Filed 11/19/14 P. v. Mazyck CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                              B247130

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. YA082430)
         v.

EDGAR MAZYCK,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Scott T. Millington, Judge. Affirmed as modified with directions.
         Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II,
Alene M. Games and Seth McCutcheon, Deputy Attorneys General, for Plaintiff and
Respondent.

                                         ________________________________
       Edgar Mazyck (appellant), also known as Terry White, appeals the judgment after
he was convicted in count 1 of assault with a deadly weapon on Bernadine Nobbs
(Nobbs), with a finding of the infliction of great bodily injury (Pen. Code, §§ 245,
subd. (a)(1), 12022.7, subd. (a)),1 and in count 2 of forcible oral copulation with E. A.
(A.) (§ 288a, subd. (c)(2)(A)), with a finding he used a deadly and dangerous weapon
(§ 12022.3, subd. (a)) and two findings the offense fell within the provisions of the One
Strike law as appellant had used a deadly or dangerous weapon and inflicted great bodily
injury on a person other than A. in the commission of the offense (§ 667.61, subds. (a),
(b), (c)(7), (d)(6) & (e)(3) [the circumstances found by the jury supporting the imposition
of life terms of 15 years to life and 25 years to life]).
       In bifurcated proceedings, the jury made findings of the service of six prior
separate prison terms (§ 667.5, subd. (b)) and that appellant had suffered a prior serious
felony that qualified as a strike within the meaning of the Three Strikes law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)).
       At sentencing, the trial court declined to exercise its discretion to strike the prior
serious felony conviction so as to sentence appellant without the provisions of the Three
Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The trial court
sentenced appellant to an aggregate term in state prison of 77 years to life, consisting of a
doubled, determinate upper base term of four years, or eight years, for the assault in count
1, enhanced by a term of three years for the infliction of great bodily injury and by six
years for the service of the prior separate prison terms. For count 2, pursuant to the Three
Strikes and One Strike laws, it imposed a consecutive doubled, indeterminate term of 25
years to life, or 50 years to life. (§ 667.61, subds. (a), (c)(7) & (e)(6).) The trial court
then imposed a further 10-year fully consecutive determinate upper term for the finding
of use of a deadly and dangerous weapon in the commission of count 2.2

1
       All further statutory references are to the Penal Code unless otherwise designated.
2
       After his arrest and on January 24, 2012, appellant was committed pursuant to
section 1382 to the Department of Mental Health and was committed later to Patton State
Hospital. Patton State Hospital had prior experience with appellant, and the hospital
                                                2
                                     CONTENTIONS
       Appellant contends the trial court failed sua sponte to charge the jury as to lesser
included offenses to the charge of forcible oral copulation. We find error in the failure to
charge on lesser included offenses as to the count 2 offense of forcible oral copulation.
Nevertheless, we decline to reverse the judgment as the error is harmless. He also claims
sentencing error. We will strike the finding of the infliction of great bodily injury
pursuant to section 12022.7, subdivision (a) in count 1 and vacate the term imposed for
that enhancement.
                                     BACKGROUND
       Viewed in the light most favorable to the judgment (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the trial evidence disclosed at approximately noon on September
30, 2011, Nobbs and a friend, A., were sleeping behind a curtain inside the grounds of a
gated, abandoned Inglewood residence. Nobbs awoke to hear a lighter flicking on and
off. She pulled aside the curtain. Appellant stood there naked with a crack pipe and a
lighter in his hands. He demanded Nobbs suck his “dick.” Nobbs refused. At trial,
Nobbs and A. testified they did not know appellant and had never seen him before.
       When Nobbs refused, appellant started punching Nobbs in the face with his fists.
She slipped and fell face down on the ground. Appellant straddled and sat on her. He
told her she was going to “suck his dick” or he would beat her. He pummeled her, then



