People v. Smith CA4/2 ( 2016 )


Menu:
  • Filed 1/12/16 P. v. Smith CA4/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,
    Plaintiff and Respondent,                                       E061317
    v.                                                                       (Super.Ct.No. SWF1303357)
    CLIFTON LEROY SMITH,                                                     OPINION
    Defendant and Appellant.
    APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
    Judge. Affirmed as modified.
    Carl J. Fabian, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
    General, and Eric A. Swenson and Daniel J. Hilton, Deputy Attorneys General, for
    Plaintiff and Respondent.
    1
    Defendant Clifton Leroy Smith asked a stranger if he could have his bike. When
    the victim refused, defendant poked the victim in the hand with a knife, saying, “[L]et
    go.” The victim continued to refuse, and defendant “backed off.”
    Less than a week later, defendant confronted the same victim, pulled out a gun,
    and demanded the victim’s wallet. Once again, the victim resisted, but defendant rifled
    through his pockets and took his wallet and some loose cash.
    When defendant was arrested, he was found to be in possession of
    methamphetamine and a glass pipe. Before trial, he pleaded guilty to possession of
    methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of drug
    paraphernalia (Health & Saf. Code, § 11364.1).
    After a jury trial, defendant was found guilty of attempted robbery (Pen. Code,
    §§ 211, 664) and robbery (Pen. Code, § 211). In a bifurcated proceeding, after he waived
    a jury trial, three “strike” priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), two prior
    serious felony convictions (Pen. Code, § 667, subd. (a)), and seven prior prison term
    enhancements (Pen. Code, § 667.5, subd. (b)) were found true. As a result, defendant
    was sentenced to a total of 66 years to life in prison.
    Defendant now contends:
    1. The trial court erred by failing to instruct on lesser included offenses.
    2. For various reasons, five of the seven prior prison term enhancements must be
    stricken.
    2
    3. The trial court failed to state whether the terms on counts 3 and 4 were
    concurrent or consecutive, and hence they must be deemed to be concurrent.
    We agree that three of the prior prison term enhancements must be stricken. We
    also agree that the terms on counts 3 and 4 should be concurrent, but we conclude that
    that is how the trial court ran them. Otherwise, we find no reversible error.
    I
    FACTUAL BACKGROUND
    A.     August 10, 2013: Attempted Robbery (Count 2).
    Victim Brian Miller lived and worked, as a maintenance man, at the Florida Inn in
    Hemet.
    On or before August 10, 2013, around 5:00 p.m., Miller and his friend Patty were
    across the street from the Florida Inn; Miller had his bike with him. Defendant walked up
    and asked if he could have the bike. Miller said no.
    Defendant took out a knife and poked Miller’s hand with it, saying, “[L]et go.” He
    did not poke hard enough to break the skin, but hard enough to “let [Miller] know that he
    meant business . . . .” Defendant was “in [Miller’s] face”; they were about six inches
    apart. Miller was afraid. Nevertheless, he said, “I’m not afraid of you.”
    Patty said, “Ah, leave him alone . . . .” At that point, defendant “backed off.”
    However, he watched them as they walked back to the motel. Miller did not call the
    police because he “figured the situation had been handled without any harm.”
    3
    Miller admitted that he had never told anyone that Patty was with him until two
    days before trial, when he told a prosecution investigator. He explained that he had not
    been asked. He did not remember Patty’s last name; he also did not know how to find
    her, because she had moved.
    B.     August 17, 2013: Robbery (Count 1).
    On August 17, 2013, around 10:30 or 11:00 p.m., Miller finished doing some work
    in one of the rooms of the Florida Inn. When he opened the door to leave, defendant
    confronted him and shoved him back into the room.
    Defendant drew a gun and demanded Miller’s wallet. He started grabbing things
    out of Miller’s pockets, including his wallet and some loose bills. Miller “resisted,”
    causing change from his pockets to go “flying.” Defendant picked up the change. He
    threatened to shoot Miller if Miller “didn’t turn it over . . . .” Miller lunged toward
    defendant’s gun hand. Defendant started punching and kicking him. Finally, defendant
    ran out the door. Miller used the manager’s phone to call 911.
    When the police interviewed Miller, he described the robber as black, about six
    feet tall, and weighing about 180 pounds. He also said that the robber was missing front
    teeth. Defendant matched this description. However, Miller added that the robber had “a
    short fro” and no facial hair; he did not remember seeing any tattoos. When defendant
    was arrested, he had cornrows, a mustache and beard, and visible tattoos.
