Filed 6/21/13 P. v. Johnson CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A131027
v.
DARRYL RONALDO JOHNSON II,                                               (Solano County
                                                                          Super. Ct. No. FCR261253)
         Defendant and Appellant.


         Defendant Darryl Ronaldo Johnson II appeals from a judgment after a jury
convicted him of attempted second degree robbery (three counts), together with true
findings on firearm use allegations (Pen. Code,1 §§ 211, 664, 12022.5, subd. (a)(1),
12022.53, subd. (b) (§ 12022.53(b))), and possession of a firearm by a felon (§ 12021,
subd. (a)(1)). After a bench trial, the court found defendant‘s juvenile adjudication for
robbery qualified as a prior strike within the meaning of the ―Three Strikes‖ law.
(§§ 211, 667, subds. (b)-(d), 1170.12, subds. (a)-(d).) Defendant was sentenced to an
aggregate term of 18 years in state prison on the current convictions, to run concurrently
to a four-year term on a prior conviction for transporting controlled substances after
revocation of probation. On appeal defendant challenges his current convictions and
sentences on various grounds, as well as presentence conduct credit awarded on his prior
drug conviction. We agree with defendant that he is entitled to a recalculation of his
presentence conduct credit on his prior drug conviction. In all other respects, we affirm.


1
         All further unspecified statutory references are to the Penal Code.


                                                             1
                 FACTUAL AND PROCEDURAL BACKGROUND
       The offenses and sentence enhancement allegations against defendant arose from
an incident on November 28, 2008. At a jury trial held in October 2010, the following
testimony was elicited.
       A.    The Prosecution’s Case
       On the morning of November 28, 2008, Eduardo Gonzalez was working in his
market in Dixon. Also in the market were Evelia Ramirez and Edward Hernandez.
Shortly after 8:00 a.m., a man entered the market and first walked toward Hernandez.
The man‘s face was covered with a white material or tee shirt, he wore gloves, and he
held a gun. The gunman pointed the gun at Hernandez‘s torso and said in slang and
accented Spanish, ―Give me the money.‖ Hernandez replied in English that he had no
money.2 The gunman then walked toward Ramirez, and pointed the gun at her midriff
and touched her stomach. The gunman said in English, ―Give me money. Give me
money.‖3 Before Ramirez could respond, Gonzalez observed the gunman point the gun
at Ramirez's stomach. Gonzales approached the gunman and said in English, ―Could I
help you? The gunman pointed the gun at Gonzalez‘s stomach and said in English, ―The
money.‖ Gonzalez and the gunman walked to the front of the store. At some point,
Gonzalez turned and grabbed the gun and the men wrestled for the gun. The gunman let
go of the gun and ran out of the store. The gunman‘s right hand glove fell off during the
struggle.4



2
        Hernandez believed the gunman was an English-speaking person trying to speak
Spanish.
3
        Although Ramirez testified using a Spanish interpreter, when asked what the
gunman, said, the witness replied in English, ―Give me money.‖ Ramirez understood
―very little‖ English, but she was able to understand what the gunman said in English.
During cross-examination, Ramirez denied telling a police officer that she could not
understand what the gunman had said to her. The defense called Police Officer Alberto
Cruz, who testified that Ramirez said she could not understand the gunman‘s words.
4
        The police recovered the gun, later found to be unloaded, and the glove from the
store, and both items were admitted into evidence as People‘s Exhibits 3 and 4.


                                            2
       Gonzalez told Hernandez to get into his truck and follow the gunman. Hernandez
complied, and followed the gunman who was on foot. Hernandez momentarily lost sight
of the gunman and then saw a Jaguar car‘s lights come on. Hernandez followed the
Jaguar as it sped through empty streets, not stopping for signs or stop lights at three
intersections. Hernandez followed the Jaguar onto Interstate 80 eastbound. After
Hernandez lost sight of the Jaguar, he stopped his pursuit and returned to the market.
       Shortly after Hernandez ceased his pursuit of the Jaguar, 12-year veteran
California Highway Patrol Officer Mark Garside was on routine patrol when he saw a
Jaguar going at least 100 miles per hour in the freeway fast lane. Garside paced the
Jaguar from behind for approximately one mile and then attempted to pass the Jaguar. As
he began to pass the Jaguar, Garside observed the car ―braking suddenly,‖ and without
signaling, the car moved rapidly across three traffic lanes with no traffic. The Jaguar‘s
braking and lane-changing maneuver was sudden and potentially dangerous, but it was
―done very smoothly.‖ Garside activated his car lights and the Jaguar pulled over onto
the shoulder of the road ―in a normal fashion.‖ Garside observed on the Jaguar‘s
passenger front seat a white tee shirt and a glove. At trial, Garside identified defendant as
the driver of the Jaguar.
       Garside informed defendant he was stopped for speeding and asked him a couple
of questions regarding the road‘s speed limit, how fast he was going, and the reason for
his speeding. Defendant said the speed limit was ―65‖ and he was going ―90 to 100.‖ He
was on his way to Sacramento to see his child, whom he did not see very often. The
child‘s mother said she wanted to go shopping, and if he wanted to see his child he
needed to get there right now. The officer then asked defendant for identification,
registration, and proof of insurance. Defendant complied, retrieving the car‘s registration
from the glove box. Defendant then got out of the car and retrieved the other requested
documents from the car‘s trunk. Garside testified that at that time of the morning, he
normally looked for objective signs that a driver had been drinking or using drugs.




                                              3
However, nothing gave the officer ―even the slightest belief‖ that defendant had
consumed any alcohol or controlled substances.5
       While defendant sat in the Jaguar, Garside returned to his patrol car to issue a
citation. Garside heard a ―Be on the Lookout‖ radio announcement, which described the
car he had just stopped. After communicating with police dispatch, Garside handcuffed
defendant, did a pat search for weapons, and placed defendant in the back of the patrol
car. Dixon Police Officer Ronald Willingmyre arrived at the scene and searched the
Jaguar. Willingmyre secured the glove and white tee shirt, which were admitted into
evidence as People‘s Exhibits 8 and 9.6
       Shortly after defendant‘s detention, Gonzalez and Hernandez were brought to the
scene of the traffic stop. Gonzalez was not able to identify defendant as the gunman
because the gunman had covered his face. Hernandez said defendant was dressed in the
same clothes as the gunman but the witness was unable to make a facial identification of
defendant as the gunman. Hernandez identified the Jaguar as the same car he had
pursued after the attempted robberies.
       B.     Defense Case
       Defendant testified on his own behalf. In November 2008, he was living in his
father‘s home in Dixon, working as a cart pusher at a store, and he leased a 2003 Jaguar.


5
        On cross-examination, Garside testified he did not test defendant‘s pulse rate, use
a flashlight to observe how fast defendant‘s eyes reacted to light or see if defendant‘s
eyes were dilated. In determining whether a person was under the influence of a
controlled substance, the officer did ―not very often‖ use a flashlight to see how fast a
person‘s eyes would react to light.
6
        Willingmyre also searched the car‘s trunk, finding that it was filled with a large
amount of luggage. After removing the luggage, Willingmyre found an unloaded
shotgun wrapped in a towel in the back of the trunk. Defendant denied ownership of the
shotgun found in the car‘s trunk and disavowed any knowledge of that gun. Defendant
recalled that on the morning of November 27 (the day before the attempted robberies),
his friend put luggage in the Jaguar‘s trunk. Defendant did not recall seeing his friend
put a towel with something wrapped inside of it in the trunk. Although the court directed
an answer, defendant refused to disclose his friend‘s name. The jury found defendant not
guilty of possessing the shotgun found in his car‘s trunk.