personnel concluded appellant was malingering to such an extent that hospital personnel
could not determine whether appellant was mentally ill, as well as malingering. On
March 9, 2012, Patton State Hospital certified appellant was restored to competency. On
August 28, 2012, the trial court in Department 95 found appellant competent to stand
trial, and appellant was transferred to the Inglewood court for a September 12, 2012,
preliminary hearing and later trial. Throughout the proceedings, his trial counsel
informed the trial court that counsel had a doubt as to competency. After the August 28,
2012, ruling, the trial court refused to once again recess proceedings for a further section
1368 determination. The trial court ruled appellant had been restored to competency with
a finding he was malingering. Thereafter, during trial, the trial court made findings on
appellant’s disruptive conduct and that appellant was selectively mute in addressing the
trial court.

                                              3
grabbed a hammer and used it to hit her on the head. A. was still asleep, but Nobbs’s
cries for help roused A.
       When A. awoke, appellant stood up on his knees, grasped A. by the shirt, pinning
her to the ground, punched A. in the face, then grabbed A. by the hair, stood up on his
knees, and pushed A.’s face at his penis. Appellant demanded A. “suck his dick.” A.
said, “No, no, no.” Appellant threatened to hit Nobbs with the hammer again if A. did
not accede to his demands. A. put her mouth on appellant’s penis. Appellant threatened
if A. bit him or if she did not “do it right,” he would use the hammer on Nobbs.
Appellant used the hammer again on Nobbs, rendering Nobbs momentarily unconscious.
       The women both struggled against appellant, and appellant ripped off A.’s pants in
the melee. Finally, A. broke free. A. ran, and appellant started to follow A., who jumped
the fence and ran to a grassy area on the grounds of a Taco Bell restaurant next door.
Appellant also jumped the fence, but not before he turned and picked up another hammer
and used again it to hit Nobbs, fracturing the bones in one of her hands. Nobbs followed
appellant over the fence and ran across the street to a McDonald’s restaurant. Police
officers arrived, and Nobbs identified appellant as her assailant. He was arrested.
       A passing motorist testified at trial he had telephoned 9-1-1 after he saw A.
jumping the fence of the abandoned residence naked below the waist. The motorist then
saw A. was followed over the fence by a naked man who disappeared down the side of
the residence.
       Nobbs and A. were transported to hospitals. Nobbs had a fractured skull and
severe cuts to her scalp and ear, some of which required plastic surgery. Bones in one
hand were broken, and she had to wear a cast for a month. The emergency room doctor
saw no evidence of injury to Nobbs’s brain on her CT scan. He testified despite there
being no evidence of injury, there might be traumatic injury to Nobb’s brain. He opined
such blunt trauma injury may affect a person’s personality after such an injury. At trial,
Nobbs complained of resulting headaches. Immediately after the attack, A. had red
marks on her face and arms where appellant had punched her. She was bloody when
initially contacted at the Taco Bell restaurant by a police officer.

                                              4
       When the police officers entered the assault scene, they discovered bedding
covered with a large quantity of blood. Hammers were recovered from the McDonald’s
restaurant and the scene of the attack.
                                        DISCUSSION
       1. The trial court failed sua sponte to charge the jury as to lesser included
offenses.
       Appellant contends the trial court had a duty to charge the jury with lesser
included offenses of attempted forcible oral copulation (§ 664, 288a, subd. (c)(2)(A)),
assault with the intent to commit oral copulation (§ 220), assault (§ 240) and battery
(§ 242). We conclude the evidence is substantial in requiring sua sponte instructions on
the lesser included offenses of assault with the intent to commit oral copulation and
battery.
              a. The relevant legal principles.
       “ ‘[E]ven absent a request, and over any party’s objection, a trial court must
instruct a criminal jury on any lesser offense “necessarily included” in the charged
offense, if there is substantial evidence that only the lesser crime was committed.
This venerable instructional rule ensures that the jury may consider all supportable crimes
necessarily included within the charge itself, thus encouraging the most accurate verdict
permitted by the pleadings and the evidence.’ (People v. Birks (1998) 19 Cal.4th 108,
112 (Birks).) ‘[T]he rule prevents either party, whether by design or inadvertence, from
forcing an all-or-nothing choice between conviction of the stated offense on the one hand,
or complete acquittal on the other. Hence, the rule encourages a verdict, within the
charge chosen by the prosecution, that is neither “harsher [n]or more lenient than the
evidence merits.” [Citations.]’ (Id. at p. 119.) Thus, ‘a trial court errs if it fails to
instruct, sua sponte, on all theories of a lesser included offense which find substantial
support in the evidence. On the other hand, the court is not obliged to instruct on theories
that have no such evidentiary support.’ ([People v.] Breverman [(1998)] 19 Cal.4th
[142,] 162 [(Breverman)].)” (People v. Smith (2013) 57 Cal.4th 232, 239-240 (Smith).)