    Miller described the gun as a black semiautomatic.
    4
    C.     Defendant’s Arrest.
    About two and a half months later, on November 2, 2013, Miller saw defendant
    near the Florida Inn. He called 911, and the police arrested defendant. In his pocket, they
    found a replica toy handgun.
    The police held an in-field showup, in which Miller identified defendant.
    At trial, Miller testified that the color, the shape, and the barrel of the toy gun all
    matched the gun he saw; however, he did not remember seeing a makeshift sight that was
    taped to the top.
    When a prosecution investigator interviewed him before trial, Miller said he
    thought that the gun used in the robbery was smaller than the toy gun.
    II
    FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSES
    Defendant contends that the trial court erred by failing to instruct on assault,
    battery, and attempted theft as lesser included offenses to count 1 and on assault, battery,
    and theft as lesser included offenses to count 2.
    A.     Additional Factual and Procedural Background.
    During an instructions conference, there was this dialogue:
    “THE COURT: Okay. We do need to address the issue of lessers for robbery.
    There would be attempted robbery, but I don’t find any substantial facts to support
    attempted robbery as to Count 1. It’s either completed robbery or incomplete robbery.
    But there is an available lesser under 240. And the only way that one could get to that
    5
    would be if you sever off the cause of action at an earlier stage and say there was
    assaultive conduct without a taking before it. It’s kind of an artifice of law. It’s not
    really recognized in the true substance of the case. But have you talked to your client
    notwithstanding that?
    “[DEFENSE COUNSEL]: Yes, your Honor.
    “THE COURT: And what’s the desire by the defense?
    “[DEFENSE COUNSEL]: The desire is to waive the lessers. Waive instruction of
    the lessers.
    “Is that right, Mr. Smith?
    “THE DEFENDANT: Yes.
    “[DEFENSE COUNSEL]: We’ve talked about that.
    “THE COURT: Okay. Mr. Smith, only you can waive a lesser offense. . . . [¶]
    “You could very well be entitled to that instruction based on the circumstance. For
    tactical reasons your attorney has made the decision that he would rather force the jury to
    either make the decision of guilty or not guilty on the major charge. That’s going to be
    your decision, though.
    “Is that what you want me to do?
    “THE DEFENDANT: Yes.
    “THE COURT: And you understand when you waive that lesser, that’s done. You
    can’t argue later on, well, we should have instructed on a lesser offense.
    “You understand that?
    6
    “THE DEFENDANT: Yes.”
    B.     Discussion.
    1.     Invited Error.
    Preliminarily, the People contend that the error, if any, was invited.
    “‘“[A] defendant may not invoke a trial court’s failure to instruct on a lesser
    included offense as a basis on which to reverse a conviction when, for tactical reasons,
    the defendant persuades a trial court not to instruct on a lesser included offense supported
    by the evidence. [Citations.] In that situation, the doctrine of invited error bars the
    defendant from challenging on appeal the trial court’s failure to give the instruction.”’
    [Citation.]” (People v. Beames (2007) 
    40 Cal.4th 907
    , 927.)
    We recognize that “[t]he invited error doctrine applies [only] when the defense has
    made a ‘“‘“conscious and deliberate tactical choice”’”’ in asking for the instruction in
    question. [Citation.]” (People v. Merriman (2014) 
    60 Cal.4th 1
    , 104.) Here, however,
    defense counsel made it clear that he had made a conscious and deliberate tactical choice
    to forego any instructions on lesser included offenses. The fact that he did not state his
    reasons on the record is of no consequence. “[T]he record must show only that counsel
    made a conscious, deliberate tactical choice between having the instruction and not
    having it.” (People v. Cooper (1991) 
    53 Cal.3d 771
    , 831.) “In cases involving an action
    affirmatively taken by defense counsel, we have found a clearly implied tactical purpose
    to be sufficient to invoke the invited error rule. [Citations.]” (People v. Coffman and
    Marlow (2004) 
    34 Cal.4th 1
    , 49.)
    7
    Defendant relies on People v. Golde (2008) 
    163 Cal.App.4th 101
     (Golde). There,
    the defendant and his counsel expressly waived any instructions on lesser included
    offenses. (Id. at pp. 114-115.) On appeal, the defendant argued that the trial court erred
    by failing to instruct on one particular lesser included offense. (Id. at p. 113.) The People
    argued that the error was invited. The court rejected this argument, reasoning that the
    trial court has a duty to instruct on lesser included offenses even when the defendant
    objects. (Id. at pp. 114-115.)
