Filed 1/9/17
                     CERTIFIED FOR PARTIAL PUBLICATION*

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION FIVE


THE PEOPLE,
        Plaintiff and Respondent,
                                                  A145868
v.
JAMES DAVID EPPERSON,                             (Solano County
                                                  Super. Ct. No. VCR216163)
        Defendant and Appellant.


        Penal Code section 213, subdivision (a)(1)(A),1 establishes an increased
sentencing range for first degree robbery when the crime is committed inside an inhabited
dwelling by a defendant “voluntarily acting in concert with two or more other persons.”
Appellant James David Epperson argues this provision applies only to completed
robberies and was improperly used to increase his sentence for four counts of attempted
first degree residential robbery. He further contends that even if section 213, subdivision
(a)(1)(A), may be used to increase the sentence for attempted robbery, the true findings in
this case must be stricken because the trial court failed to adequately instruct the jury on
the elements of that allegation in connection with the attempted robbery counts. Finally,
appellant argues the abstract of judgment must be modified because it erroneously states
that firearm enhancements were imposed under section 12022.5, subdivision (a), in
addition to section 12022.53, subdivision (b). We agree with the final contention but
otherwise affirm.


*
        Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II and III of the Discussion.
1
        Further statutory references are to the Penal Code.


                                              1
                                      BACKGROUND
        Due to the nature of the issues presented in this case, a detailed rendition of the
underlying facts is not required. Suffice it to say that on October 11, 2012, appellant and
two codefendants armed themselves with guns and forcibly entered the home of Amy
Eustice, where they threatened, robbed and attempted to rob Eustice and several of her
guests. Police arrived at the scene while the robbery was ongoing because one of the
guests was able to call 911 on his cell phone.
        Appellant and one of his two codefendants were tried before a jury2 and appellant
was convicted of two counts of first degree robbery (§§ 211, 212.5, subd. (a); counts 4,
6), four counts of attempted first degree robbery (§§ 211, 212.5, subd. (a), 664; counts 1–
3, 5), and one count each of first degree burglary (§ 459; count 7), false imprisonment by
violence (§ 236; count 8), assault with a firearm (§ 245, subd. (a)(2); count 9), and
criminal threats (§ 422; count 10). Enhancement allegations for personal use of a firearm
were found true in connection with the robbery, attempted robbery, burglary and false
imprisonment counts. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) The jury also found
that during the robberies and attempted robberies, appellant acted in concert within the
meaning of section 213, subdivision (a)(1)(A).
        Appellant was sentenced to prison for an aggregate term of 40 years, four months:
(1) the six-year middle term for the first degree robbery in count 4 plus a consecutive ten-
year term for the firearm enhancement under section 12022.53, subdivision (b); (2) a
consecutive two-year term (one-third the middle term) for the first degree robbery in
count 6 plus a three-year, four-month term (one-third the middle term) for the firearm
enhancement; (3) four consecutive one-year terms for the attempted first degree robbery
counts (calculated as half of one-third the middle term for residential robbery in concert),
plus consecutive terms of three years and four months for the firearm enhancements
attached to each count; (4) a consecutive one-year term (one-third the middle term) for


