Filed 6/25/15 P. v. Hernandez CA4/2



                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        FOURTH APPELLATE DISTRICT

                                                      DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E060903

v.                                                                        (Super.Ct.No. INF1102920)

CARLOS JORGE HERNANDEZ,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Richard A. Erwood,

Judge. Affirmed with directions.

         Marilee Marshall, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine

Gutierrez and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and

Respondent.


                                                              1
       Defendant Carlos Jorge Hernandez appeals from his judgment of conviction by

guilty plea, contending the trial court erred by denying his motions to continue trial.

According to defendant, his attorney did not fully prepare for trial based on the belief that

a plea bargain was imminent and, therefore, the denial of his continuance motions on the

date of trial violated his rights to due process and to the effective assistance of counsel.

Defendant also argues the trial court abused its discretion during sentencing by imposing

an upper term sentence on his robbery conviction and by not striking the personal use of a

firearm allegation and/or the gang enhancement. Finally, defendant contends the trial

court erred by imposing a five-year strike enhancement and a one-year prison prior

enhancement that arose from the same prior offense.

       We conclude defendant’s challenges to the denial of his continuance motions are

not cognizable on appeal from a guilty plea, and that framing the issues in the guise of

constitutional challenges does not make them cognizable. Even if defendant’s due

process challenge is cognizable, we conclude it fails on the merits because the People did

not actually make a plea offer and defendant did not detrimentally rely on one. With

respect to defendant’s claim of sentencing error, we find the trial court did not abuse its

discretion by imposing an upper term sentence for defendant’s robbery conviction and by

not striking one or both of the related sentence enhancements. However, the People

concede, and we agree, that the trial court erred by imposing both a five-year strike

enhancement and a one-year prison prior enhancement that arose from the same prior

offense, so we order the one-year enhancement to be stricken. Therefore, we affirm the

judgment as modified.

                                              2
                                              I.

                                          FACTS1

       At approximately 1:40 a.m., on December 23, 2011, Jonathan Romero left his

friend’s home in Indio and started to walk home. As he walked, Romero heard someone

whistle and yell, “Hey.” Romero turned around and saw between six and eight people

behind him. He ignored the group and continued to walk home. Two men then

approached Romero. One of the men asked Romero for his cell phone and, when

Romero refused, the man punched him in the face and grabbed his cell phone. The

second man, who Romero recognized as defendant, pointed a revolver at Romero’s head

and said, “Give me everything you got.” Defendant also hit Romero in the chin with the

revolver, leaving a cut on Romero’s cheek. Romero declined to be taken to the hospital

by paramedics.

       When defendant was arrested five days later, an investigator searched defendant’s

pants pockets and found a knotted-up sock containing 38 .22-caliber bullets. During a

search of defendant’s home, officers found a .22-caliber handgun in his bedroom closet.

       An investigator opined that, on the date of the robbery and assault on Romero,

defendant and his accomplice were active members of the Jackson Terrace street gang,

and that they committed their crimes for the benefit of, at the direction of, or in

association with the Jackson Terrace street gang.


       1 Because defendant pleaded guilty before trial, we derive the basic facts of the
underlying crimes from the transcript of defendant’s preliminary examination.



                                              3
        A magistrate judge held defendant over for trial. In an amended information, the

People charged defendant with robbery (Pen. Code,2 § 211, count 1), assault with a

firearm (§ 245, subd. (a)(2), count 2), street terrorism (§ 186.22, subd. (a), count 3),

unlawful possession of a firearm (former § 12021, subd. (a)(1), count 4), and unlawful

possession of ammunition (former § 12316, subd. (b)(1), count 5). The People alleged

defendant personally used a firearm during the commission of counts 1 and 2

(§§ 12022.5, subd. (a), 1192.7, subd. (c)(8), 12022.53, subds. (b), (e)(1)), and that he

committed counts 1 and 2 for the benefit of, at the direction of, and in association with a

criminal street gang (§ 186.22, subd. (b)(1)(B), (C)). Finally, the People alleged that in

2009 defendant was sentenced to a gang enhancement under section 186.22,

subdivision (b), which is a serious felony (§ 667, subd. (a)) and a serious and violent

felony (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)), and that in the same 2009 case

defendant was convicted of assault (§ 245, subd. (a)(1)), and served a prison term

(§ 667.5, subd. (b)).

