Filed 4/18/16 P. v. Peacock CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,                                                                                  C070068

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F07374)

         v.

JAMES PEACOCK,

                   Defendant and Appellant.



         Defendant James Peacock appeals after being convicted of first degree burglary
(Pen. Code, § 4591 (count one)), petty theft (§ 484 (count two -- lesser included offense
to first degree robbery)), assault with a firearm (§ 245, subds. (a)(2) (count three)),
assault with a deadly weapon, a knife (§ 245, subds. (a)(1) (count four)), felon in
possession of a firearm (§ 12021, subd. (a)(1) (count six)), with true findings on
enhancements for personal use of a firearm (§ 12022.5, subd. (a)(1)) and personal




1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.

                                                             1
infliction of great bodily injury (GBI) (§ 12022.7, subd. (a)). He was sentenced to an
aggregate term of 31 years 4 months.
          On appeal, defendant contends: (1) there was insufficient evidence he personally
inflicted GBI; (2) the trial court erred by instructing the jury on “ ‘group beating’ ”; (3)
the trial court violated the dual use prohibition when sentencing defendant to the upper
term on the first degree burglary charge and the firearm use enhancement; and (4) the
disparate sentence imposed on defendant compared to the sentence imposed on his
codefendant violated his jury trial and due process rights.
          We modify the sentence to correct a section 654 sentencing error and otherwise
affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
                           The Charged Offenses and Allegations
          Defendant and codefendant Julia Fox2 were charged with first degree burglary
involving the residence of victim Robert Hill (§ 459 (count one)); first degree robbery
(§ 211 (count two)); assault with a firearm (§ 245, subd. (a)(2) (count three)); assault with
a deadly weapon, namely a knife (§ 245, subd. (a)(1) (count four)); and conspiracy to
commit robbery (§ 182, subd. (a)(1)) (count five)). In addition, defendant was charged
with being a felon in possession of a firearm (§ 12021, subd. (a)(1) (count six)).
          In connection with counts one, two, three, and four, it was alleged that both
defendants personally inflicted GBI (§12022.7, subd. (a).
          In connection with counts one and three, it was further alleged that defendant
personally used a firearm under section 12022.5, subdivision (a) and in connection with
count two, it was alleged that defendant personally used a firearm under section
12022.53, subdivision (b). In connection with count two, the information alleged against




2   Fox is not a party to this appeal.

                                                2
Fox that a principle was armed with a firearm (§ 12022, subd. (a)(1) and in connection
with counts two and four, it alleged that she personally used a deadly weapon, namely a
knife (§ 12022, subd. (b)(1)).
        It was also alleged that the robbery charged in count two was committed by
defendants who entered a structure acting in concert (§213, subd. (a)(1)(A)).
        Lastly, it was alleged that defendant sustained a prior strike conviction (§§ 667,
subds. (b)-(i), 1170.12) and a prior serious felony offense conviction (§ 667, subd. (a)).
                                   Prosecution Evidence
        At trial, the victim testified he managed a storage company and lived in an
apartment above the business. Fox was the victim’s methamphetamine supplier.3 The
victim also testified that prior to the day on which the charged crimes occurred, he sent
Fox a text message in which he had offered to pay her money if she performed oral sex
on him. Fox replied, “[O]kay,” but never showed up and one to two weeks went by
before the victim saw her next.
         Around 8:00 p.m. on November 18, 2010, the victim received a text message
from Fox. The text indicated she was getting off the freeway near his home, about five
minutes away. He was a little surprised to hear from her. He had not invited Fox to visit
that night and she had not asked to visit. When she arrived, he let her vehicle in through
the facility gate and met her outside his garage door. He looked into her vehicle and did
not see anyone else inside. Fox carried a backpack with her. Fox asked the victim if he
would like to smoke methamphetamine with her and she also said she needed to charge
her cell phone. The two walked up the stairway in the garage and entered the victim’s
apartment.




3   The victim testified under a grant of use immunity.

                                              3
       While Fox was seated in the victim’s living room, she was looking at her cell
phone and possibly pushing buttons. She asked the victim to clean his pipe, and he went
into the kitchen and then the bedroom to do so. Fox told him she had to get something
out of her car. As the victim was drying the pipe with a blow-dryer in his bedroom, he
was surprised to see a man, later identified as defendant, masked by a red bandana,
appear in the bedroom doorway, pointing a gun at the victim’s head. Using the victim’s
first name, defendant ordered the victim to lay face down on his bed with his hands
behind his back. Defendant threatened to “blow [the victim’s] fucking head off” if he did
not comply. As the victim laid down on the bed, defendant asked whom the victim had
disrespected, then asked, “ ‘Who is the girl that came here tonight?’ ” The victim replied
that it was Fox, and defendant said, “ ‘That’s who you disrespected.’ ” Defendant
repeatedly threatened to “blow [the victim’s] fucking head off,” and the victim felt the
gun press against his head.
       At some point, defendant climbed on the victim’s back. From this position,
defendant beat the victim on the back of the head with an object.
       The victim could hear Fox walking around the bedroom, rummaging through
drawers. He also heard her doing the same thing briefly in the living room. Fox went
from one dresser to another in the bedroom. The victim asked Fox what was going on.
She commented about the victim having offered her money to perform oral sex upon him.
She was “pissed off” about that, but had not previously said anything to the victim about
it. At the time she made that comment, she was going through the dresser drawers. Fox
grabbed the victim by the hair, lifted his face up and sprayed him in the eyes with mace
or pepper spray. She then started “beating down on” the victim’s face with her fist. At
some point, the victim lost consciousness. The victim testified, “I think I got knocked out
pretty quick . . . .” When asked whether he had been “knocked out” before or after he
was maced, the victim indicated he had been going in and out of consciousness and
thought that after he was maced, he was “knocked out again or something.”