                                             4
On November 27, defendant drove his car to a party in Dixon. He did not know the
person who was hosting the party. He arrived at the party between one and two o‘clock
in the morning on November 28. He drank, danced, and socialized with about 12 to 15
people; he knew three of the partygoers. Defendant recalled having seven shots of
Cognac because he was playing a drinking game. To his knowledge, he did not use any
drugs that evening. Although he had used rock cocaine in the past, he was not using rock
cocaine that evening. He never fell asleep at the party and he did not know how long he
stayed at the party. His last conscious memory during the party was dancing with a girl
whom he had never met before and he did not recall her name. Defendant‘s next memory
was waking up in jail in custody.
       When asked if he remembered anything that happened the morning after the party,
defendant replied, ―No. I was intoxicated, rendered me unconscious.‖ Defendant had
absolutely no memory of going to Gonzalez‘s market on the morning of November 28.
He recalled that a couple of weeks earlier he shoplifted a bag of chips from the market,
argued with some unknown person there and left. Defendant had no memory of driving
his car, being pulled over, or talking to the patrol officer on November 28. After
listening to the testimony in court, defendant did not recall anything that happened on
November 28 nor did he recognize any of the witnesses who testified in court. When
asked if his current memory loss was consistent with past occasions where he was really
drunk, defendant replied, ―When you‘re under the influence of any substance, you tend to
do things that a sober person would not.‖ Defendant also testified it was not his normal
practice to go into a store with his head covered and wearing gloves, or to speed or go
through stop signs or stop lights when driving.
       Defendant admitted he owned the gun that was recovered in the market. On
November 5, 2008, he purchased the gun for $100 from someone whom he initially
refused to name. After the court directed an answer, defendant said he bought the gun
from ―Blanco‖ but he did not know the man‘s real name or where he lived. He purchased
the gun because he had been assaulted several times the previous summer and in October
and on November 1, 2008. None of the assaults were reported to the police and he


                                             5
received no medical treatment. He carried the unloaded gun in his pocket for protection
―just to show.‖
       Defendant was also questioned about his prior criminal offenses. On direct
examination, he recalled that when he was 16 years of age he was in juvenile court for a
criminal offense. He ―shoplifted a bottle of alcohol to drink from a supermarket,‖ argued
with one of the managers, and then just left. When asked if there was some pushing
involved as he left the store, defendant replied, ―That was like four years ago. I really
can‘t remember.‖ When asked if he recalled that in juvenile court it was said he
committed a robbery because of ―the physical part on the way out of the store,‖ defendant
replied, ―I signed a plea bargain for a robbery, but it was a shoplifting.‖ Defendant also
admitted that as an adult he possessed cocaine. When asked if he ever transported or
moved it around, defendant replied, ―That again, I used cocaine, and I signed a plea
bargain just to get out of custody.‖ On cross-examination, defendant admitted that on
April 10, 2008, he had been convicted of violating ―Heath and Safety Code section
11352(a), transportation for sale of cocaine,‖ pursuant to a ―plea bargain,‖ and ―[t]o
dismiss my other counts.‖ He was not in the business of selling cocaine, but pleaded
guilty ―[t]o get out of custody,‖ and ―[t]o get on with [his] family.‖ When asked whether
―on August 19, 2004, in Solano County juvenile court in case number J34849 dash 001,
did you not admit a violation of Penal Code Section 211, robbery,‖ defendant replied,
―Yes, I signed a plea bargain.‖ On rebuttal, defense counsel asked if defendant knew
whether he had pleaded guilty or ―admitted a petition‖ in the juvenile court or even if he
knew what the difference was, and defendant replied, ―No.‖ Defendant recalled signing
some papers about the incident, and that the store manager had tried to stop him from
leaving with the alcohol, but no weapons were involved and to his knowledge, no one
was injured. The parties later stipulated defendant had ―suffered a prior felony
conviction for violating Health and Safety Code section 11352.‖




                                             6
                                      DISCUSSION
I.     Jury Instructions
       Defendant contends reversal is compelled based on certain instructions given to
the jury. We address each of defendant‘s claims of instructional error more fully below,
and ultimately conclude they lack merit.
       A.     CALCRIM Nos. 361 and 362
       Over defendant‘s objections, the trial court instructed the jury regarding its
consideration of defendant‘s testimony using language in CALCRIM Nos. 361 and 362.
Thus, the jury was advised that ―[i]f the defendant failed in his testimony to explain or
deny evidence against him, and if he could reasonably be expected to have done so based
on what he knew, you may consider his failure to explain or deny in evaluating that
evidence. Any such failure is not enough by itself to prove guilt. The People must still
prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to
explain or deny, it is up to you to decide the meaning and importance of that failure.‖
(CALCRIM No. 361.) The jury was also advised that ―[i]f the defendant made a false or
misleading statement before his trial relating to the charged crime, knowing the statement
was false or intending to mislead, that conduct may show he was aware of his guilt of the
crime and you may consider it in determining his guilt. [¶] If you conclude that the
defendant made the statement, it is up to you to decide its meaning and importance.
However, evidence that the defendant made such a statement cannot prove guilt by
itself.‖ (CALCRIM No. 362.)
       On appeal the parties present extensive arguments discussing whether the trial
court should have instructed the jury using the language in CALCRIM Nos. 361 and 362.
However, we need not address these arguments. Even assuming the trial court should not
have so instructed the jury, defendant has failed to demonstrate prejudicial error requiring
reversal under any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24
(Chapman); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
       CALCRIM Nos. 361 and 362 were permissive. CALCRIM No. 361 allowed, but
did not compel, the jury to find defendant knowingly failed to explain or deny evidence.


                                              7
Similarly, CALCRIM No. 362 allowed, but did not compel, the jury to find defendant
made a false or misleading pretrial statement. If the jury did not make the allowed
findings, then it was advised ―to disregard‖ the challenged instructions. 7 (People v.
Lamer (2003) 110 Cal.App.4th 1463, 1472 (Lamer); see People v. Yeoman (2003) 31
Cal.4th 93, 130 [court presumes jury is able to understand and follow instructions].)
Additionally, each challenged instruction admonished the jury that any evidence of
defendant‘s failure to deny or explain (CALCRIM No. 361) or his false or misleading
pretrial statement (CALCRIM No. 362) was not sufficient to convict, and the jury was to
decide both the meaning and importance of any such evidence.
       We reject defendant‘s arguments that the challenged instructions were prejudicial
based on the prosecutor‘s closing arguments. During closing, the prosecutor ―stressed
[defendant] lied to the jury,‖ but he did not expressly refer to CALCRIM No. 361 or
otherwise focus on defendant‘s failure to explain or deny any evidence. The prosecutor
asked the jury to consider defendant‘s explanation for speeding when considering his
testimony that he was not guilty because he was so drunk he blacked out and was
unconsciousness, noting that the evidence showed defendant gave a coherent explanation
for speeding for the purpose of misleading the officer.8 We presume the jurors treated


7
        Using language in CALCRIM No. 200, the trial court advised the jury, in pertinent
part, that ―[s]ome of these instructions may not apply, depending on your findings about
the facts of the case. Do not assume just because I give you a particular instruction that I
am suggesting anything about the facts. After you have decided what the facts are,
follow the instructions that do apply to the facts as you find them.‖ While the quoted
language in CALCRIM No. 200 ―does not render an otherwise improper instruction
proper, it may be considered in assessing the prejudicial effect of an improper
instruction.‖ (People v. Saddler (1979) 24 Cal.3d 671, 684 [discussing language in
CALJIC No. 17.31 that corresponds to language in CALCRIM No. 200].)
8
        The prosecutor specifically argued that when the jurors considered defendant‘s
explanation of his conduct — that he was so drunk he blacked out and was
unconsciousness – they should also consider that when he was stopped by the police he
gave an explanation as to why he was speeding, and he ―has it all worked out at this
point. He‘s conscious of ‗I have been caught here. I am understanding what the officer
is saying. I am not only responding to him in a totally coherent way, but in a way that I
have to come up on the spot with something to explain myself away, get out of this