        On the day of trial, defense counsel indicated defendant wanted to plead guilty to

the amended information and requested an indicated sentence. The trial court declined to

give an indicated sentence. The following day, defendant pleaded guilty to all five

counts, and admitted all enhancements and special allegations in the amended

information.


        2   Unless otherwise indicated, all additional statutory references are to the Penal
Code.



                                                4
       Thereafter, the trial court sentenced defendant to the upper term of five years on

count 1, doubled pursuant to the three strikes law, for a term of 10 years in state prison.

The court deemed count 1 to be the principal term. For the enhancements alleged in

relation to count 1, the court sentenced defendant to 10 years for the personal use of a

firearm allegation and to 10 years for the gang enhancement, both to be served

consecutively to the sentence on count 1. The trial court sentenced defendant to the

middle term of three years for count 2, doubled pursuant to the three strikes law, but

stayed the sentence pursuant to section 654. The court imposed a four-year sentence for

the personal use enhancement and a five-year sentence for the gang allegation alleged in

relation to count 2, but stayed both pursuant to section 654. For counts 3 through 5, the

trial court sentenced defendant to the middle term of two years, doubled pursuant to the

three strikes law, but stayed the sentences pursuant to section 654. Finally, the trial court

sentenced defendant to five years for the serious felony prior, and to one year for the

prison prior, for an aggregate sentence of 36 years in state prison.

       Defendant obtained a certificate of probable cause from the superior court and

timely filed a notice of appeal.




                                              5
                                              II.

                                       DISCUSSION

       A.     Defendant’s Challenges to the Denial of His Continuance Motions Are Not

Cognizable on Appeal From a Guilty Plea, and His Due Process Claim Lacks Merit.

       Defendant argues his trial attorney detrimentally relied on the assurances of the

People that a plea bargain was imminent and only minimally prepared for trial and,

therefore, denial of his last motions to continue trial violated his due process rights.

Defendant also argues that, because his attorney only minimally prepared for trial in

anticipation of a plea deal, denial of a continuance to more fully prepare for trial denied

him the effective assistance of counsel.

       Because he pleaded guilty, defendant may only address certain limited issues on

appeal, such as questions about the legality of the plea proceedings and the constitutional

validity of his plea. Denial of defendant’s continuance motions is not cognizable in this

appeal, and defendant’s tenuous Sixth Amendment argument does not bring his claim

within the exception for challenges to guilty pleas that are entered as a result of

ineffective assistance of counsel. Even if defendant’s due process claim is cognizable, it

fails on the merits. Defendant did not detrimentally rely on a plea offer, so he suffered no

due process violation when the trial court denied his continuance motion.

              1.     Additional Background.

       On January 11, 2012, the superior court appointed counsel to represent defendant.

Before the preliminary examination took place on February 17, 2012, the court granted

one unopposed motion to continue from defendant and one stipulated motion to continue.

                                              6
Over the next year and nine months, the trial court granted an additional 21 motions to

continue filed by defendant and two more stipulated motions to continue. The People

only opposed one of defendant’s first 22 motions to continue.

       The parties announced ready for trial on November 26, 2013, more than seven

months after defendant was arraigned on the first amended information. Despite

announcing ready for trial, on December 2, 2013, defendant’s attorney once again moved

to continue trial. The master calendar judge denied defendant’s 23d motion to continue,

and ordered the parties to appear for trial that same day. When he appeared in the trial

department, defendant’s attorney again moved to continue the trial, contending he had

only performed a “minimal amount” of preparation for trial because his “goal was to

settle the case,” and that he needed additional time to conduct “further investigation and

further preparation for trial.” The People opposed any additional continuances, arguing

almost two years had passed since the alleged crimes and that defense counsel “had

adequate time to prepare for this trial.” The trial judge noted the case had already been

continued a total of 25 times, and that the master calendar judge had already denied

defendant’s motion earlier that day. Therefore, the trial judge found “insufficient cause”

to continue the trial, and denied defendant’s 24th motion to continue.

