jurors. In response, defense counsel argued, “The lights were low, the victims were high, and that was the perfect combination to misidentify.” This exchange showed that, without the 911 tape in its entirety, the jury would have been deprived of a highly probative piece of evidence that tended to bolster Fletcher’s credibility on the identification issue.
Nor do we believe that the tape’s references to K.L. were substantially likely to inflame the emotions of the jury and motivate them to punish defendant. As the trial court said, the references to K.L. were “minimal.” Moreover, the prosecutor did not use the tape’s references to K.L. to inflame the jury against defendant. Instead, the prosecutor argued that the entire contents of the tape showed that Manriquez and Fletcher did not have an opportunity to talk to each other before the 911 call, and that their independent identifications of defendant as the shooter on the tape were credible.
Defendant’s claim of federal constitutional error also fails. Contrary to defendant’s argument, the admission of the references to K.L. on the 911 tape did not deprive defendant of a fair trial. “[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error.” (People v. Benevides (2005) 35 Cal.4th 69, 91, fn. omitted.) And here, the references to K.L. were properly admitted.
B. The Trial Court’s Imposition of the Upper Term and the Consecutive Terms Did Not Violate Defendant’s Right to a Jury Trial
As noted, defendant was sentenced to 11 years 4 months, plus 50 years to life, consisting of the upper term of nine years on count 1, plus one-third the midterm of two years four months on count 2, plus 25 years to life for each of the section 12022.53 subdivision (d) enhancements on counts 1 and 2. On this appeal, defendant claims that the imposition of upper and consecutive terms violated his right to a jury trial under Cunningham, supra, 127 S.Ct. 856.
We reject these claims. Under the California Supreme Court’s recent decision in Black II, the imposition of the upper and consecutive terms did not violate defendant’s right to a jury trial.
1. Relevant Background
In imposing the upper term, the trial court found no circumstances in mitigation. (Cal. Rules of Court, rule 4.423.) It found several circumstances in aggravation related to the crime and the defendant: (1) the victims were vulnerable (rule 4.421(a)(3)); (2) the manner in which the crime was carried out indicated planning and sophistication (rule 4.421(a)(8)); (3) defendant had engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)); (4) his prior convictions as an adult were numerous and of increasing seriousness (rule 4.421(b)(2)); (5) he had served several prior prison terms (rule 4.421(b)(3)); and (6) his prior performance on parole was unsatisfactory (rule 4.421(b)(5)). In imposing the consecutive life terms on the section 12022.53, subdivision (d) enhancements on counts 1 and 2, the trial court found that the two attempted murder convictions involved separate acts of violence. (Rule 4.425(a).)
All further references to rules are to the California Rules of Court.
2. Applicable Law and Analysis
In Cunningham, the United States Supreme Court held that the imposition of an upper term sentence under California’s determinate sentencing law (DSL), based on a judge’s finding by a preponderance of the evidence that circumstances in aggravation outweighed circumstances in mitigation, violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 871.) The high court reasoned that any fact that exposes a defendant to a greater potential sentence than the statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Id. at pp. 863-864.) The high court also held that the middle term sentence is the maximum sentence a judge may impose under the DSL without the benefit of facts reflected in the jury’s verdict—that is, facts found true by a jury beyond a reasonable doubt—or admitted by the defendant. (Id. at p. 868.)
After Cunningham was decided, the California Legislature amended the DSL by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40).) In response to the Legislature’s amendment of the DSL, the Judicial Council amended the sentencing rules effective May 23, 2007. Our references to provisions of the DSL and to the California Rules of Court are to the statutes and rules as they read prior to these amendments.
On July 19, 2007, the state Supreme Court decided Black II, supra, 41 Cal.4th 799, following the United States Supreme Court’s remand of People v. Black (2005) 35 Cal.4th 1238 (Black I) to the state Supreme Court for reconsideration in light of Cunningham. The court in Black II held that, under the DSL, the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (See § 1170, subd. (b); Black II, supra, at p. 815, citing People v. Osband (1996) 13 Cal.4th 622, 728.) Accordingly, the court reasoned that a trial court’s finding of a single factor in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, supra, at p. 812.) “[A]ny additional factfinding engaged in by the trial court . . . does not violate the defendant’s right to jury trial.” (Ibid.)