                                             8
―the prosecutor‘s comments as words spoken by an advocate in an attempt to persuade,‖
and otherwise followed the court‘s instructions regarding its consideration of defendant‘s
pretrial statements made to Officer Garside. (People v. Sanchez (1995) 12 Cal.4th 1, 70.)
Thus, on this record, we conclude that any instructional error was harmless. (Lamer,
supra, 110 Cal.App.4th at p. 1473 [court held harmless error in using language in
CALJIC No. 2.629 that corresponds to CALCRIM No. 361, where, among other things,
prosecutor‘s closing statement made no reference to instruction or defendant‘s failure to
explain or deny, but ―provided a detailed description of all the ways in which the
defendant had explained and denied his activities by lying‖]; People v. Rankin (1992) 9
Cal.App.4th 430, 436 [court held harmless error in using language in CALJIC No. 2.0310
that corresponds to CALCRIM No. 362 where defendant‘s false pretrial statements did
not show any consciousness of guilt].)
       Relying on People v. Wiidanen (2011) 201 Cal.App.4th 526 (Wiidanen), decided
after his trial, defendant argues the trial court‘s instructions on consciousness of guilt


situation, perhaps get myself on the road before something more happens,‘ relating back
to what he really is trying to get away with.‖
9
       CALJIC No. 2.62 reads: ―In this case defendant testified to certain matters. [¶] If
you find that [a][the] defendant failed to explain or deny any evidence against [him][her]
introduced by the prosecution which [he][she] can reasonably be expected to deny or
explain because of facts within [his][her] knowledge, you may take that failure into
consideration as tending to indicate the truth of this evidence and indicating that among
the inferences that may reasonably be drawn therefrom those unfavorable to the
defendant are the more probable. [¶] The failure of a defendant to deny or explain
evidence against [him][her] does not, by itself, warrant an inference of guilt, nor does it
relieve the prosecution of its burden of proving every essential element of the crime and
the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the
knowledge that [he] [she] would need to deny or to explain evidence against [him,][her,]
it would be unreasonable to draw an inference unfavorable to [him][her] because of
[his][her] failure to deny or explain this evidence.‖
10
       CALJIC No. 2.03 reads: ―If you find that before this trial [a] [the] defendant made
a willfully false or deliberately misleading statement concerning the crime[s] for which
[he][she] is now being tried, you may consider that statement as a circumstance tending
to prove a consciousness of guilt. However, that conduct is not sufficient by itself to
prove guilt, and its weight and significance, if any, are for you to decide.‖


                                              9
(CALCRIM No. 362) and voluntary intoxication (CALCRIM No. 342611) were
incompatible as those instructions advised the jury that it could infer defendant‘s
consciousness of guilt if they found he knowingly made a false or misleading statement
to Officer Garside, but it could not consider defendant‘s intoxication at the time he made
that statement. Defendant ―takes his argument one step further,‖ contending ―CALCRIM
Nos. 362 and 3426 together created an ‗irrational permissive inference‘ in violation of
due process.‖ (Wiidanen, supra, at p. 533.) However, even assuming defendant‘s failure
to object in the trial court did not forfeit this claim of instructional error, we conclude any
error was harmless under any standard of review. (Chapman, supra, 386 U.S. at p. 24;
Watson, supra, 46 Cal.2d at p. 836.)
       In Wiidanen, supra, 201 Cal.App.4th 526, the reviewing court found the trial court
erred in giving the consciousness of guilt instruction (CALCRIM No. 362) with an
unmodified version of the voluntary intoxication instruction (CALCRIM No. 3426),
because if the jury believed the defendant made false or misleading statements, it should
be allowed to consider whether defendant was intoxicated at the time he made the
statements and whether his intoxication prevented him from knowing those statements
were false or misleading. (Id. at p. 533.) ―If the jury so believed, those statements would
not have been probative of defendant‘s consciousness of guilt.‖ (Ibid.) However, the
Wiidanen court further held that in that case any instructional error was harmless
(Watson, supra, 46 Cal.2d at p. 836), and did not violate the defendant‘s due process
rights, because the instruction‘s permissive inference, i.e., defendant was aware of his
guilt when he made the false statements, was reasonable ―in light of the proven facts
before the jury.‖ (Id. at p. 534.) We find Wiidanen to be persuasive authority supporting
an affirmance in this case.

11
        CALCRIM No. 3426 advised the jury, in pertinent part: ―You may consider
evidence, if any, of voluntary intoxication only in a limited way. You may consider that
evidence only in deciding whether the defendant acted with the intent to do the act
required in Counts 1, 2 and/or 3, or the special findings regarding personal use in Counts
1, 2, 3, and/or 4. [¶] . . . [¶] ―You may not consider evidence of voluntary intoxication for
any other purpose.‖


                                              10
       Because CALCRIM No. 362 (consciousness of guilt), is a ―permissive inference‖
that ―leaves the trier of fact free to credit or reject the inference and does not shift the
burden of proof, it affects the application of the ‗beyond a reasonable doubt‘ standard
only if, under the facts of the case, there is no rational way the trier could make the
connection permitted by the inference. For only in that situation is there any risk that an
explanation of the permissible inference to a jury, or its use by a jury, has caused the
presumptively rational factfinder to make an erroneous factual determination.‖ (Ulster
County Court v. Allen (1979) 442 U.S. 140, 157.) Thus, ―[a] permissive inference
violates the Due Process Clause only if the suggested conclusion is not one that reason
and common sense justify in light of the proven facts before the jury.‖ (Francis v.
Franklin (1985) 471 U.S. 307, 314-315.)
       Here, we conclude that reversal is not required because CALCRIM No. 362‘s
― ‗suggested conclusion,‘ i.e. defendant was aware of his guilt‖ when he made his false or
misleading statements to Officer Garside, ―was reasonable ‗in light of the proven facts
before the jury.‘ ‖ (Wiidanen, supra, 201 Cal.App.4th at p. 534.) Defendant‘s defense
was, in essence, that he was so intoxicated he could not form the requisite intent to
commit the charged offenses of attempted robbery. The jury was instructed that if it
found defendant was intoxicated at the time of the attempted robberies, it should consider
that circumstance in determining whether he had the intent required for the commission
of those crimes. The fact that the jury convicted defendant of the attempted robberies
indicates it found defendant was not so intoxicated as to render him unable to form the
required intent to commit those offenses. Consequently, if the jury found defendant
made false or misleading statements to Officer Garside, its application of ―the permissive
inference, i.e., defendant was aware of his guilt when he made‖ his statements to Officer
Garside, was ―reasonable, and the court did not violate defendant‘s due process rights by
giving these instructions.‖ (Wiidanen, supra, at p. 534.) ―For the same reason the
instructions did not violate due process, the error in giving these instructions was
harmless under state law,‖ as ―it was not ‗reasonably probable that a result more



                                               11
favorable to [defendant] . . . would have been reached in the absence of the error.‖ (Ibid.,
Watson, supra, at p. 836.)

       B.     CALCRIM Nos. 223, 251, 3426
       Defendant contends the trial court committed prejudicial error by failing to include
in its voluntary intoxication instruction certain language in CALCRIM No. 3426, which
would have informed the jury that the People were required to prove beyond a reasonable
doubt that defendant acted with the specific intent for each offense in order to convict
him.12 Defendant also contends the prejudicial effect of the omitted language in the
voluntary intoxication instruction was compounded by the court‘s failure to give, sua
sponte, instructions concerning the definitions of direct and circumstantial evidence
(CALCRIM No. 22313), and the concept of concurrence of ―act and wrongful intent‖
(CALCRIM No. 25114), which would have been helpful to the jury.


12
        The written instructions incorporating language in CALCRIM No. 3426, read, in
pertinent part: ―You may consider evidence, if any, of voluntary intoxication only in a
limited way. You may consider that evidence only in deciding whether defendant acted
with the intent to do the act required in Counts 1, 2 and/or 3, or the special findings
regarding personal use in Counts 1, 2, 3, and/or 4. [¶] A person is voluntarily intoxicated
if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other
substance knowing that it could produce an intoxicating effect, or willingly assuming the
risk of that effect. [At this point, the trial court omitted from its oral instructions (as well
as its written instructions) the following recommended paragraph, which was to be
repeated for each offense: ―[¶] In connection with the charge of _______< insert first
charged offense requiring specific intent or mental state> the People have the burden of
proving beyond a reasonable doubt that the defendant acted [or failed to act] with
_______< insert specific intent or mental state required, e.g., ‘the intent to permanently
deprive the owner of his or her property’ or ‘knowledge that . . .’> . If the People have
not met this burden, you must find the defendant not guilty of __________< insert first
charged offense requiring specific intent or mental state>.‖] [¶] You may not consider
evidence of voluntary intoxication for any other purpose.‖
13
        CALCRIM No. 223 reads: ―Facts may be proved by direct or circumstantial
evidence or by a combination of both. Direct evidence can prove a fact by itself. For
example, if a witness testifies he saw it raining outside before he came into the
courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence
also may be called indirect evidence. Circumstantial evidence does not directly prove the
fact to be decided, but is evidence of another fact or group of facts from which you may