                                             4
       When the victim regained consciousness, he charged defendant, who was blocking
the bedroom doorway. The victim said there was a “massive struggle” to get out of the
house. At the time of the struggle, the victim was “half unconscious.” He did not recall
seeing Fox at that time. The victim ran down the stairs, but the garage door had been
barred by a rod, he described as a stiff piece of wire that was half the size of a pinky
finger tip in diameter, bent in a U-shape. He had previously fashioned this rod to lock the
garage door, but did not remember closing the garage door when Fox came in. He had to
stop to remove the rod. As the victim lifted the garage door, he was struck on the head
from behind with a hard object and his knees went weak, but he was able to escape. He
ran to a gym located across the street and collapsed in its doorway. He then noticed for
the first time that he was bleeding, with blood pouring out of his stomach. He thought he
had been shot because he had seen a gun, but had not seen a knife and did not recall being
stabbed. He did not remember being struck in the abdomen area. The gym staff called
911. While waiting for the ambulance, the victim slipped in and out of consciousness.
       A stipulation was read to the jury that the victim “was transported to [the hospital]
where he was treated for a stab wound to his abdomen. [He] suffered and was treated for
injuries to his colon and a lung [due] to the stabbing. [He] also received sutures to his
face and right hand due to lacerations. [He] did not receive treatment for any injuries to
his eyes. [He] remained in the hospital for 6 days prior to release.” There was no
mention of blunt force injuries in the stipulation.
       Upon returning home, the victim discovered his laptop, cell phone, and banking
bag were missing.
       The jury was shown recordings from surveillance video at the storage unit. The
recordings showed: A dark SUV arrived at 8:10 p.m. and entered the gate at 8:12 p.m.;
Fox entered through the garage at 8:13 p.m.; the garage door reopened and a male subject
entered at 8:18 p.m.; the garage door reopened and the victim ran out at 8:23 p.m.; a few
seconds later the male subject exited and ran towards the main gate but then turned and

                                              5
walked back, reentered the garage at 8:24 p.m., then exited again holding what appeared
to be a handgun; Fox ran from the garage holding the backpack at 8:24 p.m.; and the
SUV left at 8:25 p.m.
         Cell phone records showed calls and texts from Fox’s phone. About a minute
before the male entered the victim’s apartment, a text was sent from Fox’s phone to
defendant’s phone which read, “Win i tex u ur gona hav to rush the door as soon as i open
it.” Both phones were “pinging” off the same cell tower about a half-mile from the crime
scene.
         At 8:49 p.m., about half an hour after the assault, a text was sent from Fox’s phone
to a different number stating, “Im going to prison babe im scard.” Between 8:53 p.m. and
12:47 a.m., Fox texted a different number: “I need u to get me now plz i fuked up” and
“[i]ts 911 for real.” A responding text said, “Baby im all the way in l.a visiting my moms
julia.” Another text from Fox’s phone said: “Omg i think i killed him.” The response
asked who and if everything was okay. Fox texted, “No no its not.” Her correspondent
advised, “Okay wipe the place dwn an get out mama.” Fox replied, “Its to late for dat im
out.” Her correspondent then said, “Man its never to late to clean away evidence.” Fox
said, “Yea it is win muther fkr leakn every were runing down street scream n n he no my
name.” This prompted a query, “Jesus christ why you hit him in the head.”4 Fox replied,
“I stabbed him several times.” Her correspondent responded, “Dam thats wut he get for
putn his hands on u lol karma.” Fox reported it happened “at his business” and “[t]here
were cameras,” and “[i]t went realy bad im tryn to tell u.” Her friend asked why it went
bad. She replied, “Does it realy matter i gota go.” In the days after the assault, a number
of calls were made from defendant’s phone to Fox’s phone.




4  Fox later testified that she had spoken briefly with this friend. She said she started to
tell the friend what happened and then defendant walked into the room.

                                              6
                                     Defense Evidence
       Fox testified. She denied sending the text message “ ‘OMG, I think I killed
him.’ ” She admitted she sent the text message, “ ‘I stabbed him several times’ ” but
claimed it was a typographical error, and she meant to text, “J stabbed him several
times,” referring to defendant James Peacock. Fox admitted sending text messages to
friends about going to prison and “fuck[ing] up really bad” but claimed they were
prompted by her fear that she would go to prison for not calling 911.
       Fox testified that she had known the victim for about four years and had worked
odd jobs at his storage facility. He had talked about making her assistant manager. Fox
supported herself by selling methamphetamine and had previously sold the drug to the
victim. Fox and defendant were “associates” who had known each other since childhood
and at one time had a sexual relationship.
       Fox testified that on the night in question, defendant gave her a ride to visit a
friend in jail, but when they arrived she was unable to visit because all of the visiting
appointments had been booked. While she was at the jail, she called the victim, who
wanted her to bring him methamphetamine and talk about her employment situation.
Defendant agreed to take her there but asked her to drive because he was not feeling well.
At the victim’s apartment, Fox got a weird vibe from the victim, who had previously
asked her for sexual favors and to move in with him. The victim pulled out a pipe but she
asked him to clean it because it was dirty. As he cleaned the pipe in the kitchen, he
leered at her and made sexual comments about a “blow job.” She testified that she went
into the victim’s stepson’s bedroom to look for a cigarette lighter and texted defendant
because she was concerned about the victim’s behavior which had escalated to attempts
to “grab on me and stuff.” Fox said this was the text message in which she mentioned
rushing the door, and she was referencing the garage door in the event she had to flee the
apartment. She said she wanted defendant there to protect her if the victim chased her
outside.

                                              7
       Fox testified that the victim “started grabbing on my, my butt and trying to grab
my crotch from behind.” She spun and tried to push him away, but he got more
aggressive. She tried to “mace” him with pepper spray but it bounced off his eyeglasses
and just made him mad. He pushed her on the bed, grabbed at her breasts, and tried to
undo her pants. She used her knee as leverage trying to push him back, and she hit him
in the face with her left hand to knock the glasses off his face. He stumbled back. She
maced him. He called her a “stupid fucking bitch.” She ran down the stairs and opened
the garage door. Defendant was standing there with a gun in his hand. She had not
known he had a gun with him. Defendant ran up the stairs. Fox stood frozen. She heard
the victim screaming. She ran upstairs and saw defendant holding the victim face down
on the bed. Defendant asked her what had happened, and she said the victim tried to rape
her. Defendant commanded the victim to utter the name of the woman he had
disrespected. Fox said she did not call 911 because she was afraid defendant would do
something to her, or she might get in trouble because she was there to sell drugs, and she
did not want to lose her children.
       Fox said she went into the downstairs office to look for the manual override switch
to open the main gate. She found the switch but, before she could push it, she heard
“really horrible, horrible screaming,” and saw defendant come downstairs with his gun in
one hand and a knife in his other hand. There was “blood all over.” She knew defendant
always carried a knife but had not seen it that evening. She denied ever handling that
type of knife. As defendant came downstairs, he told her to go get the victim. She was
dumbfounded. Defendant ran after the victim. Fox ran to the truck but then returned
upstairs to retrieve her backpack. She removed a PlayStation from the backpack and left
it there. She returned to their vehicle. She testified that the backpack did not contain any
of the victim’s property when she left. Defendant drove them away from the scene.
Defendant asked Fox if the victim knew defendant’s name; Fox said no.