An aggravating circumstance is one that “makes the offense ‘distinctively worse than the ordinary.’ [Citations.]” (Black II, supra, 41 Cal.4th at p. 817.) Accordingly, aggravating circumstances include not only those listed in rule 4.421, but also “[a]ny other factors statutorily declared to be circumstances in aggravation” (rule 4.421(c)), and any other facts “reasonably related to the decision being made” (rule 4.408(a)).
The court in Black II explained its analysis on this point as follows: “Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at pp. 815-816, italics added.)
Here, the trial court expressly found that defendant’s prior convictions as an adult were numerous and of increasing seriousness. (Rule 4.421(b)(2).) This finding satisfied Sixth Amendment requirements. (Black II, supra, 41 Cal.4th at p. 819-820.) As the Black II court observed, the United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Id. at p. 818, citing Cunningham, supra, 127 S.Ct. at p. 868; Blakely v. Washington (2004) 542 U.S. 296, 301 [124 S.Ct. 2531, 159 L.Ed.2d 403]) (Blakely); Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] (Almendarez-Torres).) “‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Black II, supra, at p. 818, citing Almendarez-Torres, supra, at p. 243.)
Furthermore, determining whether a defendant has suffered prior convictions as an adult and whether those convictions are “numerous or of increasing seriousness” (rule 4.421(b)(2)) “require[s] consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at p. 820, citing People v. McGee (2006) 38 Cal.4th 682, 706.) Here, the record indisputably supports the trial court’s findings that defendant’s convictions as an adult were numerous and of increasing seriousness. (Black II, supra, at p. 818.) Defendant was therefore eligible for the upper term, and the trial court did not violate his right to a jury trial in sentencing him to the upper term. (Id. at p. 820.)
According to defendant’s probation report, which the trial court expressly relied upon in making its recidivism findings, defendant’s first convictions as an adult were in 1982 for carrying a concealed weapon in a vehicle (Pen. Code, § 12025, subd. (a)) and carrying a loaded firearm (Pen. Code, § 12031, subd. (a)). For these offenses, he was sentenced to 12 months’ probation and five days in jail. In 1986, he was convicted of driving under the influence causing injuries (Veh. Code, § 23153, subd. (a)), a felony, for which he was sentenced to 16 months in prison. Also in 1986, he was again convicted of carrying a loaded firearm (Pen. Code, § 12031, subd. (a)), for which he was sentenced to 24 months’ probation and 10 days in jail. In 1992, he was again convicted of felony driving under the influence (Veh. Code, § 23152, subds. (a) & (b)), of carrying a concealed weapon in a vehicle (Pen. Code, § 12025, subd. (a)), and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)). For his 1992 offenses, he was sentenced to two years four months in prison. In 1996, he was again convicted of being a felon in possession of a firearm. (Pen. Code, § 12021, subd (a).) For this offense, he was sentenced to 16 months in prison, suspended, and three years’ felony probation. In 1997, he violated probation and was sent to prison, and in 2001 he violated parole and was returned to prison. Finally, in August 2003, he committed the current offenses of attempted murder.
Notwithstanding the holding of Black II that a single factor in aggravation that satisfies Sixth Amendment requirements renders the defendant eligible for the upper term and is by itself sufficient to uphold an upper term sentence (Black II, supra, 41 Cal.4th at pp. 816), defendant argues that the trial court should be allowed to reconsider his sentence “using only those factors that pass Apprendi/Cunningham” or that satisfy Sixth Amendment requirements. He observes that the trial court’s evaluation of the appropriate weight to be given aggravating and mitigating circumstances is “particular to the case under consideration” and is “a process which by its nature is incapable of precise description.” (People v. Brown (1985) 40 Cal.3d 512, 541.) We disagree that the matter must or should be remanded. The holding of Black II is clear and binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Finally, we reject defendant’s claim that the trial court violated his right to a jury trial by imposing the consecutive terms of 25 years to life for the section 12022.53, subdivision (d) enhancements on counts 1 and 2. Section 669 requires that when a person has been convicted of two or more offenses, the court must decide whether the terms are to run consecutively or concurrently. Cunningham did not address whether the principles established in Apprendi and Blakely apply to consecutive term sentences under section 669. (See Black II, supra, 41 Cal.4th at p. 821.) In Black I, the state Supreme Court held that a “jury’s verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense.” (Black I, supra, 35 Cal.4th at p. 1263.) Accordingly, the court in Black II reaffirmed its previous holding that a trial court’s imposition of consecutive sentences does not violate a defendant’s Sixth Amendment right to a jury trial. (Black II, supra, at p. 821; Black I, supra, at pp. 1262-1263, fn. omitted.)