                                               12
       However, even assuming defendant‘s failure to object in the trial court did not
forfeit these claims of instructional errors, we conclude his contentions do not require
reversal as ―[t]he instructions as a whole . . . were not misleading.‖ (People v. Castillo
(1997) 16 Cal.4th 1009, 1016.) ― ‗The correctness of jury instructions is to be determined
from the entire charge of the court, not from a consideration of parts of an instruction or
from a particular instruction.‘ [Citation.] ‗ ―The absence of an essential element in one
instruction may be supplied by another or cured in light of the instructions as a
whole.‖ ‘ ‖ (Ibid.) Here, an examination of the entire instructions supports our
conclusion that the failure to address the element of intent and the People‘s burden of
proof as part of the voluntary intoxication instruction did not render that instruction
incorrect or inadequate. As part of the voluntary intoxication instruction, the jury was
told to consider such evidence in determining whether ―defendant acted with the intent to
do the act required in Counts 1, 2 and/or 3, or the special findings regarding personal use
in Counts 1, 2, 3, and/or 4.‖ In the instructions on the substantive elements of counts one
through three (attempt and substantive offense of robbery), and the special allegations of


logically and reasonably conclude the truth of the fact in question. For example, if a
witness testifies that he saw someone come inside wearing a raincoat covered with drops
of water, that testimony is circumstantial evidence because it may support a conclusion
that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable
types of evidence to prove or disprove the elements of a charge, including intent and
mental state and acts necessary to a conviction, and neither is necessarily more reliable
than the other. Neither is entitled to any greater weight than the other. You must decide
whether a fact in issue has been proved based on all the evidence.‖
14
        CALCRIM No. 251 reads: ―The crime[s] [(and/or) other allegation[s]] charged in
this case require proof of the union, or joint operation, of act and wrongful intent. [¶] For
you to find a person guilty of the crime[s] (in this case/or ___ <insert names[s] of alleged
offense[s] and count[s], e.g., burglary, as charged in Count 1> [or to find the
allegation[s] of _____ < insert names[s] of enhancement[s]> true]), that person must not
only intentionally commit the prohibited act [or intentionally fail to do the required act],
but must do so with a specific (intent/[and/or] mental state). The act and the specific
(intent/[and/or] mental state) required are explained in the instruction for that crime [or
allegation]. [¶] <Repeat next paragraph as needed> [¶] [The specific (intent/[and/or]
mental state) required for the crime of ______<insert names[s] of alleged offense[s] e.g.,
burglary> is ______<insert specific intent>.]


                                             13
personal use of a firearm, the jury was advised of the requisite mental states that the
People had to prove in order for the jury to find defendant guilty of the charged crimes or
make true findings of the special allegations.15 In addition, the court apprised the jury
that whenever the instructions told the jury that the People had to prove something, it
meant the People had to prove it beyond a reasonable doubt.
       Defendant‘s related argument, premised upon the trial court‘s failure to give, sua
sponte, CALCRIM Nos. 223 and 251, fares no better. Even assuming the trial court had
a sua sponte duty to give these instructions, we discern no prejudice. Any error in failing

15
       Using the language in CALCRIM No. 460, the court advised the jury regarding
the concept of attempt, in pertinent part: ―The defendant is charged in Counts 1, 2 and 3
with attempted Robbery. [¶] To prove that the defendant is guilty of this crime, the
People must prove that: [¶] 1. The defendant took a direct but ineffective step toward
committing Robbery; [¶] AND [¶] 2. The defendant intended to commit Robbery; [¶] . . .
[¶] To decide whether the defendant intended to commit Robbery, please refer to the
separate instructions that I will give you on that crime.‖ Next, incorporating language
from CALCRIM No. 1600, the court advised the jury regarding the elements of the
substantive offense of robbery, in pertinent part: ―The defendant is charged in Counts 1,
2 and 3 with attempted robbery. [¶] To prove that the defendant is guilty of this crime, the
People must prove that: [¶] . . . [¶] 4. The defendant used force or fear to take the
property or to prevent the person from resisting; [¶] AND [¶] 5. When the defendant used
force or fear to take the property, he intended to deprive the owner of it permanently or to
remove it from the owner‘s possession for so extended a period of time that the owner
would be deprived of a major portion of the value or enjoyment of the property. [¶] The
defendant‘s intent to take the property must have been formed before or during the time
he used force or fear. If the defendant did not form this required intent until after using
the force or fear, then he did not commit robbery.‖ Drawing from the language in
CALCRIM No. 3146, the court advised the jury regarding the elements of the special
allegations relating to personal use of a firearm, in pertinent part: ―If you find the
defendant guilty of the crimes charged in Counts 1, 2, 3, and/or 4 you must then decide
whether, for each crime, the People have proved the additional allegation that the
defendant personally used a firearm during the commission of that crime. You must
decide whether the People have proved this allegation for each crime and return a
separate finding for each crime. [¶] . . . [¶] . . . [¶] Someone personally uses a firearm if
he or she intentionally does any of the following: [¶] 1. Displays the weapon in a
menacing manner; [¶] 2. Hits someone with the weapon; [¶] OR [¶] 3. Fires the weapon.
[¶] 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.‖


                                             14
to instruct the jury using the language in CALCRIM No. 251 (concept of concurrence of
act and wrongful intent) was cured by the substantive crimes instructions, which
informed the jury that a conviction required a finding that defendant acted with the
appropriate intent for each crime. Similarly, any error in failing to instruct the jury using
the language in CALCRIM No. 223 (definition of direct and circumstantial evidence)
was cured by other instructions, which allowed the jury to properly consider the
evidence. Specifically, the jurors were told they ―must decide what the facts are in this
case,‖ ― ‗[e]vidence‘ is the sworn testimony of witnesses, the exhibits admitted into
evidence, and anything else [the court] told you to consider as evidence,‖ ―[o]nly the
witnesses‘ answers are evidence,‖ and ―[i]n deciding whether the People have proved
their case beyond a reasonable doubt, you must impartially compare and consider all the
evidence that was received throughout the entire trial. Unless the evidence proves the
defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must
find him not guilty.‖ (CALCRIM Nos. 220, 222.) Additionally, the jury was advised
how to use circumstantial evidence: ―Before you may rely on circumstantial evidence to
conclude that a fact necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that conclusion beyond a
reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the
defendant guilty, you must be convinced that the only reasonable conclusion supported
by the circumstantial evidence is that the defendant is guilty. If you can draw two or
more reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions points to innocence and another to guilt, you must accept the one
that points to innocence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable.‖ (CALCRIM
No. 224.) Despite the failure to define direct and circumstantial evidence, the jury
apparently understood those concepts – the jury found defendant not guilty of possessing
the shotgun found in his car‘s trunk, thereby rejecting the prosecution‘s circumstantial
evidence, i.e., where ― ‗guilt must be inferred from a pattern of incriminating
circumstances.‘ ‖ (People v. Heishman (1988) 45 Cal.3d 147, 167.) Last, the omission


                                             15
of the language in CALCRIM Nos. 223 and 251 did not impinge on defendant‘s ―right to
due process and a fair jury deliberation process.‖ The given instructions ―made clear that
the prosecution had to prove defendant‘s guilt, including the existence of the required
mental states, beyond a reasonable doubt‖ (People v. Livingston (2012) 53 Cal.4th 1145,
1165), thereby comporting with the due process standard in In re Winship (1970) 397
U.S. 358, 364. Thus, we conclude instructional errors, if any, were harmless under any
standard of review. (Chapman, supra, 386 U.S. at p. 24, Watson, supra, 46 Cal.2d at
p. 836.)