                                               5
       We review de novo a trial court’s failure to instruct on lesser included offenses
and review the evidence in the light most favorable to the defendant. (People v. Waidla
(2000) 22 Cal.4th 690, 733; People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5)
       “ ‘[A] lesser offense is necessarily included in a greater offense if either the
statutory elements of the greater offense, or the facts actually alleged in the accusatory
pleading, include all the elements of the lesser offense, such that the greater cannot be
committed without also committing the lesser. [Citations.]’ [Citations.]” (Smith, supra,
57 Cal.4th at p. 240.)
       “Evidence is substantial if ‘a reasonable jury could find [it] persuasive.’ (People
v. Barton (1995) 12 Cal.4th 186, 201, fn. 8 (Barton).) ‘In deciding whether there is
substantial evidence of a lesser offense, courts should not evaluate the credibility of
witnesses, a task for the jury.’ (Breverman, supra, 19 Cal.4th at p. 162.) ‘[S]ubstantial
evidence to support instructions on a lesser included offense may exist even in the face of
inconsistencies presented by the defense itself’ (id. at pp. 162-163) and ‘even when as a
matter of trial tactics a defendant . . . fails to request the instruction.’ (Breverman,
at p. 154; see Barton, at pp. 196, 203 [a ‘jury’s truth-ascertainment function’ is impaired
unless ‘the opportunity to decide whether the defendant is guilty of a lesser included
offense established by the evidence’ is given, and ‘ “[t]he jury should not be constrained
by the fact that the prosecution and defense have chosen to focus on certain theories” ’].)”
(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137-1138, fn. omitted.)
       “[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully,
on all lesser included offenses and theories thereof which are supported by the evidence
must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d
818, 836]. A conviction of the charged offense may be reversed in consequence of this
form of error only if, ‘after an examination of the entire cause, including the evidence’
(Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have
obtained a more favorable outcome had the error not occurred (Watson, supra, 46 Cal.2d
818, 836).” (Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.)


                                               6
        Oral copulation is defined as any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person. (§ 288a, subd. (a); People
v. Grim (1992) 9 Cal.App.4th 1240, 1242-1243.)
        “Battery” is “any willful and unlawful use of force or violence upon the person of
another.” (§ 242.)
        Section 220 provides that “any person who assaults another with the intent to
commit mayhem, rape, sodomy, oral copulation . . . shall be punished by imprisonment in
the state prison for two, four, or six years.”
        An attempt to commit a crime has two elements: the specific intent to commit a
crime and a direct but ineffectual act done toward its commission. The act must be a
direct movement beyond preparation that would have accomplished the crime if not
frustrated by extraneous circumstances. (People v. Carpenter (1997) 15 Cal.4th 312,
387.)
               b. The analysis.
                      (i) The trial court erred by failing to charge with lesser included
                      offenses.
        The offenses of assault and battery are lesser included offenses of a forcible oral
copulation offense. (People v. Hughes (2002) 27 Cal.4th 287, 366 [battery is a lesser
included offense of certain sexual crimes, including forcible sodomy and rape]; In re Jose
M. (1994) 21 Cal.App.4th 1470, 1477 [every act of rape includes an assault]; see People
v. Atkins (2001) 25 Cal.4th 76, 88 [in discussing lesser included offenses to arson, the
court cites the example that “attempted rape, a specific intent crime, is a lesser included
offense of rape, a general intent crime.”].)
        In People v. Babock (1911) 160 Cal. 537, 540, the court held assault with the
intent to commit rape is a lesser included offense of forcible rape. (See discussions in
In re Jose M., supra, 21 Cal.App.4th at p. 1477; People v. Ramirez (1969) 2 Cal.App.3d
345, 352, disapproved on other grounds in People v. Ghent (1987) 43 Cal.3d 739, 757
(Ghent); People v. Rundle (2008) 43 Cal.4th 76, 143-144 & fn. 31, overruled on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) An assault with intent