                                             8
       Fox testified that defendant took her to his friend’s home. When defendant left the
truck to see if his friend was home, Fox used her phone to try to get help but no one
believed her. At the friend’s home, defendant said he needed Fox’s phone and took it for
a couple of minutes. Fox made up an excuse about a drug transaction and went home by
herself.
       Fox denied ever talking to defendant about assaulting or stealing anything from
the victim.
       Defendant presented an alibi defense. He testified he was never at the crime
scene. He had a day job installing alarm systems and had a part-time business as a tattoo
artist. At the time of the charged crimes, he was doing a tattoo at a “tattoo party” in the
apartment of client Heather Shamblin.5
       Defendant testified Fox was an “old acquaintance” he rarely saw. He once helped
her find a place to stay when she was having problems with drugs and had her children
taken away from her. On the afternoon of November 18th, she phoned him and said she
knew someone who wanted a tattoo. She called back ten minutes later and asked
defendant to give her a ride to the jail. Around 3:00 or 4:00 p.m., he picked her up in the
vicinity of Fulton and Edison, drove her to the jail, let her borrow his cell phone, dropped
her off at the jail, and drove to his home, forgetting Fox had his cell phone.
       Defendant testified he was not driving his “Ford Chevy Blazer” that day, because
it had been in an accident on November 4th. The SUV was drivable, but he rarely drove
it. On the day in question, he was driving a Honda car borrowed from his
cousin/roommate. When he got home after dropping off Fox at the jail, his SUV was
missing. He did not file a police report, thinking someone may have taken it to a
mechanic for him. Yet he acknowledged he was upset about his missing vehicle, as



5 According to defendant, the party consisted of Shamblin and some children, with some
people stopping by for tattoos.

                                              9
attested by his wife Brandi Marcum, who was his girlfriend at the time. He and Brandi
drove the Honda to Shamblin’s apartment. He did not pay attention to the clock.
Defendant spent time discussing and drawing the design of the tattoo and checking the
Honda for his cell phone, which was missing. He used Brandi’s phone to call his own
but heard no ringing. It was dark outside when he started tattooing. It took a long time,
longer than it would have in his shop. During the tattooing, he took two or three breaks,
went outside, smoked cigarettes, and relaxed his hands. After completing the tattoo,
defendant and Brandi went to a friend’s home, smoked marijuana, left about a half hour
later and went home. Defendant could not sleep because his stomach was bothering him.
Days later, defendant’s SUV reappeared at his house. He said his phone and another
phone, which he was unfamiliar with, were inside of the SUV.
       Shamblin testified she did not know defendant or his girlfriend personally but
hired him as a tattoo artist. He arrived in a Honda just before dark on November 18,
2010, between 5:30 p.m. and 7:00 p.m. They discussed and he drew the design for the
tattoo, which took about an hour and a half. They took a cigarette break, and Shamblin
prepared something for her son to eat. Defendant then did the tattoo, which took about
three or four hours, stopping once for a five or ten minute cigarette break. Defendant was
at Shamblin’s home for about six hours total and left around midnight, give or take 20
minutes.
       Brandi Marcum testified in sync with defendant’s testimony. She said they left
their home around 4:30 p.m. and arrived at Shamblin’s apartment around 5:30 or 6:00
p.m. Defendant did not leave the apartment complex but did step outside a couple of
times for cigarettes. A tattoo like that would probably take about two hours, but it was
really hectic in the home, with people stopping by. Marcum and defendant left
Shamblin’s apartment around 11:00 or 11:30 p.m., went to a friend’s house for about 20
minutes, and then went home. They went to bed, but defendant got up and left the
bedroom. She fell asleep.

                                            10
                                 Verdicts and Sentencing
       The jury returned verdicts finding defendant guilty of first degree burglary with
personal use of a firearm and personal infliction of GBI (count one); not guilty of first
degree robbery, but guilty of petty theft as a lesser offense (count two); guilty of assault
with a firearm with personal use of a firearm and personal infliction of GBI (count three);
guilty of assault with a deadly weapon, a knife, with personal infliction of GBI (count
four); not guilty of conspiracy to commit robbery (count five); and guilty of being a felon
in possession of a firearm (count six).6
       Defendant admitted a prior strike and serious felony conviction from December
1997 for attempted voluntary manslaughter.
       The trial court sentenced defendant to an aggregate term of 31 years 4 months,
calculated as follows: The upper term of six years for first degree burglary, doubled to
12 years for the prior strike, plus the upper term of 10 years for the section 12022.5
firearm enhancement, and three years for the section 12022.7 GBI enhancement; a
consecutive 16-month sentence for felon in possession of a firearm (one-third the
midterm doubled for the prior strike); and a consecutive five-year term under section 667,
subdivision (a).7 The trial court suspended imposition of sentence on the petty theft and
assault counts and enhancements, noting the court was convinced defendant went to the


6  The jury found codefendant Fox guilty of first degree burglary in which a principal was
armed with a firearm and in which Fox personally inflicted GBI (count one); not guilty of
first degree robbery but guilty of the lesser offense of petty theft (count two); guilty of
assault with a firearm with personal infliction of GBI (count three); guilty of assault with
a deadly weapon, a knife, with personal infliction of GBI and personal use of the knife
(count four); and not guilty of conspiracy to commit robbery (count five).
7 The trial court sentenced Fox to a total of five years, calculated as follows: the low
term of two years for first degree burglary plus the low term of three years for the GBI
enhancement, with imposition of the firearm enhancement stayed and a concurrent 60-
day sentence for petty theft. The court stayed “[t]he terms of imprisonment” on the
assault counts under section 654.

                                             11
apartment to assist Fox and assault the victim, and the assault and weapons use were all
connected to that continuous transaction associated with the burglary.
                                         DISCUSSION
                                  I. Sufficiency of Evidence
       Defendant argues the evidence was insufficient to prove he (1) personally inflicted
great bodily injury (GBI) or (2) perpetrated or aided and abetted petty theft. We disagree.
       “ ‘The standard of appellate review for determining sufficiency of the evidence is
settled. “ ‘On appeal we review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence . . . .’ ” ’ ” (People v.
Howard (2010) 51 Cal.4th 15, 33.) “Under the substantial evidence rule, we must
presume in support of the judgment the existence of every fact that the trier of fact could
reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant reversal of the judgment.” (People v. Medina (2009) 46 Cal.4th 913, 924, fn. 2.)
                                A. Personal Infliction of GBI
       Defendant argues the only injuries qualifying for the GBI enhancement
(§ 12022.78) were the stab wounds, and there was no evidence he inflicted any of the stab
wounds, all of which were inflicted by Fox. However, the stab wounds were not the only
injuries. Defendant personally beat the victim on the head with a gun, and the victim lost




8  Section 12022.7 provides in part: “(a) Any person who personally inflicts great bodily
injury on any person other than an accomplice in the commission of a felony or attempted
felony shall be punished by an additional and consecutive term of imprisonment in the
state prison for three years. . . . [¶] . . .[¶] (f) As used in this section, ‘great bodily injury’
means a significant or substantial physical injury.”