    Golde, however, conflicts with California Supreme Court authority. “‘“‘ . . . The
    obligation to instruct on lesser included offenses exists even when as a matter of trial
    tactics a defendant not only fails to request the instruction but expressly objects to its
    being given.”’ [Citation.] [¶] Nevertheless, the claim may be waived under the doctrine
    of invited error if trial counsel both ‘“intentionally caused the trial court to err”’ and
    clearly did so for tactical reasons.’ [Citation.]” (People v. Souza (2012) 
    54 Cal.4th 90
    ,
    114.)
    “The doctrine of invited error does not . . . vindicate the decision of a trial court to
    grant a defendant’s request not to give an instruction that is otherwise proper: the error is
    still error. [Citation.] The cases . . . do not hold that a trial court must honor such a
    request; they hold only that when the trial court accedes to the defendant’s wishes, the
    defendant may not argue on appeal that in doing so the court committed prejudicial error,
    thus requiring a reversal of the conviction. These holdings are consistent with the rule . . .
    that the trial court must instruct on a lesser included offense when the evidence would
    8
    support a conviction for the offense, notwithstanding the defendant’s objection to the
    instruction.” (People v. Barton (1995) 
    12 Cal.4th 186
    , 198, fn. omitted.)1
    Defendant also tries to reframe the nature of the error by arguing that the trial court
    erred by allowing defense counsel to waive lesser included offense instructions.2
    However, this claim, too, is barred by invited error.
    Finally, defendant’s fallback position is that, by inviting error, defense counsel
    rendered constitutionally ineffective assistance.
    “To establish ineffective assistance of counsel, ‘“‘a defendant must first show
    counsel’s performance was “deficient” because his “representation fell below an
    objective standard of reasonableness . . . under prevailing professional norms.”’”’
    [Citation.] ‘“[T]here is a ‘strong presumption that counsel’s conduct falls within the wide
    range of reasonable professional assistance.’”’ [Citation.] ‘In the usual case, where
    counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the
    record, we will not find ineffective assistance of counsel on appeal unless there could be
    1      At oral argument, defendant’s counsel pointed out that Golde has been cited
    by the California Supreme Court (People v. Livingston (2012) 
    53 Cal.4th 1145
    , 1151) as
    well as by the Judicial Council’s Advisory Committee on Criminal Jury Instructions (e.g.,
    CALCRIM No. 225 (2015) Authority, p. 55). Rather conspicuously, however, it has
    never been cited with regard to any issue of invited error.
    2      Alternatively, defendant may be arguing that the trial court erred by
    allowing defendant himself — as opposed to his counsel — to waive lesser included
    offense instructions. His opening brief is not clear on this point. If this is his argument,
    however, we fail to see how he was prejudiced, as his defense counsel not only
    recommended but also joined in the waiver.
    9
    no conceivable reason for counsel’s acts or omissions.’ [Citation.]” (People v. Nguyen
    (2015) 
    61 Cal.4th 1015
    , 1051.)
    The classic reason — indeed, the only logical reason — for objecting to
    instructions on a lesser included offense is that, if the jury is not convinced that the
    prosecution has proven every element of the charged offense, the defendant will be
    acquitted, not merely convicted of the lesser. It is safe to infer that this was defense
    counsel’s reasoning here.
    In addition, defense counsel chose to present a single defense — mistaken identity.
    This offered the prospect of a complete acquittal. He could reasonably be concerned that,
    if he argued in the alternative that defendant was guilty, though guilty only of lesser
    included offenses, that would detract from his central theme.
    Defendant argues that it was not reasonable to increase the risk of a three strikes
    sentence when the lesser included offenses — assault, battery, and theft — were only
    misdemeanors. Nevertheless, if defendant really, really did not want to be in custody at
    10
    all and was willing to do anything he possibly could to try to avoid it,3 that could be a
    rational gamble.4
    We therefore conclude that defendant’s contention is barred by the doctrine of
    invited error. We further conclude that defendant has not shown that, by inviting the
    asserted error, defense counsel rendered ineffective assistance.
    2.      The Merits.
    Separately and alternatively, we also reject defendant’s contention on the merits.
    “A trial court must instruct on all lesser included offenses supported by substantial
    evidence. [Citations.] The duty applies whenever there is evidence in the record from
    which a reasonable jury could conclude the defendant is guilty of the lesser, but not the
    greater, offense. [Citations.]” (People v. Duff (2014) 
    58 Cal.4th 527
    , 561.)