                                                 7
to commit rape is merely an aggravated form of an attempted rape, the latter differing
from the former only in that an assault need not be shown. An assault with intent to
commit a crime necessarily embraces an attempt to commit that crime. (Ghent, supra,
43 Cal.3d at p. 757; see also People v. Rupp (1953) 41 Cal.2d 371, 382.)
       The offense of forcible oral copulation is a general intent sexual offense, as is
forcible rape. It follows by parity of reasoning that the lesser included offenses listed by
appellant constitute lesser included offenses to forcible oral copulation. (See also
People v. De Porceri (2003) 106 Cal.App.4th 60, 68; People v. Brown (1948)
87 Cal.App.2d 281, 286 [it is error to convict defendant of rape, sodomy, plus assault
with intent to commit those offenses].)
       The Attorney General cites People v. Santos (1990) 222 Cal.App.3d 723, 739
(Santos) for the proposition battery is not a lesser included offense of the charged
offenses. In Santos, the defendant was charged with two counts of lewd and lascivious
acts by force on a child under the age of fourteen years (§ 288, subd. (b)), four counts of
oral copulation by force with a child under the age of fourteen years and more than ten
years younger than the defendant (§ 288a, subd. (c)) and one count of sexual penetration
by force (§ 289, subd. (a)). The court held battery is not a lesser included offense of the
charged offenses. (Santos, at p. 739.) However, the court found the battery there was a
lesser related offense within the meaning of People v. Geiger (1984) 35 Cal.3d 510, 532
(Geiger), a case that the California Supreme Court has subsequently overruled. (Birks,
supra, 19 Cal.4th at p. 136.)
       This court disagrees with the decision by the court in Santos. The Santos court
reached its conclusion on this point without a further explanation of its reasoning.
(See also the discussion in People v. Shockley (2013) 58 Cal.4th 400, 405-405,
disapproving People v. Thomas (2007) 146 Cal.App.4th 1278, 1293, a decision
disagreeing with Santos.) The decision in Geiger was later overruled. Moreover, we find
the decision in Hughes, supra, 27 Cal.4th at page 366, unequivocally holding battery is a
lesser included offense of general intent, forcible sexual offenses, to be controlling.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)