2
        As to the other co-defendant, criminal proceedings were suspended under section
1368.


                                               2
the assault with a firearm court; and (5) a consecutive eight-month term (one-third the
middle term) for the criminal threats count. The terms on the burglary and false
imprisonment counts were stayed under section 654.
                                       DISCUSSION
                                               I.
                 Sentence for Attempted First Degree Residential Robbery
                                When Committed in Concert
       Appellant argues the trial court erred by imposing an unauthorized “in concert
enhancement” on the four counts of attempted first degree residential robbery. We
disagree.
       Section 213 provides: “(a) Robbery is punishable as follows: [¶] (1) Robbery of
the first degree is punishable as follows: [¶] (A) If the defendant, voluntarily acting in
concert with two or more other persons, commits the robbery within an inhabited
dwelling house, . . . by imprisonment in the state prison for three, six, or nine years. [¶]
(B) In all cases other than that specified in subparagraph (A), by imprisonment in the
state prison for three, four, or six years. [¶] (2) Robbery of the second degree is
punishable by imprisonment in the state prison for two, three, or five years. [¶] (b)
Notwithstanding Section 664, attempted robbery in violation of paragraph (2) of
subdivision (a) is punishable by imprisonment in the state prison.”
       While section 213 specifically sets forth a sentencing range for attempted second
degree robbery, it does not specify the sentencing range for attempted first degree
robbery. Section 664, subdivision (a), governs the sentencing of attempted felonies
where the punishment is not otherwise specified by statute: “(a) If the crime attempted is
punishable by imprisonment in the state prison . . . the person guilty of the attempt shall
be punished by imprisonment in the state prison . . . for one-half the term of
imprisonment prescribed upon a conviction of the offense attempted.” The question
presented in this case is: one-half of what?
       Section 213, subdivision (a), sets forth three ranges of punishment for robbery:
two, three or five years for second degree robbery; three, four or six years for first degree


                                               3
robbery; and three, six or nine years for a first degree residential robbery committed in
concert with two or more other persons. The trial court imposed consecutive one-year
terms for the attempted robbery counts, using the six-year middle term for first degree
residential robbery in concert as a starting point, reducing that term by one-half under
section 664, subdivision (a), and imposing one-third of that amount pursuant to section
1170.1, subdivision (a). We agree with the People that this was the appropriate
methodology.
       Appellant argues that because section 213, subdivision (a)(1)(A), does not refer
specifically to attempted robbery, its increased sentencing range has no application to that
crime. In support of his claim, appellant notes that the elevated range for first degree
robbery in concert under section 213, subdivision (a)(1)(A), is an enhancement or penalty
provision, rather than a substantive offense. (See In re Jonathan T. (2008) 166
Cal.App.4th 474, 480–482 (Jonathan T.).) He then relies on the principle that an attempt
to commit a crime is an offense separate and distinct from the completed crime, and an
enhancement or penalty provision applicable to a completed offense does not apply to an
attempt when it “does not expressly include attempted commission of its enumerated
offenses within its ambit.” (People v. White (1987) 188 Cal.App.3d 1128, 1138 (White),
disapproved on another point in People v. Wims (1995) 10 Cal.4th 293, 314, fn. 9.) The
line of cases on which appellant relies is inapposite.
       In White, supra, 188 Cal.App.3d at p. 1131 & fn. 1, the court held that a three-year
kidnapping enhancement applicable to “[a]ny person convicted of a felony violation of”
various completed sexual offenses could not be applied to a conviction for attempted
rape. “Section 667.8, unlike various other provisions in the Penal Code . . . does not
expressly include attempted commission of its enumerated offenses within its ambit,
which we must assume is an intentional choice of the Legislature. [Citations.] And
attempts, as we have noted above, are offenses distinct from the completed crime.
[Citation.]” (Id. at p. 1138.)
       In People v. Le (1984) 154 Cal.App.3d 1, the court considered the application of
section 667.6, subdivision (c), which allows the imposition of full strength consecutive