II.    Trial Court’s Refusal to Instruct on the Lesser Included Offenses of
       Attempted Robbery
       Defendant argues the trial court violated his Sixth Amendment right to a properly
instructed jury by refusing to instruct the jury on the lesser included offenses of attempted
grand theft from a person, attempted petty theft, and simple assault. The trial court
denied the requested instructions in light of the evidence, ―specifically, the evidence that
a firearm was pointed, and, in fact, touched, in some cases, the midriffs or bellies of at
least two of the three alleged victims, and the fact that the defendant has no memory and
he was not able to provide any other theory or any other information related to a theory of
grand theft from the person or petty theft . . . .‖ According to the court, instructions on
the requested lesser included offenses were ―not required where the evidence . . . clearly
indicate[d] the theory of robbery. [¶] O[f] all those cases where they had an issue with
grand theft, petty theft of a person not being provided, they were really purse snatcher-
type cases. There was not the opportunity for the force and fear. And that[ ] just does
not fit with the factual scenario presented in this case.‖
       On appeal the parties have presented arguments as to whether attempted grand
theft, attempted petty theft, and assault, qualified as lesser included offenses in this case,
but we do not need to address those contentions. Even if attempted grand theft,
attempted petty theft, and assault, qualified as lesser included offenses, the trial court
correctly refused to so instruct the jury as no substantial evidence supports a finding that




                                              16
defendant did not intend to rob the victims, but only to assault or steal from them without
force or fear. (See People v. Dorsey (1995) 34 Cal.App.4th 694, 705-706.)
       ―Although a defendant has a constitutional right to have a jury determine every
material issue presented by the evidence and the failure to so instruct is error, a trial court
is not required to instruct the jury as to all lesser included offenses, only those that ‗find
substantial support in the evidence.‘ [Citation.] In this context, substantial evidence is
evidence from which reasonable jurors could conclude ‗ ―that the lesser offense, but not
the greater, was committed.‖ ‘ ‖ (People v. Medina (2007) 41 Cal.4th 685, 700.) ―[I]f
there is no proof, other than an unexplainable rejection of the prosecution‘s evidence, that
the offense was less than that charged, such instructions shall not be given.‖ (People v.
Kraft (2000) 23 Cal.4th 978, 1063.)
       Here, all of the victims in the store testified they were approached by an armed
gunman who put them in fear and sought money. Even assuming Ramirez did not
understand what the gunman said, there was no evidence the gunman intended to assault
her if she failed to comply with his request. The sum and substance of the evidence
relating to intoxication was defendant‘s self-serving testimony that some six hours before
the attempted robberies he had drunk seven shots of Cognac, his last memory was
dancing with an unidentified woman at a party, and his next memory was waking up in
jail. Thus, we conclude, as did the trial court, that the evidence presented to the jurors
presented them with ― ‗an all-or-nothing choice‘: the jury could either find that defendant
had committed the [attempted robberies] or it could find that he had committed no
crime.‖ (People v. Friend (2009) 47 Cal.4th 1, 52.)

III.   Admission of Evidence of Defendant’s Prior Juvenile Robbery Offense and
       Adult Drug Offense
       Before trial, both the prosecutor and defendant asked the court to rule on the
admissibility of defendant‘s prior juvenile robbery and adult drug offense of transporting
cocaine for sale as impeachment evidence if defendant chose to testify. Defendant sought
exclusion of the priors, while the prosecution sought their admission. After an Evidence
Code section ―352 analysis,‖ the trial court ruled both priors would be admissible as


                                              17
impeachment evidence. The court explained that if defendant chose to testify, his
―credibility and veracity‖ would be ―critical issues,‖ and the priors were ―central to the
ability to evaluate his credibility,‖ and ―not remote,‖ but ―recent in time.‖ We find no
error in the trial court‘s ruling.
       On appeal defendant does not dispute that his priors constituted conduct that can
be used as impeachment evidence. (See People v. Castro (1985) 38 Cal.3d 301, 317
[allowing use of prior possession of heroin for sale]; People v. Jackson (1985) 174
Cal.App.3d 260, 266 [allowing use of prior robbery]; see also People v. Lee (1994) 28
Cal.App.4th 1724, 1740 [the prosecution may introduce prior conduct that was ―the
subject of a juvenile adjudication, subject, of course, to the restrictions imposed under
Evidence Code section 352 and other applicable evidentiary limitations‖].) Moreover,
admission of the robbery prior was not error despite any similarity to the currently
charged attempted robbery offenses. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th
1083, 1139; People v. Tamborrino (1989) 215 Cal.App.3d 575, 590 (Tamborrino)
[impeachment allowed using robbery priors identical to charged offense].) Further, the
priors were not necessarily so remote in time as to be inadmissible for impeachment.
―Even a fairly remote prior is admissible if the defendant has not led a legally blameless
life since the time of the remote prior.‖ (People v. Mendoza (2000) 78 Cal.App.4th 918,
925-926.) In this case, since the commission of the robbery prior, defendant had been
convicted of transporting cocaine for sale, and committed the current offenses while on
revoked probation status for the drug conviction.
       We are not persuaded by defendant‘s argument that his priors should have been
excluded because his testimony was critical to his defense. ―Defendant‘s credibility
would be the crucial issue for the People as well as for the defendant if he took the stand
and denied the [attempted] robberies. . . . There were no eyewitnesses to the [attempted]
robber[ies] except [the three victims who were] unable to identify defendant. The priors
would be highly probative on the issue of defendant‘s credibility.‖ (Tamborrino, supra,
215 Cal.App.3d at p. 590.) The fact that the jury asked to hear defendant‘s testimony
during deliberations does not demonstrate that the evidence of the priors adversely


                                             18
affected the verdict. During deliberations, the jury also asked to hear the testimony of
CHP Officer Garside and Dixon Police Officer Willingmyre. The jury‘s request to rehear
testimony and its verdicts, including acquitting defendant of possessing the shotgun
found in his car‘s trunk, demonstrates the jury focused on the evidence and not the priors.
Thus, we reject defendant‘s contention that it is reasonably probable that a result more
favorable to him would have been reached had the trial court not permitted the priors to
be used as impeachment evidence.

IV.    Cumulative Errors
       Defendant contends reversal is warranted on grounds of cumulative error, arguing
that the errors, considered together, are not harmless beyond a reasonable doubt. We
disagree. As in People v. Cole (2004) 33 Cal.4th 1158, ― ‗[w]e have either rejected on
the merits defendant‘s claims of error or have found any assumed errors to be
nonprejudicial.‘ ‖ (Id. at pp. 1235-1236.) ―[A] series of trial errors, though
independently harmless, may in some circumstances rise by accretion to the level of
reversible and prejudicial error.‖ (People v. Hill (1998) 17 Cal.4th 800, 844-845.) This
is not such a case. The record demonstrates that any purported errors, considered
individually or collectively, were not so prejudicial as to deny defendant a fair trial or
reliable verdicts.
V.     Sentencing Issues
       A.     True Finding of Defendant’s Prior Juvenile Adjudication
       The information alleged that on August 19, 2004, in Solano County, defendant had
suffered a juvenile adjudication for ―PC211,‖ which qualified as a strike within the
meaning of the Three Strikes law. At a bifurcated bench trial, the prosecutor submitted
the matter based on the following documents admitted into evidence: a certified copy of
waiver of rights form filed August 19, 2004; a file-stamped copy of a court minute order
dated August 19, 2004, signed by the judicial officer who presided in the juvenile court; a
certified copy of a court minute order dated September 2, 2004, signed by the judicial
officer who presided in the juvenile court; and a reporter‘s transcript of the September 2,
2004, hearing. The prosecutor also asked the court to take ―judicial notice‖ of the fact

                                              19
that during the guilt-phase portion of the trial defendant admitted he had sustained a
juvenile adjudication for robbery.
       After argument by counsel, the trial court found defendant had sustained a prior
juvenile adjudication for robbery in violation of section 211, which offense would qualify
as a strike within the meaning of the Three Strikes law. In so ruling, the court explained:
―I did see in People‘s Exhibit 1 [waiver of rights form], it was not signed by either the
defendant or by the judge accepting the plea. However, the minutes from that same date
August 19, 2004 do indicate that the written waiver was filed and orally verified, [and]
indicated that the Court accepted and that there was an intelligent waiver of rights and a
factual basis. [¶] Based on the totality of the documents and the presumption that the
minutes are correct, I will accept that as a valid plea and intelligently received by the
Court. [¶] Also notably, the date of birth is contained within that minute order, same date
of birth as alleged in the Information for [defendant], and without doing the math, I‘ll
rely on the minute order which indicates at the time of the event, he was 16 years old. [¶]
Also, [defendant] did testify as to his remembrance that he had plead . . . to a 211 as a
juvenile.‖16
       On appeal defendant claims there was insufficient evidence to support the trial
court‘s finding. We disagree. Contrary to defendant‘s contention, the trial court could
reasonably rely on the admitted juvenile court documents: (a) defendant‘s written waiver
form in case no. J034849, initialed by defendant, indicated he wished to enter an
admission to counts ―I (211 pc on July 4, 2004) & III 594 pc (vandalism);‖ (b) the
juvenile court‘s minute order of August 19, 2004 (approved and signed by the presiding
judicial officer), noted defendant‘s ―DOB‖ as ―9-9-87,‖ his age as ―16,‖ and stated, in
pertinent part: THE COURT MAKES THE FOLLOWING FINDINGS & ORDERS:
―Allegations . . . admitted cts. 1 & 3,‖ ―Written waiver filed & orally verified,‖ ―Court


16
        Defendant‘s juvenile adjudication was escalated from a shoplifting incident to a
robbery based on People v. Estes (1983) 147 Cal.App.3d 23, in which the court found the
use of force to prevent a security guard from regaining possession of property elevated a
petty theft and subsequent assault to robbery. (Id. at p. 28.)