                                                12
consciousness, even before Fox stabbed the victim. The loss of consciousness supports
the section 12022.7 finding against defendant.9
       The trial court instructed the jury that great bodily injury means “significant or
substantial physical injury. It is an injury that is greater than minor or moderate harm.”
This instruction was correct. (§ 12022.7, subd. (f), fn. 8, ante; CALCRIM No. 3160;
People v. Cross (2008) 45 Cal.4th 58, 63 (Cross).)
       Whether harm amounts to GBI is a question of fact for the jury. (Cross, supra, 45
Cal.4th at p. 64 [pregnancy without medical complications that results from unlawful but
nonforcible sexual conduct with a minor can support a GBI finding].) GBI is a
substantial injury beyond that inherent in the offense, but “to be significant or substantial
the injury need not be so grave as to cause the victim ‘ “permanent,” “prolonged,” or
“protracted” ’ bodily damage.” (Ibid.)
       GBI under section 12022.7 is “ ‘ “essentially equivalent” ’ ” to “serious bodily
injury” under the felony battery statute (§ 243, subds. (d), (f)(4)10), which specifies “loss
of consciousness” as an example of serious bodily injury. (People v. Wade (2012) 204
Cal.App.4th 1142, 1149-1150, citing People v. Burroughs (1984) 35 Cal.3d 824, 831,
overruled on another ground in People v. Blakely (2000) 23 Cal.4th 82, 89.) In Wade, the
defendant choked his girlfriend with so much pressure that she blacked out. (Wade, at
p. 1146.) She did not know for how long she was unconscious. (Ibid.) Her daughter
came to the victim’s room, and they yelled at the defendant until he left. (Id. at pp. 1146-



9  We do not rely on the People’s speculative theory that defendant may have also
stabbed the victim.
10 Section 243, subdivision (f)(4), states, “ ‘Serious bodily injury’ means a serious
impairment of physical condition, including, but not limited to, the following: loss of
consciousness; concussion; bone fracture; protracted loss or impairment of function of
any bodily member or organ; a wound requiring extensive suturing; and serious
disfigurement.” (Italics added.)

                                             13
1147.) The victim had bruises on her neck for a week, but the choking did not impair her
neck mobility, and she did not seek medical treatment. (Id. at p. 1147.) The Wade court
upheld the felony battery conviction, rejecting the defendant’s argument that medical
treatment was essential to a finding of serious bodily injury. (Id. at pp. 1147-1150.)
       Here, defendant acknowledges there was evidence that his beating of the victim’s
head with the gun caused the victim to lose consciousness. The severity of this injury is
apparent in that the victim’s unconsciousness was so deep that he was unaware he was
being stabbed with a knife.
       Defendant argues the loss of consciousness was not of sufficient duration to
constitute GBI. He notes section 12022.7, as initially enacted (Stats. 1976, ch. 1139,
§ 306), listed examples of GBI, including “ ‘ “[p]rolonged loss of consciousness.” ’ ”
Defendant quotes from People v. Nava (1989) 207 Cal.App.3d 1490, that GBI “must be a
significant and substantial injury as contrasted with injuries that could logically be
described as constituting only transitory and short-lived bodily distress that do not fall
within the contours of injuries that are severe and protracted.” (Id. at p. 1496 [concluding
that the trial court erred in instructing jury that bone fracture was GBI as matter of law],
citing People v. Johnson (1980) 104 Cal.App.3d 598, 609.) Defendant argues the loss of
consciousness in this case was “necessarily momentary” rather than prolonged, because
the surveillance video showed defendant was at the crime scene less than five minutes,
which included the time elapsed climbing the stairs, entering the bedroom, etc.
       However, defendant’s interpretation of the timeline does not show the loss of
consciousness was necessarily momentary. In any event, there is no duration test as
urged by defendant. Before section 12022.7 became operative, the Legislature
(§12022.7, as amended by Stats. 1977, ch. 165, § 94, p. 679) deleted the specified
examples of GBI and changed the definition of GBI from “ ‘serious impairment of
physical condition’ ” to “ ‘significant or substantial physical injury.’ ” (People v.
Escobar (1992) 3 Cal.4th 740, 747; People v. Caudillo (1978) 21 Cal.3d 562, 581.) In

                                             14
Caudillo, the court reasoned that the apparent legislative intent of the deletion was not to
lessen the magnitude of bodily injury required, but rather to preclude the possibility that
the listed examples would be viewed as all-inclusive. (Id. at p. 582.) The Caudillo court
held a “transitory and short-lived” injury did not constitute GBI. (Id. at p. 588.) That
wording was subsequently applied as a litmus test in some appellate cases such as those
cited by defendant here. However, our high court in Escobar later held “Caudillo erred
in concluding that the Legislature intended no change in the definition of ‘great bodily
injury’ when it discarded the specific criteria set forth in the original version of section
12022.7 and substituted the more general ‘significant or substantial physical injury’ test
then in use. Clearly, the latter standard contains no specific requirement that the victim
suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of
bodily function.” (Escobar, at pp. 749-750.) The Escobar court concluded that GBI
under section 12022.7 need not meet any particular standard for severity or duration, but
need only be a substantial injury beyond that inherent in the offense itself. (Escobar, at
pp. 746-747; see also People v. Le (2006) 137 Cal.App.4th 54, 58-60.)
       Here, there was sufficient evidence from which the jury could conclude the
victim’s loss of consciousness from the beating inflicted by defendant was a significant
and substantial injury constituting GBI.
                         B. Substantial Evidence of Petty Theft
       Defendant argues there was no evidence he took any property and therefore his
guilt must be predicated on aiding and abetting the theft by Fox, yet there is insufficient
evidence he aided and abetted the theft. He emphasizes the jury was not instructed on a
“natural and probable consequences” theory. We conclude the evidence was sufficient to
support a finding that defendant aided and abetted the theft without regard to the theory
of natural and probable consequences.
       A person aids and abets commission of a crime when he promotes, encourages, or
instigates the commission of the crime, by act or advice, with knowledge of the

                                              15
perpetrator’s unlawful purpose, and with the intent or purpose of committing, facilitating,
or encouraging the crime. (People v. Hill (1998) 17 Cal.4th 800, 851.) Advance
knowledge of the principal’s criminal purpose is not required. (People v. Swanson-
Birabent (2003) 114 Cal.App.4th 733, 742.) Whether the defendant aided and abetted a
crime is a question of fact, and on appeal all conflicts in the evidence and reasonable
inferences from the evidence are resolved in favor of the judgment. (People v. Mitchell
(1986) 183 Cal.App.3d 325, 329.)
       Here, there was evidence that defendant held the victim at gunpoint in the
bedroom, while the victim heard Fox moving around the apartment, opening and closing
drawers. Indeed, the victim heard Fox going through drawers in the bedroom while his
head was down and defendant was on top of him in the very same room. He also saw
Fox go from one dresser to another in the bedroom. Given defendant’s presence, he was
clearly aware of Fox’s activities in the bedroom while he was on top of the victim,
holding him at gunpoint. Further, since the victim heard Fox going through drawers
elsewhere in the apartment while defendant held him captive in the bedroom, it can be
inferred that defendant heard Fox’s activities also. And defendant later stood in the
doorway to the bedroom while the victim was unconscious and attempted to block the
victim’s escape while Fox was apparently elsewhere in the apartment.
       Defendant argues he did not take any property; he did not utter any words to Fox
about taking property; and the victim’s testimony established that defendant was
concerned only with the victim having disrespected Fox by sexually affronting her.
However, the evidence clearly shows that defendant facilitated the taking of property
with the knowledge that Fox was looking for items to take. And it could further be
inferred from the evidence that both the assault and the theft were payback for the sexual
affront.
       Substantial evidence supports defendant’s theft conviction.