                                              4
sentences for violations of certain sex crimes enumerated in that provision. It concluded
the provision did not apply to a conviction of attempted forcible oral copulation, because
while forcible oral copulation was an enumerated offense, attempted forcible oral
copulation was not listed in the statute. (Id. at p. 10.) “Because attempted crimes are
considered to be separate and distinct, they are not automatically included in the list of
sexual offenses to which section 667.6, subdivision (c), applies. [Citations.]
Furthermore, if the Legislature had intended to include attempts in the enhancement
provisions, it would have specifically stated the enhancement applies to the „commission
or attempted commission‟ of specific crimes as it did in other enhancement provisions.”
(Id. at pp. 10–11.)
       In People v. Jillie (1992) 8 Cal.App.4th 960, 962–963, the court concluded section
1202.1, which requires a defendant to submit to testing for the human immunodeficiency
virus when convicted of enumerated offenses, did not apply to attempts to commit the
crimes enumerated. “We do not find the statute ambiguous. It expressly identifies the
offenses within its scope, all of which are completed offenses. Had the Legislature meant
to include attempts among the covered offenses, it could easily have done so as it has in
other instances, for example, [] section 667.5, subdivision (c)(12) specifying attempted
murder as one of several violent felonies, and [] section 1192.7, subdivision (c)(27)
making an attempt to commit any of the specifically listed felonies also a serious felony.”
(Id. at p. 963.)
       Finally, in People v. Reed (2005) 129 Cal.App.4th 1281, the court considered the
three-year enhancement for a prior drug conviction under section 11370.2,
subdivision (a), which applies to “[a]ny person convicted of a violation of, or of a
conspiracy to violate,” specified drug offenses. It held the statute could not be used to
enhance a sentence for an attempt to commit the enumerated offenses. “As the statute
now reads, neither a current conviction of an attempt to commit a specified crime nor a
prior conviction of an attempt to commit a specified crime supports an enhancement
under section 11370.2, subdivision (a). „If the Legislature had intended to include
attempts in the enhancement provisions, it would have specifically stated the


                                              5
enhancement applie[d] to the “commission or attempted commission” of specific
crimes.‟ ” (Id. at p. 1285.)
       In each of the above cases, the court was faced with a statute authorizing an
additional penalty or collateral consequence for certain enumerated offenses. The only
offenses specified were completed crimes, and no other language in the statutes at issue
suggested the provisions applied to attempts to commit those specified crimes. By
contrast, section 213, subdivision (a)(1)(A), sets forth the sentencing range for a
completed first degree residential robbery when committed in concert, and section 664,
subdivision (a), provides the punishment for an attempted felony is “one-half the term of
imprisonment prescribed upon a conviction of the offense attempted.” In the case of an
attempted first degree residential robbery where an in-concert allegation has been found
true, this would be one-half the term of imprisonment prescribed in section 213,
subdivision (a)(1)(A). Nothing in in section 213, subdivision (a)(1)(A), suggests
otherwise.
       Using the elevated sentencing range of section 213, subdivision (a)(1)(A), to
calculate the penalty for attempted first degree robbery in concert is also consistent with
the legislative intent behind that provision. The language concerning in concert robberies
was added to section 213 in 1994, by Assembly Bill No. 779 (Legis. Counsel‟s Dig.,
Assem. Bill No. 779 (1993–1994 Reg. Sess.) § 1), and originally contemplated the
creation of a new crime of home invasion (Legis. Counsel‟s Dig., Assem. Bill No. 779
(1993–1994 Reg. Sess.) as introduced Feb 23, 1994; Jonathan T., supra, 166 Cal.App.4th
at p. 481). Senate amendments to the bill deleted the references to a new crime of home
invasion and instead created “an aggravated form of first degree robbery consisting of a
robbery committed in [] an inhabited dwelling by three or more persons acting in
concert” that was “punishable by three, six or nine years.” (Sen. Rules Com., Off. of
Senate Floor Analysis, Rep. on Assem. Bill No. 779 (1993–1994 Reg. Sess.) August 9,
1994, pp. 1–2.) A legislative analysis of the provision noted that under previous law,
attempted robberies of both the first and second degree had been punishable by a prison
sentence of 16 months, two years or three years, and that the new legislation