    “We . . . appl[y] two tests in determining whether an uncharged offense is
    necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory
    3      Defendant asserts that a conviction on the lesser included offenses “would
    have resulted in credit . . . for time served . . . .” That was not at all clear. Defendant had
    pleaded guilty to possession of methamphetamine, which at the time was a wobbler.
    (Health & Saf. Code, former § 11377, subds. (a)-(b), Stats. 2011, ch. 15, § 171; see also
    Health & Saf. Code, § 11055, subd. (d)(2).) Given defendant’s extensive criminal record,
    defense counsel could reasonably conclude that, if defendant’s only other convictions
    were misdemeanors, the trial court was unlikely to reduce this count to a misdemeanor.
    4      At sentencing, it was revealed that defendant had a life-threatening illness
    such that, even if he were sentenced to a determinate term of years, he “likely [would] die
    in prison.” That could certainly be an incentive to risk an extremely lengthy term (that he
    would die before serving) in the hope of avoiding custody entirely.
    11
    pleading’ test. [Citation.] The elements test is satisfied if the statutory elements of the
    greater offense include all of the statutory elements of the lesser offense, such that all
    legal elements of the lesser offense are also elements of the greater. [Citation.] . . .
    Under the accusatory pleading test, a lesser offense is included within the greater charged
    offense if the facts actually alleged in the accusatory pleading include all of the elements
    of the lesser offense. [Citations.]” (People v. Bailey (2012) 
    54 Cal.4th 740
    , 748.)
    “On appeal, we independently review whether a trial court erroneously failed to
    instruct on a lesser included offense. [Citation.]” (People v. Trujeque (2015) 
    61 Cal.4th 227
    , 271.)
    i.     Count 1: Robbery.
    Defendant contends that the trial court was required to instruct on assault, battery,
    and theft as lesser offenses to the robbery charged in count 1.
    Theft is a lesser included offense of robbery. (People v. Castaneda (2011) 
    51 Cal.4th 1292
    , 1331.) Assault and battery are not lesser included offense of robbery under
    the elements test. (People v. Parson (2008) 
    44 Cal.4th 332
    , 349 [assault].) Defendant
    argues, however, that because the information alleged that the robbery was committed by
    “force and fear” (italics added), assault and battery were lesser included offense of
    robbery under the accusatory pleading test.
    We may assume, without deciding, that defendant is correct on this point. (But see
    People v. Wright (1996) 
    52 Cal.App.4th 203
    , 210-211.) Even if so, the trial court was not
    required to instruct on either assault or battery unless there was substantial evidence that
    12
    defendant committed an assault or a battery but not a robbery. Likewise, it was not
    required to instruct on theft unless there was substantial evidence that defendant
    committed a theft but not a robbery.
    Defendant’s act of shoving Miller constituted both an assault and a battery.
    Defendant’s act of pulling a gun on Miller and threatening to shoot him could also
    constitute an assault.5 (People v. Miceli (2002) 
    104 Cal.App.4th 256
    , 269.) Finally,
    defendant’s act of taking Miller’s wallet and cash constituted theft. There was no
    substantial evidence, however, that the assault was not part of the theft, or vice versa.
    Defendant argues that the jury could have found that he assaulted Miller to
    retaliate against him or to prevent him from testifying and only thereafter formed the
    intent to steal. We cannot agree. To infer an intent to retaliate from the mere fact that
    defendant had committed a previous crime against Miller would be purely speculative.
    (See People v. Castaneda, 
    supra,
     51 Cal.4th at p. 1332 [“the fact that defendant had other
    motives for killing the victim does not constitute evidence that he formed the intent to
    steal only after he ceased applying force against her.”].) The shove merely prevented
    Miller from leaving the room and forced him back inside. As soon as defendant and
    Miller could not be seen from outside, defendant immediately drew his gun and
    5      This would not constitute an assault if defendant was using a toy gun.
    (People v. Wolcott (1983) 
    34 Cal.3d 92
    , 100.) However, in light of Miller’s inability to
    positively identify the toy gun as the gun used in the robbery, the jury could reasonably
    find that defendant was using a real gun.
    13
    demanded Miller’s wallet. There is no evidence that defendant’s intent changed at any
    point.