                                            16
          II. Jury Instruction on Personal Infliction of Great Bodily Injury
       Defendant argues the trial court prejudicially erred by instructing the jury on
“ ‘group beating,’ ” which supposedly allowed the jury to find he personally inflicted
GBI based on the stab wounds inflicted by Fox. Defendant asserts there was no evidence
he inflicted any of the stab wounds, and therefore he views his GBI enhancement as
being improperly based on vicarious liability for stab wounds inflicted by Fox. (People
v. Cole (1982) 31 Cal.3d 568, 571 [GBI enhancement cannot be based on aiding and
abetting liability].) Defendant’s claim of instructional error ignores the fact, as discussed
ante, that loss of consciousness was also GBI.
       We reject defendant’s claim of instructional error, because the evidence showed
that Fox “beat down” on the victim’s face with her fists around the same time the
defendant beat the victim with the gun and the victim lost consciousness. Furthermore,
the instruction expressly stated it applied only if the jury could not decide which
defendant caused which injury.
       The trial court instructed the jury, with no objection by the defense: “If you
conclude that more than one person assaulted [the victim] and you cannot decide which
person caused which injury [italics added], you may conclude that the defendant
personally inflicted great bodily injury on [the victim], if the People have proved that: [¶]
1. Two or more people, acting at the same time, assaulted [the victim] and inflicted great
bodily injury on him on her; [¶] 2. The defendant personally used physical force on [the
victim], during the group assault; [¶] AND [¶] 3. The physical force that the defendant
used on [the victim] was sufficient in combination with the force used by the others to
cause [the victim] to suffer great bodily injury. [¶] The defendant must have applied
substantial force to [the victim]. If that force could not have caused or contributed to the
great bodily injury, then it was not substantial. [¶] The People have the burden of
proving each allegation beyond a reasonable doubt. If the People have not met this
burden, you must find that the allegation has not been proved.” (Italics added.)

                                             17
       Defendant argues this instruction allowed the jury to find the GBI enhancement
true as to both defendants based on the acts of the other, by finding that each defendant
applied force to the victim, knowing the other defendant was also applying force, and the
cumulative effect of their actions produced GBI. We disagree. By its own terms the
“group beating” instruction applied only if the jury could not determine which defendant
inflicted which injury. And the court instructed the jury that some instructions may not
apply, depending on the jurors’ findings about the facts of the case. We presume the
jurors followed these instructions. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
       Here, again defendant argues that the stab wounds were the only wounds
constituting GBI. We have rejected that theory. Loss of consciousness was also GBI.
The evidence showed that Fox personally inflicted the stab wounds. But the evidence
also shows that defendant personally inflicted the loss of consciousness in the bedroom,
although Fox could have contributed to that injury when she punched the victim in the
face. Beyond that, there was additional injury that could have been difficult to attribute
to only one defendant, in that the victim lost consciousness again when he collapsed
outside the gym across the street, after being beaten on the head with the gun in the
bedroom, then stabbed with the knife, and then hit on the head again from behind as he
fled from the garage.
       The instruction was proper. We reject defendant’s claim of instructional error.11




11 On appeal, defendant does not contend the prosecutor committed misconduct during
closing argument, nor could he do so, having failed to object in the trial court. (People v.
Tully (2012) 54 Cal.4th 952, 1045.) Thus, we need not discuss the prosecutor’s
comments about the instruction during closing arguments.

                                             18
                        III. Sentencing Factors in Aggravation
       Defendant argues the trial court relied on improper factors in aggravation when it
imposed the upper term on both the burglary and the firearm enhancement. We conclude
the contention lacks merit.
                                     A. Background
       At the sentencing hearing, defense counsel argued it would be an improper dual
use of facts to rely on violence and bodily harm to impose the upper term, because those
factors were subsumed by the GBI and personal use of a firearm enhancements. The
prosecutor responded he was seeking the upper term based on the surrounding
circumstances, not merely on the facts of GBI and gun use.
       The trial court began by noting the description of the facts underlying defendant’s
prior attempted voluntary manslaughter conviction in denying a grant of probation.
According to the probation report, the facts underlying this prior conviction were that
park rangers were chasing defendant to apprehend him for smoking marijuana.
Defendant hid in a creek bed and fired three shots from a pistol at one of the peace
officers, hitting him in the chest. The officer was wearing a bullet proof vest. The trial
court stated, “[T]he reason I refer to that is your history involves weapons, an assault on a
peace officer with a weapon. And had this peace officer, the park ranger not been
wearing a bullet proof vest, you might have been convicted for quite a different offense.
Not attempted voluntary manslaughter and possibly as serious as murder, but you were
not. So you have demonstrated a propensity for violence. [¶] The facts surrounding the
offenses before the Court demonstrate that as well.” Based on this, the trial court denied
probation.




                                             19
       The trial court then selected count one, burglary in the first degree, as the base
                                                                           [   ]
term and selected the upper term “because of the nature of the offense, 12 the seriousness
of the facts surrounding the offense, the cruelty, the violence involved. And as I have
noted, your propensity to be violent and have used violence in the past against a peace
officer in particular. [¶] You are a danger to society. [¶] You have demonstrated that
before by firing a weapon at a peace officer. And by engaging in the conduct that you
engaged in now, you are lucky you are not here again on attempted murder and/or if this
man would have died, on a murder charge. [¶] So those are the reasons the Court selects
the upper term, six years.” (Italics added.)
       The court doubled the six-year upper term for the “prior strike conviction.”
       In imposing the upper term for the firearm enhancement (§ 12022.5), the trial
court said, “[T]he Court again selects the upper term, recognizing that it has the
discretion to impose a low term of three or middle term of four. [¶] The Court selects the
upper term of ten again, because of the violent conduct involved, the callousness, the
viciousness of the offense. [¶] The Court records and transcript will reflect that the
victim did testify that he was struck to the head several times by what later turned out to
be a solid hard object, i.e., the firearm.”
       In imposing the three-year GBI enhancement, the court said, “In light of the . . .
jury finding that you . . . inflicted . . . [GBI] on the victim, no doubt, pursuant to the




12 Defendant argues the “ ‘nature of the offense’ ” cannot be an adequate ground for the
upper term, because then the offense would have a built-in aggravating factor in every
case. (People v. Smith (1984) 155 Cal.App.3d 539, 546.) However, in context, it appears
the court was referring to “[f]actors relating to the crime” (Cal. Rules of Court, rule
4.421(a)), which the court then went on to list.