                                             6
“[p]rovide[d] that attempted robbery of any kind of the first degree is punishable under
the general attempt statute so that the normal rules on attempt penalties would apply. By
virtue of this, the penalty for attempted first degree robbery is as follows: [¶] a) In the
case of an attempt to commit the aggravated form of first degree robbery, the penalty is
18 months, three years or four and one half years. [¶] b) In the case of an attempt to
commit any other form of first degree robbery, the penalty is 18 months, two years or
three years. (Sen. Rules Com., Off. of Senate Floor Analysis, Bill analysis on Assem.
Bill No. 779 (1993–1994 Reg. Sess.) June 23, 1994, pp. 1–2, emphasis added.) This is
consistent with the purpose underlying the bill, namely, “to deter home invasion style
robberies.” (Sen. Rules Com., Off. of Senate Floor Analysis, Rep. on Assem. Bill No.
779 (1993-1994 Reg. Sess.) August 9, 1994, p. 2.)
       The Legislature‟s understanding that the sentencing range for attempted robbery in
concert would be half the sentencing range for robbery in concert, pursuant to section
664, was also made explicit by the Legislative Counsel: “This bill increase[s] the penalty
for first degree robbery to imprisonment in state prison for 3, 6 or 9 years for offenses
where the defendant, voluntarily acting in concert with two or more persons, commits the
robbery within an inhabited dwelling house . . . and would provide that attempted first
degree robbery is punishable by imprisonment in state prison for one-half the specified
term, pursuant to PC § 664. [¶] Increasing the penalty for first degree robbery of an
inhabited dwelling, as specified, and providing that attempted first degree robbery is
subject to the provisions of PC § 664, could result in some persons serving additional
time in state prison.” (Cal. Youth and Adult Correctional Agency, Enrolled Bill Rep. on
Assem. Bill No. 779 (1993–1994 Reg. Sess.) prepared for Governor Wilson (Sept. 1,
1994) pp. 1–2.); see also 26 Pac. L. J. 450, 1994–1995 [under amended version of § 213,
“if a defendant, voluntarily acting in concert with two or more persons, attempts to
commit first degree robbery, the act will be punished by imprisonment in the state prison
for a term of eighteen months, three years or four and one-half years” under §664, and
“[i]n all other cases of attempted first degree robbery, the penalty will be imprisonment in
the state prison for eighteen months, two years, or three years”].)


                                              7
                                             II.
                                    Failure to Instruct
       As to each of the four attempted robbery counts, the amended information alleged
“pursuant to Penal Code section 213(a)(1)(A) . . . the above offense was committed by
the defendant(s) who voluntarily acted in concert and entered a structure described in that
section.” The jury found these allegations to be true in its verdict on the attempted
robbery counts. Appellant argues these findings must be stricken because the court did
not instruct the jury on the elements of the in-concert allegations in connection with the
attempted robbery counts. We disagree.
       When assessing a claim of instructional error, we view the jury instructions as a
whole and assume the jurors to be intelligent persons capable of understanding and
correlating the instructions given. (People v. Richardson (2008) 43 Cal.4th 959, 1028;
People v. Young (2005) 34 Cal.4th 1149, 1202.) We apply an independent or de novo
standard of review to assess whether the jury instructions correctly state the law. (People
v. Posey (2004) 32 Cal.4th 193, 218.)
       The trial court fully instructed the jury on the elements of robbery and attempted
robbery. It additionally gave CALCRIM No. 1601, which provided: “The defendants are
charged in Counts 4 and 6 with robbery by acting in concert with each other and with
another person in violation of Penal Code section 213(a)(1)(A). [¶] To prove that a
defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
personally committed or aided and abetted robbery; [¶] 2. When he did so, the defendant
voluntarily acted with two or more other people who also committed or aided and abetted
the commission of a robbery; [¶] AND [¶] 3. The robbery was committed in an inhabited
dwelling. [¶] A dwelling is inhabited if someone lives there and either is present or has
left but intends to return. [¶] To decide whether the defendants committed robbery, please
refer to the separate instructions that I have given [] you on that crime. To decide
whether the defendant aided and abetted robbery, please refer to the separate instructions
that I have given you on aiding and abetting. You must apply those instructions when
you decide whether the People have proved robbery in concert. [¶] To prove the crime of