              2.     Analysis.

       “‘“It is settled that the right of appeal is statutory and that a judgment or order is

not appealable unless expressly made so by statute.”’ [Citations.]” (People v. Mena

(2012) 54 Cal.4th 146, 152.) As applicable here, a defendant has the right to appeal

“[f]rom a final judgment of conviction except as provided in . . . Section 1237.5.”

                                               7
(§ 1237, subd. (a).) Section 1237.5 provides that a defendant may not appeal from a

judgment of conviction that is based on a guilty plea or plea of nolo contendere, unless

the defendant obtains from the superior court a certificate of probable cause “showing

reasonable constitutional, jurisdictional, or other grounds going to the legality of the

proceedings.” (§ 1237.5, subds. (a), (b); see also Cal. Rules of Court, rule 8.304(b).)

       “[W]hen a defendant pleads guilty or no contest and is convicted without a trial,

only limited issues are cognizable on appeal. A guilty plea admits every element of the

charged offense and constitutes a conviction [citations], and consequently issues that

concern the determination of guilt or innocence are not cognizable. [Citations.] Instead,

appellate review is limited to issues that concern the ‘jurisdiction of the court or the

legality of the proceedings, including the constitutional validity of the plea.’ [Citations.]”

(In re Chavez (2003) 30 Cal.4th 643, 649.) Issues relating to the constitutional validity of

the plea proceedings and guilty plea that are cognizable on appeal include ineffective

waiver of rights and the ineffective assistance of counsel. (People v. Ribero (1971)

4 Cal.3d 55, 63; People v. Moore (2003) 105 Cal.App.4th 94, 99.)

       Our Supreme Court has held that alleged error in the denial of a continuance

motion is “waived by the plea of guilty.” (People v. Kaanehe (1977) 19 Cal.3d 1, 8

(Kaanehe); accord, People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.) “Other than

search and seizure issues which are specifically made reviewable by section 1538.5,

subdivision (m), all errors arising prior to entry of a guilty plea are waived, except those

which question the jurisdiction or legality of the proceedings resulting in the plea.

[Citation.] Any error in the refusal to postpone the trial here clearly does not rise to such

                                              8
proportions. Obtaining a certificate of probable cause does not make cognizable those

issues which have been waived by a plea of guilty. [Citation.] . . . [S]ection 1237.5 does

not affect the grounds upon which appeal may be taken following a guilty plea; it merely

establishes a procedure for screening out frivolous claims among these issues which have

not been waived. [Citations.]” (Kaanehe, at p. 9, fn. omitted.)

       Presenting the claim in the guise of a Sixth Amendment violation does not make

denial of defendant’s continuance motion cognizable. The defendant in Kaanehe argued

his “claim was not waived because the refusal to postpone the trial denied him effective

assistance of counsel, one of the errors not waived by a plea of guilty. [Citation.]”

(Kaanehe, supra, 19 Cal.3d at p. 9, fn. 5.) The Supreme Court rejected that argument

“because defendant fail[ed] to suggest wherein the performance of his counsel was

inadequate.” (Ibid.)

       Kaanehe is dispositive here. Defendant does not argue his attorney rendered

ineffective assistance of counsel by giving him bad advice about pleading guilty, for

instance, by not investigating possible defenses or by advising him to plead guilty when

the prosecution’s evidence was extremely weak. Nor does defendant argue his attorney

failed to inform him of the rights he was waiving by pleading guilty and of the collateral

consequences of a guilty plea, or that counsel gave him erroneous information about the

maximum sentence he faced by pleading guilty. Instead, defendant makes the rather

tenuous argument that the master calendar and trial judges deprived him of the effective

assistance of counsel by denying his attorney an additional continuance to more fully

prepare for trial. Because defendant does not assert that his attorney actually rendered

                                             9
ineffective assistance of counsel in relation to his guilty plea, all that is left is his

challenge to the orders denying his 23d and 24th motions to continue, which is not

cognizable in this appeal.

       Apparently, defendant’s due process claim is also waived. (Cf. People v. Haydon

(1979) 95 Cal.App.3d 413, 418-419 [holding defendant’s guilty plea waived due process

challenge to pretrial delay between arrest and filing of complaint].) But even if

defendant’s due process claim is cognizable on appeal, it fails on the merits. Defendant

cites no portion of the record which demonstrates the People actually made him a plea

offer. At most, defendant contends the People expressed openness to a plea if he and his

codefendant both pleaded guilty, and that, even after his codefendant pleaded guilty, the

People still held out the possibility of a plea bargain for defendant.