                                               20
          [   ]
stabbing, 13 and that is the finding pursuant to 12022.7, the Court further enhances the
base term by three years.”
        The trial court further found that there were no factors in mitigation.
                                         B. Analysis
        Defendant argues the trial court improperly relied on his prior conviction to
impose the upper term for burglary, double the base term, and impose the section 667,
subdivision (a), five-year enhancement. Defendant argues that, while imposition of the
two recidivist enhancements was not a prohibited dual use of facts, either of these two
combined with imposition of the upper term was a prohibited dual use.
        In imposing an upper term, the trial court may consider circumstances in
aggravation (People v. Sandoval (2007) 41 Cal.4th 825, 848; California Rules of Court,
rules 4.420-4.42114), including: “(a) Factors relating to the crime [¶] Factors relating
to the crime, whether or not charged or chargeable as enhancements include that: [¶] (1)
The crime involved great violence, great bodily harm, threat of great bodily harm, or
other acts disclosing a high degree of cruelty, viciousness, or callousness; [¶] (2) The
defendant was armed with or used a weapon at the time of the commission of the crime
. . . . [¶] . . . [¶] (8) The manner in which the crime was carried out indicates planning,
sophistication, or professionalism; [¶] . . . [¶] (b) Factors relating to the defendant [¶]
Factors relating to the defendant include that: [¶] (1) The defendant has engaged in
violent conduct that indicates a serious danger to society; [¶] (2) The defendant’s prior
convictions as an adult or sustained petitions in juvenile delinquency proceedings are
numerous or of increasing seriousness; [¶] (3) The defendant has served a prior prison
term . . . .” (Rule 4.421.)


13We affirm the GBI finding based on loss of consciousness rather than the stab
wounds.
14   Undesignated rule references are to the California Rules of Court.

                                              21
       A single aggravating factor will suffice to justify a trial court’s discretionary
selection of an upper term. (People v. Black (2007) 41 Cal.4th 799, 812 (Black).)
However, the court cannot impose an upper term by using the fact of any enhancement
upon which sentence is imposed under any provision of law, unless the court can and
does strike the punishment for the enhancement. (§ 1170, subd. (b); rule 4.420(c).)
       As for count one, burglary in the first degree, the trial court’s findings reflected by
its comments during the sentencing hearing related to two factors in aggravation: (1) the
rule 4.421(b)(1) factor related to the defendant -- “[t]he defendant has engaged in violent
conduct that indicates a serious danger to society”; and (2) the rule 4.421(a)(1) factor
related to the crime -- “acts disclosing a high degree of cruelty, viciousness, or
callousness.” As for the enhancement, the court’s comments can be read to relate to the
rule 4.421(a)(1) factor related to the crime -- “acts disclosing a high degree of cruelty,
viciousness, or callousness.”
       As for the upper term sentence on count one, the trial court’s findings regarding
the underlying facts of the defendant’s prior conviction was sufficient to aggravate the
prison sentence, without reference to the viciousness and callousness of the current
offense. (Black, supra, 41 Cal.4th at p. 812 [one factor in aggravation is enough].)
Defendant contends the trial court violated the dual use prohibition by aggravating his
sentence with the fact that he had a prior conviction. We disagree. The court did not use
the fact of the prior conviction to justify the upper term sentence; rather, the trial court
relied on the degree of violence defendant exhibited in that earlier case. As described in
the probation report, defendant ambushed the park ranger and shot him in the chest. But
for the fact the ranger was wearing a bulletproof vest, he may have been killed. When
interviewed for the probation report in that case, defendant said he and his accomplice
did not want to be taken into custody. It was appropriate to consider these facts since
they are beyond the facts necessary to establish the conviction offense.



                                              22
       People v. Castorena (1996) 51 Cal.App.4th 558 (Castorena) is illustrative. There,
the defendant was convicted of gross vehicular manslaughter while intoxicated. (Id. at
p. 559.) After consuming multiple glasses of beer and brandy and achieving a blood
alcohol level of .20, the defendant drove at speeds up to 100 miles an hour, including on
the wrong side of the road, ran several red lights and narrowly missed injuring several
people other than the victim. This all occurred after defendant was told he was too
intoxicated to drive, at one point had his keys taken away from him and was offered other
means of transportation. (Id. at pp. 561-562.) The trial court observed that defendant had
acted not with gross negligence, but with implied malice and used the aforementioned
facts to impose the upper term sentence. (Ibid.) On appeal, the trial court’s sentencing
decision was affirmed. As the Castorena court recognized, “where the facts surrounding
the charged offense exceed the minimum necessary to establish the elements of the crime,
the trial court can use such evidence to aggravate the sentence. [Citation.]” (Id. at
p. 562.)
       So too is the case when a trial court looks to the circumstances of a prior
conviction offense in imposing a sentence on an offense a defendant subsequently
commits. Indeed, similar to the trial court’s observation in Castorena that defendant’s
conduct there showed implied malice, the trial court here noted that the facts underlying
the prior conviction demonstrate attempted murder, not attempted voluntary
manslaughter. Furthermore, the trial court here found that defendant’s prior conduct
demonstrates a propensity for a high degree of violence. Its finding relates to the
aggravating circumstance in rule 4.421(b)(1), “[t]he defendant has engaged in violent
conduct that indicates a serious danger to society.”
       As for the firearm enhancement, the court again noted that the offense was violent,
callous, and vicious, remarking that defendant struck the victim on the back of the head
several times with the firearm. Defendant appears to extend his argument that this