                                             8
robbery in concert, the People do not have to prove a prearranged plan or scheme to
commit robbery.”
        CALCRIM No. 1601 correctly stated the elements of the in concert allegations.
Thus, while the jury was not specifically instructed on the elements of the in-concert
allegations in connection with the attempted robbery counts, it was correctly instructed
on those elements in connection with the robbery counts. “ „ “[T]he fact that the
necessary elements of a jury charge are to be found in two instructions rather than in one
instruction does not, in itself, make the charge prejudicial.” [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.” [Citation.]‟ [Citation.] ” (People v. Hernandez (2010)
181 Cal.App.4th 1494, 1499.) Viewing the instructions as a whole, there is no likelihood
the jurors were confused regarding the elements of the in-concert allegations attached to
the attempted robbery counts.
        Even if the trial court erred in failing to explicitly link the instruction defining the
in-concert allegations to the attempted robbery counts, reversal of the true findings
attached to those counts is not required. Instructions that misstate or omit an essential
element of an offense do not require reversal if the error was harmless beyond a
reasonable doubt under the standard set forth in Chapman v. California (1967) 386 U.S.
18. (People v. Mil (2012) 53 Cal.4th 400, 409; People v. Flood (1998) 18 Cal.4th 470,
491 (Flood); People v. Larsen (2012) 205 Cal.App.4th 810, 829.) The jury specifically
found appellant acted in concert in committing the robberies, having been properly
instructed with CALCRIM No. 1601. Given that all the crimes were committed during a
single home invasion, there would be no basis for differentiating between the completed
robberies and the attempted robberies in this regard. Because the factual question posed
by the omitted instruction was necessarily resolved adversely to appellant under another,
properly given instruction, any error is harmless beyond a reasonable doubt. (Flood, at p.
485.)




                                                9
                                             III.
                                Firearm Use Enhancements
       Appellant contends the abstract of judgment erroneously reflects that firearm
enhancements were imposed pursuant to sections 12022.5, subdivision (a), and 12022.53,
subdivision (b), even though the terms were properly attributable only to section
12022.53, subdivision (b). The People agree and suggest a remand for resentencing. We
will order the abstract of judgment modified, but conclude a remand for a new sentencing
hearing is not required.
       As to the two robbery counts (counts 4 and 6) and the four attempted robbery
counts (counts 1–3, 5), the jury returned true findings that appellant had personally used a
firearm within the meaning of sections 12022.5, subdivision (a)(1), and 12022.53,
subdivision (b). The court imposed a 10-year enhancement under section 12022.53,
subdivision (b), as to the robbery in count 4, which was declared the principal term, and
imposed consecutive sentences of three years four months (one-third of the 10-year term
under section 12022.53, subdivision (b)) as to the remaining counts at issue. At the
conclusion of the sentencing hearing, the court stated, “[L]et me ask a technical
sentencing question. I don‟t think I have to impose, but on a number of the weapons
enhancement[s] they were found in the alternative, there was [the] 12022.53 and the .5,
so we just went with the 10 . . . . [¶] I didn‟t need to impose and stay the alternative
enhancement, do I?” When counsel hesitated, the court continued, “[Y]ou can‟t impose
multiple enhancement[s] for the same act anyway under those circumstances, but I would
find that in the alternative clearly either 654, if not I would impose, concurrently impose
a midterm of 4 [years] on each of them, but I think that‟s all academic.” The abstract of
judgment reflects that the firearm enhancements were imposed pursuant to both section
12022.5, subdivision (a), and section 12022.53, subdivision (b), although the court did
not impose the enhancement under both provisions.
       Section 12022.5, subdivision (a), requires a sentence enhancement of three, four or
ten years for “any person who personally uses a firearm in the commission of a felony or
attempted felony.” Section 12022.53, subdivision (b), provides for a 10-year