       True, as late as November 19, 2013, defendant’s attorney told the trial court that a

plea deal might be in the offing, and the People did not contradict him. But a mere week

later, when the People announced they were ready for trial and asked for a trial date of

December 2, 2013, defendant’s attorney told the court, “That is agreeable, Your Honor.”

Announcing ready for trial is no empty formality. “[T]he trial court is entitled to insist

that when a party announces ‘ready’ for trial, that it actually means ready to proceed.”

(People v. Allan (1996) 49 Cal.App.4th 1507, 1518.) There is no indication in the record

that, after announcing ready for trial, the People were still open to a plea deal. To the

contrary, on the date of trial, the prosecutor informed the trial judge that “going back the

past few weeks,” the People told defense counsel they were ready for trial and they would

not be open to a plea bargain. If defense counsel believed he needed additional time

                                                10
either to finalize a plea bargain or to more fully prepare for trial, he should not have

announced ready for trial when he did. (See Williams v. Superior Court (1996) 46

Cal.App.4th 320, 332 [“The consequences of not being prepared for trial should inspire

counsel to give the court an honest assessment of counsel’s ability to timely try the

case”].)

       Even if the People had held out the possibility of a plea agreement up to the trial

date, defendant’s argument would still fail. Published decisions on the enforceability of a

withdrawn plea offer are analogous. The appellate courts of this state have adopted the

majority rule that a prosecutor may withdraw a plea offer any time before the defendant

actually pleads guilty or detrimentally relies on the offer. (People v. Trejo (2011) 199

Cal.App.4th 646, 656 (Trejo); People v. Cantu (2010) 183 Cal.App.4th 604, 607 [Fourth

Dist., Div. Two]; People v. McClaurin (2006) 137 Cal.App.4th 241, 248-249; In re

Kenneth H. (2000) 80 Cal.App.4th 143, 148; People v. Rhoden (1999) 75 Cal.App.4th

1346, 1354 (Rhoden).) “[T]he prosecutor [i]s not obligated to make an offer; there is no

constitutional right to a plea bargain. [Citation.] Moreover, plea bargaining is governed

by principles of contract law [citation], and under contract law, an offer may be revoked

by the offeror any time prior to acceptance. [Citation.] Thus, a prosecutor may withdraw

from a plea bargain, or revoke or withdraw the offer, before the defendant pleads guilty

or otherwise detrimentally relies on the bargain. [Citations.]” (Trejo, at pp. 655-656.)




                                             11
       “‘A defendant relies upon a [prosecutor’s] plea offer by taking some substantial

step or accepting serious risk of an adverse result following acceptance of the plea offer.

[Citation.] Detrimental reliance may be demonstrated where the defendant performed

some part of the bargain. [Citation.] For example, a defendant who provides beneficial

information to law enforcement can be said to have relied to his detriment. [Citation.]

Reliance may not be shown “by the mere passage of time.” [Citation.] Also, it may not

be shown where the defendant stopped preparing his defense, absent a showing of

specific prejudice. [Citation.] Nor may detrimental reliance be shown by the prospect of

a longer sentence. [Citation.]’” (Rhoden, supra, 75 Cal.App.4th at p. 1355, quoting Reed

v. Becka (S.C. Ct.App. 1999) 511 S.E.2d 396, 403, italics added by Rhoden.)

       Just as a defendant who has not detrimentally relied on a plea bargain may not

enforce a withdrawn plea offer, defendant here cannot show that denial of his

continuance motion violated his due process rights because he did not detrimentally rely

on the possibility of a plea bargain. Defendant’s sole claim of detrimental reliance is the

vague assertion that his attorney did not fully prepare for trial because he believed a plea

bargain was imminent. But, as in the context of specific performance of a plea offer,

defendant must show that he suffered some specific prejudice from his attorney not more

fully preparing for trial in anticipation of obtaining a favorable plea bargain. (Rhoden,

supra, 75 Cal.App.4th at p. 1355.) Absent a more specific showing from defendant, we

find no due process violation.




                                             12
      B.     The Trial Court Did Not Abuse Its Discretion by Imposing an Upper Term

Sentence for Defendant’s Robbery Conviction and by Not Striking the Personal Use of a

Firearm Allegation or Gang Enhancement.