    Defendant relies on People v. Ledesma (2006) 
    39 Cal.4th 641
    . There, the Supreme
    Court held that the trial court erred by failing to instruct on theft as a lesser included
    offense of robbery. (Id. at p. 715.) It explained that there was substantial evidence that
    the defendant killed the victim to prevent him from testifying and formed the intent to
    steal only after the victim was dead. (Ibid.) The court noted that “[t]he prosecution’s
    witnesses testified that defendant had stated before the killing that he wanted to kill the
    victim out of revenge and to prevent his testimony . . . .” (Ibid.) The court also cited
    (ibid.) the defendant’s own statements that “he had killed a person who had identified him
    in a robbery” and that “if he eliminated the witness, there would be no one to testify
    against him.” (Id. at p. 657.) There was no similar evidence of intent to retaliate here.
    Finally, in his reply brief, defendant argues that the trial court found that assault
    was a viable lesser included offense. That is not how we interpret its remarks. While it
    did say that assault was “an available lesser,” it added that “the only way that one could
    get to that would be if you . . . say there was assaultive conduct without a taking before
    it.” In other words, it concluded, just as we do, that the assault and the taking were
    inseparable. It allowed defense counsel to waive any lesser included offense instructions,
    not because it believed they were required, but because it wanted to foreclose any
    possible dispute. We note, however, that even if the trial court had found sufficient
    14
    evidence of a lesser included offense, that finding would be irrelevant now, because we
    review the issue independently.
    We therefore conclude that the trial court did not err by failing to instruct on any
    lesser included offenses with respect to count 1.
    ii.     Count 2: Attempted Robbery.
    Defendant also contends that the trial court was required to instruct on assault,
    battery, and attempted theft as lesser offenses to the attempted robbery charged in
    count 2.
    Just as theft is a lesser included offense of robbery, attempted theft is a lesser
    included offense of attempted robbery. (People v. Reeves (2001) 
    91 Cal.App.4th 14
    , 53.)
    Completed assault and completed battery are not lesser included offenses of
    attempted robbery. (People v. Medina (2007) 
    41 Cal.4th 685
    , 694-695.) Nor is there any
    wording in the information that would make them lesser included offenses in this case
    under the accusatory pleading test. However, just as we assumed, in part II.B.1, ante, that
    assault and battery are lesser included offenses of robbery, we may assume that attempted
    assault and attempted battery are lesser included offenses of attempted robbery. The jury
    could convict defendant of attempted assault and attempted battery even though the
    evidence showed a completed assault and battery. (Pen. Code, § 663; People v. Mejia
    (2012) 
    211 Cal.App.4th 586
    , 605.)
    15
    Once again, however, the trial court was not required to instruct on any of these
    crimes unless there was substantial evidence of an attempted assault, battery, or theft that
    was not part of an attempted robbery. There was no such evidence here.
    Defendant argues that there was evidence that he did not intend to commit a theft
    by means of force or fear, and thus he did not have the specific intent to commit a
    robbery. He points to “the extremely brief duration of the encounter” and to the fact that
    he stopped as soon as Patty told him to. Nevertheless, the evidence showed that he poked
    Miller’s hand at the same time as he said, “[L]et go.” Thus, he used force while
    demanding the property. He had no other apparent reason to poke Miller’s hand. The
    fact that he desisted quickly and readily cannot obscure the fact that the evidence showed
    an attempted robbery at that point.
    Defendant also argues that there was evidence that he merely wanted to “borrow”
    or to “use” Miller’s bike — i.e., that he lacked the intent to permanently deprive. (Italics
    omitted.) When he first walked up to Miller, he asked if he could “have” Miller’s bike.
    Miller testified that he refused to let defendant “use” the bike. But then defendant started
    poking Miller in the hand with a knife. They were strangers to each other. Defendant
    had no apparent way of returning the bike to Miller unless they worked out some
    consensual arrangement. By poking Miller in the hand with his knife, defendant put paid
    to any such possibility.
    Finally, defendant argues that the vagueness of Miller’s testimony about Patty and
    the prosecution’s inability to produce her gave the jury reason to doubt Miller’s testimony
    16
    about the bicycle incident. The jury could have concluded that Miller was lying or
    exaggerating. However, it did not have any basis to conclude that he was lying about the
    use of force but not about the attempted taking, or vice versa. Thus, Patty’s absence was
    not a basis for lesser included offense instructions.
    We therefore conclude that the trial court also did not err by failing to instruct on
    any lesser included offenses with respect to count 2.
    III
    PRIOR PRISON TERM ENHANCEMENTS
    Defendant contends that five of the seven prior prison term enhancements must be
    stricken.
    A.     Additional Factual and Procedural Background.
    Attached as Attachment A is a chart summarizing the evidence that was admitted
    at the trial on the priors and summarizing the trial court’s use of the priors in sentencing.