                                              8
                      (ii) The error is harmless.
       Under People v. Watson (1956) 46 Cal.2d 818, 835 (Watson), an error is harmless
unless it is reasonably probable defendant would have achieved a more favorable result
had the court not erred. Watson requires a reversal only when there is a reasonable
probability, not a mere theoretical possibility, that the instructional error affected the
outcome of the trial. A posttrial review focuses not on what a reasonable jury could do
but what such a jury is likely to have done in the absence of error under consideration.
(People v. Lee (1999) 20 Cal.4th 47, 62.) In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result. (Breverman, supra, 19 Cal.4th at pp. 177-178.)
       The evidence at trial was as follows. Nobbs testified appellant assaulted her and
A. Initially, A. was asleep. When Nobbs awoke, appellant demanded Nobbs orally
copulate him. When Nobbs refused, appellant beat Nobbs, she fell on her stomach, and
he straddled her and hit her with his fists and a hammer. When A. awoke, Nobbs heard
appellant direct A. to “suck his penis.” Appellant remained atop Nobbs. But he stood up
on his knees, grabbed A. by the shirt and then by the hair, and turned his torso toward A.
He then pulled A.’s face to his flacid penis. Nobbs was looking to her left as she lay on
the ground. She observed A. put her mouth on appellant’s penis. Nobbs testified that in
attempting to obtain A.’s cooperation in an act of oral copulation, appellant threatened A.
and gave A. directions. For example, appellant told A. to “grab [his] dick” and “hold it.”
Appellant was telling her what to do, and A. attempted resistance. Nobbs described that
appellant “would put his penis in [A.’s] mouth and he would get mad.” Then appellant
would pull A.’s head back and hit Nobbs with the hammer.
       However, at trial, A. told a different version of the attack. A. said that when A.
awoke, appellant turned to her, pinned her to the ground by grasping her top at the
neckline and repeatedly punched her. He hit her whenever she tried to keep him from
hitting Nobbs with the hammer and a crowbar he had in his hands. Appellant said

                                               9
nothing during the attack. A. attempted to escape his grasp and to help Nobbs. Appellant
kept hitting Nobbs, who kept passing out and then regaining consciousness. Nobbs
repeatedly asked A. to go get help. During the struggle and her own beating, appellant
“got to [A.’s] pants and tore them off” her. A. finally escaped appellant’s grasp and his
pummeling fists. A. ran and climbed over the fence.
       A. acknowledged in her testimony after the police arrived, she spoke to a police
officer. A. could not recall the statement she made. When asked whether she told the
police officer appellant turned to her during the assault and said, “Suck on this pipe, b----
,” she denied she made such a statement to the officer. A. also denied appellant put his
penis into her mouth, even for a brief second.
       During cross-examination, A. said that she was absolutely certain “there had been
no contact between [her and appellant] in terms of oral sex.” But A. also testified she had
a history of mental problems and seizures. She implied she took psychotropic
medication. A. admitted her memory was poor and “comes and goes.” She told the
prosecutor there were times she did not remember a lot.
       A.’s testimony was impeached by Inglewood Police Officer Brigette Villavicencio
(Officer Villavicencio). The officer testified that on September 30, 2011, a woman had
flagged her down and pointed to A., who was lying on a patch of grass bleeding at the
Taco Bell restaurant. A. in turn pointed to a house next to the Taco Bell and asked
Officer Villavicencio to help her friend, “Bernie.” A. was hysterical and crying.
       The officer testified A. said she awoke that day to find a naked man, appellant,
lying atop Nobbs demanding, “Suck my dick.” A. jumped on and punched appellant.
Appellant threw her off and punched her in the face and on her arms. Nobbs and A.
attempted to “fight off” appellant. A. claimed at one point, appellant said to her, “Suck
on this pipe, b----,” and “for a second,” appellant “put his penis,” which was hard, “in her
mouth.” They wrestled. In the struggle, appellant ripped off A.’s pants. A. saw the man
strike Nobbs on the head with a hammer, and Nobbs passed out. A. ran to get help.