      Defendant argues the trial court abused its discretion by sentencing him to the

upper term of five years for his robbery conviction. He contends there were mitigating

circumstances, which warranted imposition of a lesser3 term sentence. Defendant also

contends the circumstances of the crime, while serious, were not grave enough to justify

the trial court imposing a 10-year gang enhancement sentence and a 10-year sentence for

the personal use of a firearm allegation.4 We find no abuse of discretion.

             1.     Additional Background.

      At sentencing, the trial court noted defendant faced a maximum sentence of

40 years in state prison, but gave a tentative sentence of 36 years. Defense counsel asked

the court to impose the minimum sentence possible, “whatever that figure is.” Although

counsel acknowledged the charges to which defendant pleaded guilty were “substantial,”

      3  Whereas at sentencing defendant’s attorney requested the trial court impose “the
minimum term prescribed by law,” on appeal defendant does not specify what term he
believes would have been appropriate—the minimum term of two years or the middle
term of three years, either of which would have to be doubled under the three strikes law.
(§§ 211, 213, subd. (a)(2), 667, subd. (e)(1), 1170.12, subd. (c)(1).)

      4  Defendant’s argument regarding the sentence enhancements is rather vague. He
contends “the trial court abused its discretion in sentencing [him] to the upper term
and/or refusing to strike either the gang or gun enhancements as requested.” (Italics
added.) He does not say whether he believes the trial court would have been correct in
imposing the upper term for the robbery conviction and only one 10-year sentence
enhancement, or if the trial court would have been correct in imposing the middle or
lower term and imposing one or both 10-year sentence enhancements.



                                            13
he argued for leniency because the victim was not seriously injured and refused medical

attention; defendant did not steal anything from the victim; and it was the codefendant

who stole the victim’s cell phone and punched him in the face. “I’m not minimizing the

act, per se, Your Honor, but [I] wanted the court to know that there was apparently no

great bodily injury, no great bodily harm.” Counsel also argued that defendant’s youth

when he committed his crimes, his newly developed family support, his expressions of

remorse, his cooperation with the probation department, and his willingness to take

responsibility for his acts, mitigated against a maximum sentence. Finally, counsel

argued defendant should not receive a disproportionate sentence to the one imposed on

his codefendant merely because defendant was unable to secure a plea bargain.

       The People asked for a sentence of 42 years four months. In response to defense

counsel’s arguments, the prosecutor argued the victim was completely innocent and that

defendant did, in fact, strike the victim. The prosecutor added, “[Defendant] not only

demanded money but pistol-whipped [the victim].”

       The trial judge explained he was imposing an upper term sentence for defendant’s

robbery conviction because “the crime involved great violence and the threat of bodily

harm; the defendant was a leader of the group who committed this crime; the defendant

has engaged in a pattern of violent conduct which indicates [he is] a danger to society;

[and] his prior convictions are numerous and are increasing in seriousness.” When the

court stated it was imposing a 10-year gang enhancement sentence and a 10-year

sentence for the personal use of a firearm allegation, to be served consecutively to the

sentence for count 1, defense counsel argued the court had discretion under section 1385

                                            14
to strike “certain enhancements or perhaps strike the punishment,” and asked the court to

consider striking one or both of the enhancements or the punishment for the

enhancements. The court addressed the request indirectly, and indicated it was going to

stay the punishment for counts 2 through 5 and stay the enhancements for count 2. The

court stated, “[S]o while the sentence is a large number of years, I’m staying a lot of the

punishment on those other counts.”

              2.     Analysis.

       The trial court’s decision to impose a particular sentence is reviewed for abuse of

discretion. (People v. Jones (2009) 178 Cal.App.4th 853, 860-861 [Fourth Dist.,

Div. Two].) “In reviewing for abuse of discretion, we are guided by two fundamental

precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that

the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a

showing, the trial court is presumed to have acted to achieve legitimate sentencing

objectives, and its discretionary determination to impose a particular sentence will not be

set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely

because reasonable people might disagree. ‘An appellate tribunal is neither authorized

nor warranted in substituting its judgment for the judgment of the trial judge.’”’