                                             23
conduct was subsumed in the firearm and GBI enhancements to the sentence on the
firearm enhancement. This argument also lacks merit.
       Rule 4.428 provides in pertinent part: “If an enhancement is punishable by one of
three terms, the court must, in its discretion, impose the term that best serves the interest
of justice and state the reasons for its sentence choice on the record at the time of
sentencing.” Here, defendant acted in a gratuitously violent, cruel, and callous manner
beyond that inherent in a burglary, firearm, or GBI enhancement. After ordering the
victim at gunpoint to lay face down on the bed, defendant got on top of the victim,
pressed the gun to the victim’s head, and threatened to “blow [the victim’s] fucking head
off” and repeated that threat multiple times. Apart from striking the victim with the
firearm, this callous and vicious conduct was sufficient to support the upper term on the
firearm enhancement.
       On this point, People v. Douglas (1995) 36 Cal.App.4th 1681 is illustrative.
There, the defendant was convicted of multiple counts of robbery and attempted robbery
and a firearm enhancement was found true. (Id. at p. 1684.) The trial court’s imposition
of the upper term on the firearm enhancement was challenged on appeal. The Douglas
court wrote, “[F]actors existed beyond that which would result from mere use of the gun
itself. The evidence shows circumstances beyond that which was necessary for finding
use of the gun. [The defendant] did not merely possess or display a handgun. Instead,
after he entered the bar, he pointed it at the victim’s face and then, after ordering her to
give him the money, he used the gun to threaten her into complying with his request by
putting the gun to the side of her head at very close range. The manner in which he used
the gun clearly involved the threat of great bodily harm, which, contrary to [the
defendant’s] argument, is a factor legally sufficient to justify imposition of the upper
term.” (Id. at pp. 1691-1692.) The same analysis applies here. (See People v. Collins
(1981) 123 Cal.App.3d 535, 538-539 [upheld aggravated kidnapping term based on
viciousness and callousness in addition to gun use enhancement, where defendant held

                                              24
cocked gun to victim’s head], criticized on other grounds in People v. Bravo (1990) 219
Cal.App.3d 729, 734.)
       Moreover, the trial court’s findings as to the level of viciousness in this case is
similar to the trial court’s finding in Castorena that the defendant acted not with gross
negligence, but rather with implied malice. (Castorena, supra, 51 Cal.App.4th at
pp. 561-562.) The trial court observed that defendant could have been charged with
attempted murder in this case or murder had the victim died from his injuries. Thus,
defendant’s actions as a perpetrator and also as an aider and abettor of the stabbing
(which was apparently facilitated by rendering the victim unconscious) clearly exceeded
the minimum necessary to establish the firearm enhancement and the GBI enhancement
regarding the the loss of consciousness he caused.
       Defendant cites People v. Alvarado (1982) 133 Cal.App.3d 1003, which rejected
an aggravated sentence based on “great violence/threat of great bodily harm” where the
defendant also received a firearm enhancement. (Id. at p. 1028.) There, however, the
Alvarado court concluded that the presence of the firearm was the only justification for
finding a threat of great bodily harm. (Ibid.) Alvarado does not help defendant.
       Additionally, other aggravating factors appear in the probation report, which could
have been cited by the trial court had defendant developed his objections at sentencing,
and therefore any dual use error was harmless because it is not reasonably probable that a
more favorable sentence would have been imposed in the absence of the alleged dual use
error. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) The probation report states
that “[t]he manner in which the crime was carried out indicates planning, sophistication,
or professionalism” (rule 4.421(a)(8)), and the trial evidence showed a level of
sophistication and planning. This aggravating factor was available to aggravate the
sentence on either count one or the firearm enhancement. The probation report also
states defendant was placed on informal supervision as a juvenile on a charge of bringing
a .44-magnum revolver to his junior high school. This is another case involving a firearm

                                             25
and demonstrates defendant’s proclivity to arm himself with such weapons. Also,
defendant has a prior misdemeanor conviction for burglary in March 1996, in which he
stole beer from a liquor store and his accomplices struck the store clerk with closed fists.
This is another case showing defendant’s propensity for acting in concert with others to
commit theft.15
       We reject defendant’s claim that the trial court made dual use of aggravating
factors in his sentence.
                  IV. Claim of Unconstitutional Disparate Sentencing
       Defendant claims a “disparate” sentence was imposed against him (31 years
4 months) in comparison to codefendant Fox’s sentence (five years), in violation of his
federal and state constitutional rights to a jury trial, due process, and equal protection.
(U.S. Const., 5th, 6th, 14th Amendments; Cal. Const., art. I, §§ 7, 16, 24.) Notably,
defendant does not claim cruel and unusual punishment, though he cites cases on that
subject. He does not provide any analysis or authority on due process and equal
protection. Defendant’s constitutional claim fails.
       Assuming for the sake of argument that intracase proportionality review is
appropriate, such review examines whether a defendant’s sentence is “ ‘ “proportionate to
his individual culpability, irrespective of the punishment imposed on others.” ’ ” (People
v. Jackson (1996) 13 Cal.4th 1164, 1246.) “The disparity in sentencing imposed on [the]
defendant and [a codefendant] does not establish that defendant’s sentence is grossly
disproportionate to the offense he committed. Evidence of the disposition of a
codefendant’s case, as opposed to evidence of the codefendant’s complicity and
involvement in the offense, is not relevant to the decision at the penalty phase [death
sentence], which is based on the character and record of the individual defendant and the



15 The trial court considered the fact that defendant had served a prior prison term as a
reason for imposing a consecutive sentence on count six, felon in possession of a firearm.

                                              26
circumstances of the offense.” (People v. Mincey (1992) 2 Cal.4th 408, 476.) “A
sentencing court considers not only the circumstances of the crime, but circumstances
individual to each defendant. . . . So long as [the defendant’s] sentence was justified by
[the defendant’s] crimes, individual culpability, and record, the sentence received by an
accomplice is not relevant.” (People v. Foster (1988) 201 Cal.App.3d 20, 27, citation
omitted.)
       Here, both defendant and Fox were complicit and deeply involved in the assault on
the victim. While Fox may have set up the crime, defendant provided the muscle and the
firearm. In sentencing Fox, the trial court contrasted defendant’s culpability. The court
said, it sentenced defendant to “31 years largely because of his criminal history and his
violent nature.” Defendant presented a very different situation than Fox.16 He had the
additional present conviction (felon in possession of a gun) and prior conviction for
attempted voluntary manslaughter of a park ranger, which also involved his use of a
firearm. The prior conviction not only doubled defendant’s base terms, but also
accounted for a consecutive five-year serious felony enhancement. Additionally,
defendant’s personal use of a firearm added ten years and reflects legislative intent to
punish more harshly criminals who personally use guns. (See People v. Gonzales (2001)
87 Cal.App.4th 1, 18 [discussing § 12022.53].) Contrary to defendant’s assertion that
there was no evidence the victim suffered head wounds from being hit with the gun, the
victim suffered loss of consciousness from defendant hitting the victim on the head with
the gun. Accordingly, the prison sentence imposed by the trial court here can be
connected to his individual conduct and prior record.



16 Regarding Fox, the trial court went on to observe, in contrast to defendant, “I don’t
believe per se that you present a danger to the community. I believe what happened here
was what the law refers to as an aberrant or isolated instance. [¶] You’ve never
demonstrated that you’re a violent person. In fact, the letters that have been submitted
here on your behalf state to the contrary, that you’re a loving, caring mother, individual.”