    B.     Prior Prison Term Enhancements and Prior Serious Felony Enhancements
    Based on the Same Conviction.
    Under People v. Jones (1993) 
    5 Cal.4th 1142
    , a single prior conviction can be the
    basis of a prior serious felony conviction enhancement or a prior prison term
    enhancement, but not both.
    The People concede that the trial court erred by imposing both prior serious felony
    conviction enhancements and prior prison term enhancements based on prior 2 and prior
    17
    3. Accordingly, we will strike these prior prison term enhancements. (People v. Jones,
    
    supra,
     5 Cal.4th at p. 1157.)
    C.     Stay of a Prior Prison Term Enhancement.
    The trial court stayed the prior prison term enhancement based on prior 4.
    However, prior 4 could not be used as the basis for a prior prison term enhancement,
    because prior 3 and prior 4 did not give rise to separate prison terms. (People v. Riel
    (2000) 
    22 Cal.4th 1153
    , 1203.) Thus, as the People concede, the enhancement should be
    stricken, not stayed.
    D.     The Effect of Proposition 47.
    Defendant contends that, under Proposition 47, prior 1 (possession of cocaine) and
    prior 5 (receiving stolen property) are no longer felonies and therefore can no longer be
    the basis of prior prison term enhancements.
    Defendant filed his notice of appeal on June 10, 2014. Proposition 47 went into
    effect on November 5, 2014. (People v. Diaz (2015) 
    238 Cal.App.4th 1323
    , 1328.)
    Defendant has not filed a petition for resentencing under Proposition 47 (see Pen. Code,
    § 1170.18), nor has he raised his present contention in the trial court in any other way.
    In sum, “[n]o ruling was made below. Accordingly, no review can be conducted
    here. ‘[T]he absence of an adverse ruling precludes any appellate challenge.’ [Citation.]”
    (People v. Rowland (1992) 
    4 Cal.4th 238
    , 259.)
    18
    IV
    CONSECUTIVE OR CONCURRENT TERMS ON COUNTS 3 AND 4
    Defendant contends that the trial court failed to state whether the terms on count 3
    (possession of methamphetamine) and count 4 (possession of paraphernalia) were
    concurrent or consecutive, and hence they must be deemed concurrent.
    The trial court did order count 4 “served concurrently with [c]ount 3.” It did not
    expressly state whether counts 3 and 4 were to be served concurrently or consecutively
    with respect to counts 1 and 2. However, it stated that that the total determinate term was
    16 years, which necessarily meant that it intended both counts to be concurrent. The
    People concede that counts 3 and 4 were run concurrently. There is no need to modify the
    judgment in this respect.
    V
    DISPOSITION
    The judgment is modified as follows. The true findings on the second, third, and
    fourth prior prison term enhancements are stricken. The one-year terms imposed on the
    second and third prior prison term enhancements and the stayed one-year term imposed
    on the fourth prior prison term enhancement are also stricken. This means that the
    aggregate sentence is reduced to 64 years to life. The judgment as thus modified is
    affirmed.
    The clerk of the superior court is directed to prepare an amended sentencing
    minute order and an amended abstract of judgment reflecting these modifications and to
    19
    forward a certified copy of the amended abstract to the Department of Corrections and
    Rehabilitation. (Pen. Code, §§ 1213, subd. (a), 1216.)
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    RAMIREZ
    P. J.
    We concur:
    KING
    J.
    MILLER
    J.
    20
    Prior    Prior
    prison   serious
    Prior   Case No.      Convicted       Sentenced       Crime                       Term        term     felony Strike
    1       A471709       Jul. 1, 1988    Apr. 16, 1990   Possession of cocaine       16 mos.     X
    2       YA003201      Apr. 27, 1990   May 8, 1990     Robbery                     2 yrs.      X        X      X
    3       YA009721      Feb. 24, 
    1992 Mar. 30
    , 1992   Robbery                     7 yrs.      X        X      X
    4             "               "              "        Residential burglary               "    Stayed          X
    5       YA026672      Apr. 2, 1996    Apr. 16, 1996   Receiving stolen property   8 yrs.      X
    6       TA068052-01   Apr. 7, 2003    Apr. 7, 2003    Unlawful taking or          4 yrs., 8   X
    driving                     mos.
    7       TA097409-01 May 20, 2008      May 20, 2008    Possession of cocaine       4 yrs.      X
    base for sale
    ATTACHMENT A
    21