C. The Additional Terms That Were Imposed But Stayed on the Section 12022.53, Subdivisions (b) and (c) Enhancements Are Not Required to be Stricken
Finally, defendant claims that the additional terms that were imposed but stayed on his section 12022.53, subdivisions (b) and (c) firearm enhancements must be stricken pursuant to section 12022.53, subdivision (f). As noted, defendant was sentenced to two consecutive terms of 25 years to life for the section 12022.53 subdivision (d) firearm enhancements on counts 1 and 2. Additional 10- and 20-year terms were imposed but stayed, respectively, on the section 12022.53, subdivisions (b) and (c) enhancements on these counts.
Defendant’s claim is based on the language of section 12022.53, subdivision (f). The statute provides that “[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.” (§ 12022.53, subd. (f).) Defendant maintains that, under this provision, his section 12022.53, subdivisions (b) and (c) enhancements must be stricken.
The court in People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte) considered and rejected the same argument defendant raises here. The Bracamonte court reasoned: “If viewed in isolation, the language of section 12022.53, subdivision (f) would dictate that the trial court in this case could only impose the 25-year-to-life enhancement [under section 12022.53, subdivision (d)] and must strike the findings underlying the 10-year (§ 12022.53, subd. (b) [personal firearm use]) and 20-year (§ 12022.53, subd. (c) [intentional and personal discharge of firearm]) enhancements.” (Id. at p. 713.) However, the court said, “[s]uch construction of section 12022.53 . . . would conflict with subdivision (h) of that section, which provides: ‘Notwithstanding Section 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.’” (Ibid.) Accordingly, the court held that defendant’s section 12022.53 subdivisions (b) and (c) enhancements were properly imposed and stayed and were not required to be stricken, even though greater, section 12022.53 subdivision (d) enhancements were also imposed.
Defendant argues that Bracamonte is incorrect on this point. He emphasizes that subdivision (f) of section 12022.53 expressly states that “only the greatest enhancement” may be “imposed” under section 12022.53. He also observes that the state Supreme Court has granted review in People v. Gonzalez (2006) 142 Cal.App.4th 436, review granted September 22, 2006, S149898 (Gonzalez) to determine whether lesser-term enhancements under section 12022.53 must be stricken or imposed and stayed, and urges this court to adopt the reasoning of Gonzalez.
Defendant reasons that only the enhancement providing for the longest term of imprisonment may be imposed under section 12022.53, subdivision (f). He harmonizes subdivisions (f) and (h) by reasoning that subdivision (h) does not refer to any provision of section 12022.53, but only to section 1385 and “other” provisions of law. He thus interprets subdivision (h) as prohibiting the court from exercising its discretion to strike an allegation or finding under section 12022.53, but not as prohibiting the court from properly sentencing the defendant under the statute. Thus, he concludes that a lesser-term enhancement under section 12022.53 must never be imposed when a greater-term enhancement is imposed under the statute. And, if a lesser-term enhancement is imposed, that lesser-term enhancement must be stricken.
We agree that only the greatest-term enhancement may be imposed under section 12022.53, subdivision (f). But we disagree with defendant’s reasoning that a lesser-term enhancement allegation or finding must be itself stricken, as opposed to the term or sentence that was imposed but stayed on the lesser-term enhancement. There is a difference between enhancement allegations, enhancement findings, and actual sentence enhancements. Striking an enhancement allegation or finding expressly violates subdivision (h), but striking an actual sentence enhancement does not. In this manner, subdivisions (h) and (j) are reconciled. We therefore conclude that the 10- and 20-year terms that the trial court imposed but stayed on the section 12022.53 subdivisions (b) and (c) enhancement findings must be stricken. The enhancement findings themselves, however, must not be stricken.
V. DISPOSITION
The 10- and 20-year terms that were imposed but stayed under section 12022.53, subdivisions (b) and (c), respectively, are hereby stricken. The underlying enhancement findings themselves, however, must not be stricken. The matter is remanded to the trial court with directions to amend defendant’s abstract of judgment to reflect this change, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.