                                             10
       The parties stipulated on September 30, 2011, after Nobbs was admitted to the
hospital, Officer Villavicencio interviewed Nobbs. The officer’s summary of that
interview failed to include any mention of A. or of forcible oral copulation on A.
       Asked about her failure to mention A. in the statement she had given to Officer
Villavicencio, Nobbs said she could not recall the content of her statement. She
explained she had been in pain at the time. The officer had not asked her specifically
what appellant had done to A.; the officer only had asked questions of her as to what
appellant had done to her.
       We view the evidence in this case as overwhelmingly establishing appellant’s
guilt. It was apparent from the trial evidence A. changed her testimony due to issues of
extreme embarrassment due to the unpleasant circumstances of the attack, as well as a
genuine loss of memory on her part. We do not believe, after consideration of all the trial
evidence, any reasonable jury would have reached the contrary conclusion that Nobbs
was prevaricating about the circumstances of the attack and had not observed the act of
forcible oral copulation. In our view, the instructional error did not contribute to the
verdict. Accordingly, we affirm the judgment.
       Defendant cites a federal case, Vujosevic v. Rafferty (3d Cir. 1988) 844 F.2d 1023
(Vujosevic), which extended to noncapital cases the decision in Beck v. Alabama (1980)
447 U.S. 625 (Beck). In Beck, the United States Supreme Court held that a defendant in a
capital murder case has a constitutional right to have the jury instructed on a lesser
included offense in appropriate circumstances. (Beck, at p. 638.) The court specifically
left open the question whether the due process clause would require jury instructions on
lesser included offenses in noncapital cases. (Id. at p. 638, fn. 14.) Defendant
extrapolates from Vujosevic the Chapman standard should be applied in this case.
(Chapman v. California (1967) 386 U.S. 18, 36.)




                                             11
       We decline appellant’s request to use the more stringent Chapman standard to
evaluate the error here. The federal circuit courts are split on the question of extending
Beck to noncapital cases (see Solis v. Garcia (9th Cir. 2000) 219 F.3d 922, 928-929), and
this court is not bound by the decisions of the lower federal courts (People v. Gray (2005)
37 Cal.4th 168, 226). The California Supreme Court has held in a noncapital case, the
error is, at most, an error of California law alone. (Breverman, supra, 19 Cal.4th 142,
165.) It is thus subject only to the standard of review stated in Watson. (See also People
v. Valdez (2004) 32 Cal.4th 73, 119 & fn. 23; People v. Waidla (2000) 22 Cal.4th 690,
736, fn. 15; compare People v. Banks (2014) 59 Cal.4th 1113, 1161.)
       2. The sentencing issue.
       Appellant also raises a sentencing issue. He contends the use of the infliction of
great bodily injury finding on Nobbs was improperly used both to enhance his term of
imprisonment in count 1, as well as to serve as the basis for imposing the 25-years-to-life
term under the One Strike law in count 2. He urges subdivision (f) of the One Strike law,
section 667.61, bans such a dual use of the great bodily injury finding. He also argues
section 654, prohibiting multiple punishment requires the three-year enhancement on the
count 1 assault be ordered imposed and stayed.
       The Attorney General agrees and cites the decisions in People v. Mancebo (2002)
27 Cal.4th 735 (Mancebo) and People v. Rodriguez (2012) 207 Cal.App.4th 204
(Rodriguez).3


3
       Section 667.61 provides in pertinent part, as follows.

        “(a) . . . [A]ny person who is convicted of an offense specified in subdivision (c)
under one or more of the circumstances specified in subdivision (d) or under two or more
of the circumstances specified in subdivision (e) shall be punished by imprisonment in
the state prison for 25 years to life.

       (b) Except as provided in subdivision (a), (j), (l), or (m), any person who is
convicted of an offense specified in subdivision (c) under one of the circumstances
specified in subdivision (e) shall be punished by imprisonment in the state prison for 15
years to life.