                                             20
accepts admission(s) as free & voluntary with an intelligent waiver of rights given & a
factual basis established,‖ and ―Petition deemed . . . Felony as to cts. 1;‖ 17 and (c) the
September 2, 2004, minute order (signed by the presiding judicial officer), and the
reporter‘s transcript of the September 2, 2004, hearing, which indicated that defendant
was adjudged a ward of the court based on the petition filed in case no. J034849.
       To the extent the juvenile court documents do not specifically refer to defendant‘s
admission to a violation of Penal Code section 211 (robbery), the trial court appropriately
considered defendant‘s guilt-phase trial testimony in which he stated that at 16 he
admitted to violating Penal Code section 211, robbery, in a juvenile court proceeding
held on August 19, 2004.18 Relying on a concurring and dissenting opinion of then

17
        Defendant correctly notes the August 19, 2004, minute order has boxes checked
for the quoted findings set forth in the text of this opinion. He then argues that
―[a]lthough infrequent, court clerks have erred in checking boxes and noting court orders
on minute orders,‖ and ―[w]here there is a conflict, a court‘s oral pronouncements
reflected in the reporter‘s transcript of the proceedings supersede the information in a
minute order.‖ He then argues that because there is no other ―documentary evidence to
confirm‖ what the August 19, 2004, minute order ―suggests,‖ this document cannot
reliably reflect an admission of robbery. We disagree. Defendant ignores the fact that
the August 19, 2004, minute order is approved and signed by the judicial officer who
presided at that proceeding. In the absence of any affirmative showing that the minute
order does not accurately reflect what occurred in the juvenile court on August 19, 2004,
we will not presume, as defendant appears to argue, that the minute order represents a
clerical error, or is in conflict with the oral proceedings that occurred in the juvenile court
on August 19, 2004. (See Evid. Code, § 664 [presumption that official duty has been
regularly performed]; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [judicial order
is presumed correct and error must be affirmatively shown].)
18
        Defendant correctly concedes he made no objection to the prosecution‘s request
that the court take ―judicial notice‖ of his guilt-phase testimony on the specific ground
that such evidence was not the proper subject of judicial notice under Evidence Code
section 452. Further, before taking ―judicial notice‖ of defendant‘s guilt-phase trial
testimony, the trial court complied with Evidence Code section 455, by affording defense
counsel a ―reasonable opportunity . . . before the cause [was] submitted for decision by
the court, to present to the court information relevant to (1) the propriety of taking
judicial notice of the matter and (2) the tenor of the matter to be noticed.‖ (Id., subd. (a).)
In all events, even without a request for judicial notice, the trial court could consider
defendant‘s guilt-phase trial testimony in determining whether he had sustained a
juvenile adjudication for robbery, as we discuss in the text of this opinion.

                                              21
Associate Justice Raymond E. Peters in Jones v. Superior Court (1962) 58 Cal.2d 56, 62-
63 (Jones), defendant argues that any use of his guilt-phase trial testimony made him a
witness against himself and lessened the prosecution‘s burden of proof on the issue of the
truth of the prior juvenile adjudication, which ―is improper and unfair.‖ However, Jones
is inapposite as it concerned a prosecution‘s request for pretrial discovery in an attempt to
benefit from the defendant‘s knowledge of potential evidence to be used against him at
trial. (Id. at p. 60.) Here, we are concerned with the use of defendant‘s freely offered
guilt-phase trial testimony to prove a prior juvenile adjudication in the bifurcated
enhancement phase. Because ―[b]ifurcating the trial does not create two separate
actions,‖ ―when [defendant] waive[d] his privilege against self-incrimination by
testifying in the guilt phase of the trial, that privilege [was] waived for the sentencing
phase as well.‖ (People v. Harris (1992) 8 Cal.App.4th 104, 108; see id. at pp. 106-107
[prosecution allowed to use defendant‘s guilt-phase trial admission of prior robbery
conviction in bifurcated enhancement phase where fingerprint evidence was not available
to prove identity for prior robbery conviction].) Contrary to defendant‘s additional
argument, we see nothing in his guilt-phase trial testimony that calls into question the
trial court‘s reliance on his admission to a juvenile adjudication for robbery.
       In sum, we conclude defendant‘s guilt-phase trial testimony, together with the
juvenile court documents, constituted substantial evidence to support the trial court‘s
finding that defendant sustained a juvenile adjudication for robbery, a qualifying strike
under the Three Strikes law.

       B.     Denial of Defendant’s Request to Strike Prior Juvenile Adjudication
       For sentencing purposes, defendant asked the court to exercise its discretion,
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508 (Romero), to
strike his prior juvenile adjudication, which request was opposed by the prosecution. The
trial court denied defendant‘s motion to strike, ruling as follows: ―I don‘t think the
interest of justice warrants striking the prior, and the defendant has [not] shown me in
terms of his conduct on probation, his adult probation matter an[d] his conduct during the
trial would warrant me to exercise that type of discretion or decision making. [¶] And

                                              22
frankly, I disagree with the characterization about a career criminal. I think he has earned
himself a new career.‖
       On appeal defendant argues the trial court abused its discretion by refusing to
strike his prior juvenile adjudication for sentencing purposes. We see no merit to the
argument. The trial court here appropriately found defendant‘s situation was not so
extraordinary as to warrant striking his prior juvenile adjudication for sentencing
purposes. As noted in the probation department‘s report, defendant‘s escalation of a
shoplifting incident to a robbery, his later commission of a serious drug offense, and his
current commission of attempted robberies, demonstrated ―a pattern of . . . increasingly
serious criminal conduct.‖ The trial court aptly commented that defendant‘s conduct
demonstrated he had ―a new career.‖ The trial court acted well within its discretionary
authority in refusing to treat defendant ―as though he had not previously been convicted
of one or more serious and/or violent felonies.‖ (People v. Williams (1998) 17 Cal.4th
148, 161.)

       C.     Constitutionality of 10-Year Term Imposed on Section 12022.53(b)
              Firearm Enhancement As Applied to Defendant
       In both a written memorandum and during oral argument at sentencing, defendant
asked the trial court to strike the 10-year term for the section 12022.53(b) firearm
enhancement as unconstitutional (U.S. Const., 8th Amend. 19; Cal. Const., art. I, § 1720),
as applied to him. The trial court considered defendant‘s arguments and understood it
had the discretion to strike the enhancement as unconstitutional as applied to him, but
denied the request for the reasons it gave for its sentencing decisions. 21


19
        ―The Eighth Amendment of the United States Constitution prohibits infliction of
‗cruel and unusual punishment.‘ This prohibition is applicable to the states by virtue of
its incorporation in the due process clause of the Fourteenth Amendment.‖ (People v.
Byrd (2001) 89 Cal.App.4th 1373, 1382, fn. 13.)
20
        Article I, section 17 of the California Constitution provides, in pertinent part:
―Cruel or unusual punishment may not be inflicted . . . .‖
21
        Consequently, the Attorney General‘s argument that defendant forfeited appellate
review of his federal and state constitutional arguments is not well founded. In his