[Citation.] Taken together, these precepts establish that a trial court does not abuse its

discretion unless its decision is so irrational or arbitrary that no reasonable person could

agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)




                                             15
          Under the determinate sentencing law (DSL), the trial court has the discretion to

determine, based on mitigating and aggravating circumstances, which sentence within the

statutory range “best serves the interests of justice.” (§ 1170, subd. (b); see Cal. Rules of

Court, rules 4.405(4), (5), 4.420(a), (b).) The court may also consider mitigating factors

when deciding whether to strike a sentence enhancement “when the court has discretion

to do so.” (Cal. Rules of Court, rule 4.405(5).)5

          “An aggravating circumstance is a fact that makes the offense ‘distinctively worse

than the ordinary.’ [Citations.]” (People v. Black (2007) 41 Cal.4th 799, 817.) “Under

the DSL, a trial court is free to base an upper term sentence upon any aggravating

circumstance that the court deems significant, subject to specific prohibitions.

[Citations.] The court’s discretion to identify aggravating circumstances is otherwise

limited only by the requirement that they be ‘reasonably related to the decision being

made.’ (Cal. Rules of Court, rule 4.408(a).)” (People v. Sandoval (2007) 41 Cal.4th 825,

848.) A single aggravating factor is sufficient to impose an upper term sentence. (People

v. Osband (1996) 13 Cal.4th 622, 728; People v. Jones, supra, 178 Cal.App.4th at p. 863,

fn. 7.)




          5
          In their brief, the People set forth the prohibition on dual use of aggravating
factors in selecting an upper term sentence and imposing a sentence enhancement
(§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c)), but states defendant “does not
allege, nor does the record support,” the conclusion that the trial court improperly made
dual use of aggravating factors when sentencing defendant. Because defendant does not
argue improper dual use of aggravating factors, we need not discuss it further.



                                               16
       The trial court’s choice of the upper term for defendant’s robbery conviction was

patently not an abuse of discretion. In its reasons for imposing the upper term (Cal. Rules

of Court, rules 4.406(a), (b)(4), 4.420(e)), the trial court identified specific aggravating

factors that came straight from the California Rules of Court: (i) the crime involved the

threat of great bodily harm (rule 4.421(a)(1)); (ii) defendant was a leader of the group

which assaulted the victim (rule 4.421(a)(4)); (iii) defendant engaged in a pattern of

violent conduct which indicates he was a danger to society (rule 4.421(b)(1)); and

(iv) defendant’s prior convictions and juvenile adjudications were numerous and

increasing in severity (rule 4.421(b)(2)). These aggravating factors, both individually and

cumulatively, supported the court’s sentencing choice.

       Defendant argues the record does not support the trial court’s findings in

aggravation. For example, defendant contends he was not the leader, that it was his

codefendant who struck and robbed the victim, and that the crime did not actually result

in great bodily injury. But the trial court did not conclude defendant was the leader of the

group, and the facts adduced at the preliminary examination show that, out of a larger

group, defendant was one of only two who approached and assaulted the victim, which

supports the trial court’s conclusion that defendant was certainly a leader. Moreover,

defendant’s attempt to minimize the severity of the crime fails. That the crime did not

actually result in great bodily injury to the victim is of no consequence because, by

striking the victim in the chin with a revolver, defendant’s acts certainly had the potential

to result in great bodily injury. The record amply supports the trial court’s findings in

aggravation.

                                              17
       Even if we were to agree with defendant that there were mitigating factors in this

case, and that the trial court could have used those factors to impose a middle or lower

term sentence instead of the upper term, on this record we cannot say the trial court

abused its discretion by implicitly finding the aggravating circumstances outweighed the

mitigating circumstances. As the People contend in their brief, defendant essentially

invites this court to reweigh the mitigating and aggravating circumstances, something we

may not do. (People v. Delgado (2013) 214 Cal.App.4th 914, 919 [“We will not reweigh

the valid factors that bore upon the decision below”].)