                                             10
enhancement for any person who personally uses a firearm in the commission of certain
more serious felonies including robbery and attempted robbery. (§ 12022.53, subd. (a)(4)
& (18).) When an enhancement under 12022.53 has been 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.”
(§ 12022.53, subd. (j).) “An enhancement involving a firearm specified in
Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement
imposed pursuant to” section 12022.53. (§ 12022.53, subd. (f).)
       When firearm use enhancements are found true under both sections 12022.5,
subdivision (a), and 12022.53, the trial court must impose the enhancement under section
12022.53 and then impose and stay the enhancement under section 12022.5,
subdivision (a). (People v. Gonzalez (2008) 43 Cal.4th 1118, 1122–1123, 1130.) The
trial court in this case imposed the enhancements under section 12022.53, subdivision
(b), but did not impose and stay the enhancements under section 12022.5, subdivision (a),
as it technically should have.
       This leaves the question of the length of the terms to be imposed and stayed. A
trial court has the discretion to select from the range of terms under section 12022.5,
subdivision (a), and the People suggest a remand so the court can exercise this discretion.
(People v. Hall (1994) 8 Cal.4th 950, 958–959 [discussing factors court may consider
when selecting term on § 12022.5 enhancement].) However, a new sentencing hearing
“would mean pulling defendant out of his prison programming and busing him to [Solano
County] for a new sentencing hearing that will not change his actual prison time. The
futility and expense of such a course militates against it.” (People v. Alford (2010) 180
Cal.App.4th 1463, 1473.) Remand is unnecessary when the record clearly indicates how
the trial court would have exercised its discretion. (See ibid.; People v. Gutierrez (1996)
48 Cal.App.4th 1894, 1896.) In this case, the trial court indicated it would impose
concurrent four-year middle terms on each section 12022.5 enhancement if it were
required to do so, demonstrating it believed the middle term to be appropriate.


                                             11
       The People argue a remand is more appropriate because the court imposed the 10-
year upper term for the section 12022.5, subdivision (a), enhancement attached to the
attempted robbery conviction in count 1, suggesting it might have believed a longer term
was appropriate. We do not agree. When imposing sentence on count 1, the court did
state, “a third of the midterm is 1 year, a third of the enhancement under 12022.5 is 3
years 4 months.” But the court‟s comments at the end of the sentencing hearing show it
intended to impose all of the firearm enhancements pursuant to section 12022.53,
subdivision (b), and not under section 12022.5, subdivision (a). The court‟s reference to
section 12022.5 in connection with count 1 appears to have been a misstatement.
       We will therefore modify the judgment to impose and stay a four-year
enhancement under section 12022.5, subdivision (a), for the robbery conviction in
count 4, which was designated the principal count. As to the remaining robbery and
attempted robbery counts (counts 1–3, 5–6), the section 12022.5, subdivision (a),
enhancements must be one-third of the four-year middle term because they are attached
to consecutive, subordinate counts. (See People v. Hill (2004) 119 Cal.App.4th 85, 88–
92.)
                                      DISPOSITION
       The judgment is modified to impose and stay the four-year middle term for the
section 12022.5, subdivision (a), enhancement attached to the robbery conviction in count
4, and to impose and stay a one-year, four month enhancement under section 12022.5,
subdivision (a) (one-third the middle term) on the robbery conviction in count six and the
attempted robbery convictions in counts 1, 2, 3 and 5. The abstract of judgment shall be
modified accordingly and a copy forwarded to the Department of Corrections and
Rehabilitation. As so modified, the judgment is affirmed.




                                            12
                           NEEDHAM, J.




We concur.




SIMONS, ACTING P.J.




BRUINIERS, J.




(A145868)



                      13
Superior Court of Solano County, No. VCP216163, Daniel Healy, Judge


Robert L. Angres under appointment for the Court of Appeal for Defendant and
Appellant.


Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit and Victoria Ratnikova,
Deputy Attorneys General, for Plaintiff and Respondent.




                                          14