                                             23
       On appeal defendant argues the imposition of the 10-year term for the section
12022.53(b) firearm enhancement was unconstitutional as applied to him. Although our
review is de novo (Felix, supra, 108 Cal.App.4th at p. 1000), we reject, for the reasons set
forth below, defendant‘s as-applied constitutional challenge.
       ―To determine whether a sentence is cruel or unusual as applied to a particular
defendant, a reviewing court must examine the circumstances of the offense, including its
motive, the extent of the defendant‘s involvement in the crime, the manner in which the
crime was committed, and the consequences of the defendant‘s acts. The court must also
consider the personal characteristics of the defendant, including age, prior criminality,
and mental capabilities. ([Dillon], supra, 34 Cal.3d at p. 479.) If the court concludes the
penalty imposed is ‗grossly disproportionate to the defendant‘s individual culpability‘
(ibid.), or, . . . that the punishment ‗ ― ‗shocks the conscience and offends fundamental
notions of human dignity‘ ‖ ‘ [citation], the court must invalidate the sentence as
unconstitutional.‖ (People v. Hines (1997) 15 Cal.4th 997, 1078.)
       In examining the nature of defendant‘s current offenses, the record demonstrates
he planned the robberies, wore a disguise and gloves to avoid later identification, and, as
he concedes, he frightened and scared the victims in the store ―when he entered and
pointed a gun at each one.‖ Defendant asks that we consider certain allegedly mitigating
circumstances including that he used an unloaded gun, the victims were not injured, and
no property was taken. However, the Legislature has found the personal use of a weapon
during the commission of an attempted robbery is deserving of the harsh punishment of
10 years in state prison even where the firearm is not ―operable and loaded‖ (§ 12022.53,
subds. (a)(4)(18), (b)), the victims have not been physically injured, and there was no loss

written trial memorandum, defense counsel expressly argued the court should strike the
section 12022.53(b) firearm enhancement to avoid imposing ― ‗an unconstitutional
punishment‘ ‖ on defendant, citing to People v. Dillon (1983) 34 Cal.3d 441 (Dillon), and
People v. Felix (2002) 108 Cal.App.4th 994 (Felix). At sentencing, defense counsel
renewed his argument, asking the court ―to engage in the analysis that is set forth in the
reported decisions‖ cited in his sentencing memorandum, and to strike the enhancement
if the court finds ―it would constitute a violation of [defendant‘s] 8th Amendment rights
[under] the United States Constitution,‖ and is ―excessive as applied to [defendant].‖


                                             24
of property. (§ 12022.53, subds. (a)(4)(18), (b) 22; see People v. Ingram (1995) 40
Cal.App.4th 1397, 1416 [―[t]he seriousness of the threat a particular offense poses to
society is not solely depended upon whether it involves physical injury‖ to the victims],
disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8;
Rummel v. Estelle (1980) 445 U.S. 263, 275 [―the presence or absence of violence does
not always affect the strength of society‘s interest in deterring a particular crime or in
punishing a particular criminal‖].) Section 12022.53(b) ―punishes the perpetrator of one
of the specified crimes more severely for introducing a firearm into a situation which, by
the nature of the crime, is already dangerous and increases the chances of violence and
bodily injury. We conclude nothing in the nature of the offense or how it was committed
allows striking the mandatory enhancement as cruel or unusual.‖ (Felix, supra, 108
Cal.App.4th at p. 1001.)
       Nor do we find that defendant‘s personal characteristics render the 10-year term
unconstitutionally excessive. At the time of the current offenses in November 2008,
defendant was 21 years old. Although he had never been incarcerated, defendant had
been adjudicated a juvenile offender for a shoplifting incident that escalated to a robbery.
As an adult, he had been convicted of transporting cocaine for sale and given a
probationary term. Less than eight months later, while in revoked probation status for his
drug conviction, he armed himself with a firearm and committed the current serious
offenses, thereby putting the community at risk. We agree with the trial court‘s
comments that the victims ―really did suffer a traumatic event,‖ and that defendant
22
        ―Section 12022.53 as a whole represents a careful gradation by the Legislature of
the consequences of gun use in the commission of serious crimes. The section is limited,
in the first place, to convictions of certain very serious felonies. The statute then sets
forth three gradations of punishment based on increasingly serious types and
consequences of firearm use in the commission of the designated felonies: 10 years if the
defendant merely used a firearm, 20 years if the defendant personally and intentionally
discharged it, and 25 years to life if the defendant‘s intentional discharge of the firearm
proximately caused great bodily injury. Furthermore, the provision in question is an
enhancement to the base term for the underlying conviction; a trial court retains
flexibility as to fixing the underlying base term. . . .‖ (People v. Martinez (1999) 76
Cal.App.4th 489, 495, fn. omitted.)


                                              25
―lack[ed] insight, responsibility, credibility, and empathy for the people whose lives he
irrevocably changed by the decisions he made.‖
       In sum, based on our independent review, we conclude the imposition of the 10-
year firearm enhancement under section 12022.53(b) was neither cruel nor unusual
punishment in this case.

       D.     Consecutive Terms on Counts Two, Three, and Four, and
              Upper Term Imposed but Stayed for Section 12022.5 Firearm
              Enhancement
       Before sentencing, both the prosecutor and defense counsel submitted
memorandums addressing sentence. The People sought an aggregate term of 18 years,
eight months. Defense counsel did not proffer a specific aggregate term. Instead, he
argued the court should impose the low term on count one (attempted robbery), strike the
10-year term for the section 12022.53(b) firearm enhancement as unconstitutional, and
impose concurrent terms for counts two (attempted robbery), three (attempted robbery),
and four (possession of a firearm by a felon).
       At sentencing, the trial court stated its reasons for its sentencing choices as
follows: ―I previously denied the Romero motion. And to that extent, those comments
also apply to the decision to not exercise my discretion to strike the [section 12022.53(b)
firearm] enhancement, nor to run the sentences concurrent, despite [defense counsel‘s]
invitation to do so. And part of my evaluation was public safety. I reviewed the
preliminary hearing transcript . . . . [I have] considered all of the evidence, including the
defendant‘s testimony and the probation report. And based upon the nature of the crime,
which there were three victims, and the fact that the defendant was a felon in possession
of a firearm, that he seemingly lacked responsibility – he‘s now taken an inconsistent
approach with trying to be credited for making a decision not to bring a loaded firearm,
which – thank goodness it wasn‘t a loaded firearm, or we might not be talking about an
attempted robbery, given the circumstances, but yet to testify and present to the Court
that he had no memory whatsoever regarding this case, that he entirely blacked out from
some supposed alcohol intake the evening before, that simply lacks insight,



                                             26
responsibility, credibility, and empathy for the people whose lives he irrevocably
changed by the decisions he made. So I did not find the Romero motion to be
appropriate. [¶] And unlike so many cases where the first strike is really, really serious,
but the second case is not very serious . . ., this case is extremely serious and really does
not warrant that type of leniency.‖
       The court then imposed an aggregate term of 18 years, consisting of 14 years for
count one (attempted robbery) (middle term of two years on the substantive offense,
doubled for the prior strike, plus a consecutive term of 10 years for the related section
12022.53(b) firearm enhancement), plus consecutive terms of one year, four months
(one-third the middle term doubled for the prior strike) for counts two, three, and four.
Because defendant could not be punished for more than one firearm enhancement, the
court imposed but stayed a 10-year upper term on a section 12022.5 firearm enhancement
related to count one. The prosecutor dismissed the related firearm enhancements alleged
as to counts two and three. Defense counsel asked the court for its reasons for imposing
the upper term on the stayed firearm enhancement, ―for the record.‖ The trial court
replied: ―[T]here were multiple victims. And in this particular case, I found it [a] very
aggravating circumstance that not only was a weapon pointed at three different people,
and the person was in possession of the firearm, but also there was a point-blank range.
There was testimony that the gun actually was direct[ly] located next to the . . . upper part
of the belly of one of the victims . . . . [¶] So based upon the aggravated circumstances, I
would find that the ten years for the [enhancement] that I am staying is appropriate.‖
Defendant lodged no objection to the court‘s statement of reasons.       The court also
imposed a concurrent four-year term on the prior drug conviction after revoking
probation on that conviction. Although the court acknowledged defendant was subject to
a separate sentence for the drug conviction, it decided the sentences in the two cases
should run concurrently because defendant ―is a person of young age and there was quite
a bit more opportunity for a greater liability. And certainly I construed it in a fashion, I
think, that was fair to the victims in this case, and recognized that they really did suffer a