                                             27
       Defendant claims that, even factoring in his prior conviction, fairness demands he
receive no more than the low term for burglary, doubled, plus the low or middle term for
the firearm enhancement. However, defendant fails to show a constitutional violation in
sentencing. We reject his reliance on People v. Dillon (1983) 34 Cal.3d 441, which
found cruel and unusual punishment where a 17 year old with no criminal record received
a life sentence for murder while none of his cohorts were sentenced to state prison. (Id.
at p. 488.) Here, defendant was a 35-year-old adult who committed a violent home
invasion and assault and had a prior conviction for attempted voluntary manslaughter of a
peace officer, also involving a firearm, in addition to a firearm offense as a juvenile.
       Defendant cites United States v. Bischel (9th Cir. 1995) 61 F.3d 1429, which said
imposition of disparate sentences in itself is not generally an abuse of discretion, but an
explanation is required when there is substantial disparity and evidence that the judge is
punishing one defendant for exercising his right to stand trial. (Id. at p. 1437.) The court
in Bischel cited United States v. Capriola (9th Cir. 1976) 537 F.2d 319, in which the
defendants who chose to stand trial received a harsher penalty than co-conspirators who
pleaded guilty. The Capriola court remanded to permit the trial court to state a reason or
ameliorate the sentences. (Capriola, at pp. 320-321.) We note that the court in United
States v. Hall (9th Cir. 1985) 778 F.2d 1427, 1428, said Capriola is limited to its facts.
And the Bischel court saw no reason to remand where the record showed reasons for the
harsher sentence, including prior conviction, criminal history, leadership role in the
criminal conduct, and absence of evidence that the disparity was due to the defendant
exercising his trial rights. (Bischel, at p. 1437.)
       Here, both defendants went to trial, and therefore the disparity in sentences cannot
be attributed to defendant having exercised his right to a jury trial.
       We conclude defendant fails to show grounds for reversal.




                                              28
                            VII. Section 654 Sentencing Error
       In our review of the sentencing hearing, we discovered an error concerning the
sentences for counts three and four, assault with a firearm (§ 245, subd. (a)(2)) and
assault with a deadly weapon (§ 245, subd. (a)(1)), and the enhancements associated with
those counts. The court stated: “[T]he Court will stay imposition of any further
imposition of sentence pursuant to [] section 654, as the Court finds that the assault on
the victim . . . were part of the continuous transaction associated with the burglary for
which you were convicted in Count 1. [¶] In other words, I am convinced that the reason
that you came into the apartment was to assist or come to the aid of [] Fox and to assault
the victim . . . and that the use of the firearm, the use of the knife, and the assault, were
all connected to that continuous course of criminality and were not independent criminal
objectives.”
       We do not disagree with the trial court’s findings that counts three and four and
the associated enhancements were subject to section 654. But as noted, the trial court
never imposed sentences on those counts. The failure to do so was error.
       “[W]hen a court determines that a conviction falls within the meaning of section
654, it is necessary to impose sentence but to stay the execution of the duplicative
sentence . . . .” (People v. Duff (2010) 50 Cal.4th 787, 796 (Duff); see People v. Alford
(2010) 180 Cal.App.4th 1463, 1469, 1472 (Alford); People v. Niles (1964) 227
Cal.App.2d 749, 755-756.) Thus, even though section 654 requires that the sentences
imposed on counts three and four be stayed, the trial court was nevertheless required to
impose judgment on each count, which involves selecting a term, and then staying
execution on these counts, the stay to become permanent upon defendant’s service of the
portion of the sentence not stayed. (People v. Salazar (1987) 194 Cal.App.3d 634, 640;
see Duff, at p. 796.) “This procedure ensures that the defendant will not receive ‘a
windfall of freedom from penal sanction’ if the conviction on which the sentence has not
been stayed is overturned. [Citation.]” (Salazar, at p. 640.) The trial court thus

                                              29
“committed unauthorized sentencing error by failing first to pronounce sentence on [these
counts] and then stay execution of [those] sentence[s].” (People v. Crabtree (2009) 169
Cal.App.4th 1293, 1327; see Alford, at p. 1472.) Because this aspect of the sentence was
unauthorized, we reach this issue notwithstanding the fact that it was not raised by either
party.
         As in Alford, we see no reason to remand for resentencing. Rather, we instead
exercise our authority to modify the judgment in a way that is consistent with the trial
court’s sentence on the count that was not stayed. (§ 1260; Alford, supra, 180
Cal.App.4th at p. 1473.) As noted, the court imposed an upper term on count one,
burglary in the first degree, the upper term of 10 years on the firearm enhancement, the
term of three years for the GBI enhancement, and it enhanced the sentence for the prior
strike and serious felony allegations. It is clear that the trial court would have imposed an
upper term on count three and the firearm enhancement in the absence of count one or it
would have imposed the upper term on count four in the absence of count one. And it is
equally clear the trial court would have imposed the three-year term for the great bodily
injury enhancement and the five-year term for the prior serious felony conviction on
counts three and four in the absence of count one.
         Accordingly, on count three, assault with a firearm (§ 245, subd. (a)(2)), we
impose the upper term of four years doubled to eight years for the strike (§§ 667,
subds. (b)-(i), 1170.12), plus 10 years for the firearm enhancement (§ 12022.5, subd. (a)),
plus three years for the great bodily injury enhancement (§ 12022.7, subd. (a)), plus five
years for the prior serious felony conviction (§ 667, subd. (a)). As to count four, assault
with a deadly weapon (§ 245, subd. (a)(2)), we impose the upper term of four years, plus
three years for the GBI enhancement (§ 12022.7, subd. (a)), plus five years for the prior
serious felony conviction (§ 667, subd. (a)). Execution of the sentences on counts three
and four and their associated enhancements shall be stayed pursuant to section 654, the



                                              30
stay to become permanent upon defendant’s service of the sentences on count one and the
associated enhancements. (See Duff, supra, 50 Cal.4th at p. 796.)
                                      DISPOSITION
       The judgment is modified to: (1) impose a sentence of eight years on count three
(upper term of four years doubled for the strike pursuant to §§ 667, subds. (b)-(i),
1170.12), plus the upper term of 10 years for the firearm enhancement (§ 12022.5,
subd. (a)), plus three years for the great bodily injury enhancement (§ 12022.7, subd. (a)),
plus five years for the prior serious felony conviction (§ 667, subd. (a)); (2) impose a
sentence of eight years, on count four (upper term of four years doubled for the strike
pursuant to §§ 667, subds. (b)-(i), 1170.12), plus three years for the great bodily injury
enhancement (§ 12022.7, subd. (a)), plus five years for the prior serious felony conviction
(§ 667, subd. (a)); (3) execution of the sentences on counts three and four and their
associated enhancements is stayed pursuant to section 654. The trial court is directed to
prepare an amended abstract of judgment reflecting these modifications and forward a
copy to the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.



                                                  MURRAY, Acting P. J.


We concur:




DUARTE, J.




HOCH, J.


                                             31