                                             12
              a. Background.
       At sentencing, for count 1, the trial court imposed the term for assault with a
deadly weapon offense enhanced by a three-year term pursuant to section 12022.7,
subdivision (a). For count 2, the trial court imposed a consecutive term of 25 years under
the One Strike law by applying section 667.61, subdivisions (a) and (d), i.e., on the basis
of the great bodily injury finding in count 2. It then doubled that term under the Three
Strikes law. As it had not used the circumstance of the use of a deadly weapon in

       (c) This section shall apply to any of the following offenses: [¶] . . . [¶] (7) Oral
copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of
Section 288a. [¶] . . . [¶]

       (d) The following circumstances shall apply to the offenses specified in
subdivision (c): [¶] . . . [¶] (6) The defendant personally inflicted great bodily injury on
the victim or another person in the commission of the present offense in violation of
Section 12022.53, 12022.7, or 12022.8. [¶]

      (e) The following circumstances shall apply to the offenses specified in
subdivision (c): [¶] . . . [¶] (3) The defendant personally used a dangerous or deadly
weapon or a firearm in the commission of the present offense in violation of Section
12022, 12022.3, 12022.5, or 12022.53. [¶] . . . [¶]

        (f) If only the minimum number of circumstances specified in subdivision (d) or
(e) that are required for the punishment provided in subdivision (a), (b), (j), (l), or (m) to
apply have been pled and proved, that circumstance or those circumstances shall be used
as the basis for imposing the term provided in subdivision (a), (b), (j), (l), or (m)
whichever is greater, rather than being used to impose the punishment authorized under
any other provision of law, unless another provision of law provides for a greater penalty
or the punishment under another provision of law can be imposed in addition to the
punishment provided by this section. However, if any additional circumstance or
circumstances specified in subdivision (d) or (e) have been pled and proved, the
minimum number of circumstances shall be used as the basis for imposing the term
provided in subdivision (a), (j), or (l) and any other additional circumstance or
circumstances shall be used to impose any punishment or enhancement authorized under
any other provision of law. [¶] . . . [¶]

       (o) The penalties provided in this section shall apply only if the existence of any
circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading
pursuant to this section, and is either admitted by the defendant in open court or found to
be true by the trier of fact.” (Stats. 2011, ch. 361, § 5.)

                                              13
selecting a One Strike term for count 2, it enhanced count 2 for the weapon use pursuant
to section 12022.3, subdivision (a), with a consecutive 10-year term.
       The amended information, filed November 6, 2012, complied with the
requirements of the One Strike law by making the required allegations to support the trial
court’s sentence.
              b. The analysis.
       The Attorney General concedes error, and we agree.
       Generally, a pled and proved circumstance (here, the infliction of great bodily
injury) that triggers application of the section 667.61 sentencing scheme may not be used
in dual fashion to impose an additional punishment under another sentencing provision.
(§ 667.61, subd. (f); Rodriguez, supra, 207 Cal.App.4th at pp. 214-215; see also
Mancebo, supra, 27 Cal.4th at p. 757.)
       Here, the “minimum circumstance[]” pled and proved and then used to impose the
25-years-to-life One Strike term was the infliction of great bodily injury within the
meaning of section 12022.7, subdivision (a). Under subdivision (f) of the One Strike
sentencing scheme, the defendant was required to be sentenced by use of this
circumstance under section 667.61, subdivision (a) only. Subdivision (f) does not permit
a dual use of the infliction of great bodily injury so as to enhance another nonstrike
offense in the case -- here, the assault with the deadly weapon in count 1.
       As subdivision (f) is determinative of the issue appellant raises, we do not address
the issue under section 654. (See People v. Ahmed (2011) 53 Cal.4th 156, 163 [when a
specific statute applies, the trial court need not consider the more general section 654].)
       We will strike the section 12022.7, subdivision (a), finding with respect to count 1
and vacate the three-year term the trial court imposed as an enhancement.




                                             14
                                    DISPOSITION
      The judgment is modified to strike the section 12022.7, subdivision (a),
enhancement imposed in count 1 and to vacate the three-year term imposed pursuant to
the enhancement. As modified, it is affirmed.
      The trial court shall cause its clerk to amend the abstract of judgment in
conformity with this opinion and send the amended abstract of judgment to the
Department of Corrections and Rehabilitation.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KLEIN, P. J.


We concur:



             KITCHING, J.




             ALDRICH, J.




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