                                              27
traumatic event, but also judicious in recognizing that [defendant] is a young man and has
not previously served a prison commitment.‖
       On appeal defendant argues the trial court abused its discretion in imposing
consecutive terms on counts two and three (attempted robberies) and count four
(possession of a firearm by a felon). We disagree, finding the authority on which
defendant relies inapposite. Unlike the situations in People v. Deloza (1998) 18 Cal.4th
585, 600, and People v. Danowski (1999) 74 Cal.App.4th 815, 821, the trial court in this
case understood that consecutive terms were not mandated as a matter of law. While the
record may support a contrary finding, we see no abuse of discretion in the court‘s ruling
that consecutive terms were warranted as the three attempted robberies constituted
―separate acts of violence or threats of violence‖ (Cal. Rules of Court, rule 4.425(a)(2)23),
and were not ―committed so closely in time and place as to indicate a single period of
aberrant behavior‖ (Rule 4.425(a)(3)). The trial court could reasonably find defendant‘s
attempted robberies were separated by sufficient periods of time to give him the
opportunity to reflect and to cease his criminal behavior, which he failed to do. (See
People v. Calhoun (2007) 40 Cal.4th 398, 407-408 [trial court may impose consecutive
sentences when two or more crimes are transactionally related and each involves a
different victim]; People v. Trotter (1992) 7 Cal.App.4th 363, 368 [trial court acted
within its discretion in imposing consecutive sentences for two assault convictions based
on firing two shots a minute apart at the victim].) The trial court also could reasonably
find defendant‘s possession of a firearm as a felon was ―predominately independent‖ of
the attempted robberies. (Rule 4.425(a)(1); see People v. Ratcliff (1990) 223 Cal.App.3d
1401, 1414 [―[c]ommission of a crime under section 12021 [possession of a firearm by a
felon] is complete once the intent to possess is perfected by possession;‖ ―[w]hat the ex-
felon does with the weapon later is another separate and distinct transaction undertaken
with an additional intent which necessarily is something more than the mere intent to
possess the proscribed weapon‖].)


23
       All further unspecified rules are to the California Rules of Court.


                                             28
        Defendant also mounts a challenge to the sentence arguing that the trial court erred
when it used the same factors to impose both consecutive terms on the substantive
offenses and the upper term on the stayed firearm enhancement. However, this claim of
error is not properly before us. At the time of sentencing, the trial court stated its reasons
for refusing to impose concurrent terms on counts two through four. After imposing a
mandatory and consecutive 10-year term on the section 12022.53(b) firearm
enhancement, the court indicated it would impose but stay an upper term of 10 years on
the section 12022.5 firearm enhancement. (See § 12022.53, subds. (f), (j); Rule 4.447.) 24
In response to defense counsel‘s request, the trial court stated its reasons for imposing the
upper term on the stayed firearm enhancement. Had counsel objected to the reasons on
the ground now asserted on appeal — the purported use of the same factors — the trial
court could have clarified its reasons for imposing the upper term on the stayed firearm
enhancement and the consecutive terms on the substantive offenses. Consequently, we
reject defendant‘s contentions that his trial counsel did not have a meaningful opportunity
to object and that any objection would have been futile. In the absence of an objection,
defendant has forfeited his appellate contention. (People v. Scott (1994) 9 Cal.4th 331,
353.)
        In all events, defendant has failed to demonstrate how he was prejudiced by the
trial court‘s sentencing choices. (See People v. Black (2007) 41 Cal.4th 799, 822; People
24
        Section 12022.53, provides, in pertinent part, that ―[a]n enhancement involving a
firearm specified in Section . . .12022.5 . . . shall not be imposed on a person in addition
to an enhancement imposed pursuant to this section [12022.53],‖ and ―[w]hen an
enhancement specified in this section [12022.53] has been admitted or found to be true,
the court shall impose punishment for that enhancement pursuant to this section rather
than imposing punishment authorized under any other provision of law, unless another
enhancement provides for a greater penalty or a longer term of imprisonment.‖ (Id.,
subds. (f), (j).) Rule 4.447 reads: ―No finding or an enhancement may be stricken or
dismissed because imposition of the term either is prohibited by law or exceeds
limitations on the imposition of multiple enhancements. The sentencing judge must
impose sentence for the aggregate term of imprisonment computed without reference to
those prohibitions and limitations, and must thereupon stay execution of so much of the
term as is prohibited or exceeds the applicable limit. The stay will become permanent on
the defendant‘s service of the portion of the sentence not stayed.‖


                                              29
v. Yim (2007) 152 Cal.App.4th 366, 369; People v. Lamb (1988) 206 Cal.App.3d 397,
401; see Rule 4.420(b) [trial court is not limited by the aggravating factors listed in the
court rules, but may rely on ―any other factor reasonably related to the sentencing
decision‖].) The trial court‘s articulation of several aggravating factors for choosing to
impose consecutive terms on the substantive offenses and an upper term on the stayed
firearm enhancement did not exceed ―the bounds of reason, all of the circumstances being
considered.‖ (People v. Giminez (1975) 14 Cal.3d 68, 72.) We are confident that if we
remanded the matter for resentencing, the trial court would impose the same sentences
without relying on any purported use of the same aggravating factors. (See People v.
Osband (1996) 13 Cal.4th 622, 732; People v. Douglas (1995) 36 Cal.App.4th 1681,
1691.)25

       E.     Presentence Conduct Credit on Prior Drug Conviction
       At the time of his arrest on November 28, 2008, defendant was out of custody on
probation in ―revoked status‖ on a prior drug conviction. While in custody on the
November 28, 2008, offenses, defendant was concurrently in custody based on a
violation of probation petition filed in the drug conviction case. After the jury returned
its verdict on the November 28, 2008, offenses, the trial court found defendant had
violated his probationary term imposed on the prior drug conviction.
       On January 14, 2011, the court sentenced defendant on the convictions resulting
from the November 28, 2008, offenses and his prior drug conviction. For his prior drug
conviction, the court calculated defendant‘s presentence credit under section 4019 that
was in effect before January 25, 2010, which gave one-third time off – for every four
days actually served, six days were deemed served. Thus, defendant was awarded 1,272
days on the probation violation case: 848 actual days plus 424 days for conduct credit.
       On appeal defendant argues he is entitled to an additional 424 days conduct credit
for time served from November 28, 2008 until January 14, 2011 for the prior drug

25
       In light of our determination, we need not address defendant‘s claim that his trial
counsel was ineffective for failing to object to the purported dual use of sentencing
factors.


                                             30
conviction, pursuant to former section 4019, subdivision (g), which became operative on
January 25, 2010. (Stats. 2009-2010, ch. 28 (Third Extra. Sess.), § 50.)26 Under that
amended law, a defendant was entitled to receive one day of conduct credit for every day
of actual custody. (Ibid.) 27 However, since the filing of the briefs in this case, our
Supreme Court has concluded the January 25, 2010 amendment to section 4019 should be
applied prospectively only. (People v. Brown (2012) 54 Cal.4th 314, 318.) ―To apply
former section 4019 prospectively necessarily means that prisoners whose custody
overlapped the statute‘s operative date (Jan. 25, 2010) earned credit at two different
rates.‖ (Brown, supra, at p. 322.) Because defendant‘s presentence conduct credit on the
prior drug conviction overlapped former section 4019‘s operative date (January 25,
2010), we will remand the matter to the trial court to recalculate the award of presentence
conduct credit on that case: for the period from November 28, 2008 to January 24, 2010,
the court should apply the pre-January 25, 2010 version of section 4019, and for the
period from January 25, 2010 to January 14, 2011, the court should apply the January 25,
2010 version of section 4019.




26
        The Attorney General argues defendant is not entitled to the benefit of the
statutory amendment effective January 25, 2010, because he was sentenced on
―January 14, 2010.‖ However, as noted in the text, defendant was not sentenced until
January 14, 2011, after the operative date of the January 25, 2010 statutory amendment.
27
        On September 28, 2010, the Legislature further amended the statute to restore the
original, lower credit-earning rate. (Stats. 2010, ch. 426, § 2.) However, ―[b]y its
express terms newly created subdivision (g) of section 4019 declared the September 28,
2010 amendment applied only to prisoners confined for a crime committed on or after the
effective date of that amendment. (§ 4019, subd. (g).)‖ (Payton v. Superior Court (2011)
202 Cal.App.4th 1187, 1190, fn. 3.) Thereafter, the Legislature amended the statute yet
again to raise the rate, and again the new amended rate applied only to prisoners confined
for a crime committed on or after July 1, 2011, the operative date of that amendment.
(Stats. 2011, ch. 15, §§ 482, 639.) The new amendments do not affect defendant‘s claim
for presentence conduct credit.


                                             31
                                     DISPOSITION
       The matter is remanded to the trial court for a recalculation of the award of
presentence conduct credit consistent with this opinion. In all other respects, the
judgment is affirmed.



                                                  _________________________
                                                  Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




                                             32