       Finally, we find no error with respect to the imposition of the sentence for the

gang enhancement and the personal use of a firearm allegation. The trial court lacked

any authority to strike the 10-year6 sentence enhancement for the personal use of a

firearm allegation, so imposition of the sentence for that allegation was clearly not an

abuse of discretion. (§ 12022.5, subd. (c); see People v. Herrera (1998) 67 Cal.App.4th

987, 988-989, citing People v. Thomas (1992) 4 Cal.4th 206, 213–214 [“It is well

established that a trial court has no discretion under Penal Code section 1385 to strike the

punishment for a personal firearm use enhancement”].) Because robbery is deemed to be

a violent felony (§ 667.5, subd. (c)(9)), defendant was subject to a 10-year sentence for

the gang enhancement in count 1. (§ 186.22, subd. (b)(1)(C).) Although the trial court


       6  Section 12022.5, subdivision (a), provides for a sentence enhancement of three,
four, or 10 years for the personal use of a firearm during the commission of a felony, but
defendant offers no reasoned argument why the trial court’s selection of the upper term
was an abuse of discretion.



                                             18
had the discretion to strike the punishment for the gang enhancement if “the interests of

justice would be best served” (§ 186.22, subd. (g)), defendant has not demonstrated how

the interests of justice would have warranted the court in departing from the general rule

that imposition of a gang enhancement is mandatory. (People v. Vega (2013) 214

Cal.App.4th 1387, 1396 [“The statutory language is clear—absent a lawful reason not to

do so . . . , the gang enhancement must be imposed”].)

       In sum, we conclude the trial court did not abuse its discretion when sentencing

defendant to the upper term for his robbery conviction, and by imposing a 10-year

sentence enhancement for the personal use of a firearm allegation and a 10-year sentence

for the gang enhancement.

       C.     The Trial Court Erred by Imposing a Five-year Sentence Enhancement

Under Section 667, Subdivision (a), and a One-year Sentence Enhancement Under

Section 667.5, Subdivision (b), for the Same Prior Offense.

       Relying on People v. Jones (1993) 5 Cal.4th 1142, defendant contends the trial

court erred by imposing a five-year sentence enhancement under section 667,

subdivision (a), for defendant’s admission that in 2009 he was sentenced to a gang

enhancement, and by imposing a one-year enhancement under section 667.5,

subdivision (b), for defendant’s admission that he suffered a prison prior for the 2009

assault conviction from which the gang enhancement arose. The People concede the

error. We agree with defendant.




                                            19
       “In [People v. Jones, supra, 5 Cal.4th 1142], the trial court had imposed both a

five-year prior serious felony enhancement (Pen. Code, § 667, subd. (a)) and a one-year

prior prison term enhancement (Pen. Code, § 667.5, subd. (b)), based on the same prior

conviction. (People v. Jones, supra, 5 Cal.4th at p. 1145.) The Supreme Court held this

improper. It relied on the provision of Penal Code section 667 that stated: ‘. . . “This

section shall not be applied when the punishment imposed under other provisions of law

would result in a longer term of imprisonment. . . .”’ ([People v.] Jones, at p. 1149,

quoting former Pen. Code, § 667, subd. (b); see now Pen. Code, § 667, subd. (a)(2).) It

construed this to mean ‘that when multiple statutory enhancement provisions are

available for the same prior offense, one of which is a section 667 enhancement, the

greatest enhancement, but only that one, will apply.’ ([People v.] Jones, at p. 1150.) The

court therefore remanded ‘with directions to strike the one-year enhancement . . . under

subdivision (b) of section 667.5 . . . .’ (Id. at p. 1153.)” (People v. Lopez (2004) 119

Cal.App.4th 355, 363-364 [Fourth Dist., Div. Two].)

       Because defendant’s 2009 prison term and gang enhancement arose from the same

assault, we conclude the trial court erred by imposing both a five-year sentence

enhancement under section 667, subdivision (a), and a one-year sentence enhancement

under section 667.5, subdivision (b). Therefore, we direct the superior court to strike the

one-year sentence enhancement. (See People v. Perez (2011) 195 Cal.App.4th 801, 805.)




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                                            III.

                                      DISPOSITION

       The superior court is directed to strike the one-year prison prior sentence

enhancement imposed pursuant to Penal Code section 667.5, subdivision (b), and the

clerk of the superior court is directed to prepare and forward to the Department of

Corrections and Rehabilitation an amended abstract of judgment and amended minutes of

sentencing. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                McKINSTER
                                                                                      J.
We concur:



RAMIREZ
                        P. J.



MILLER
                           J.




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