THE PEOPLE v. FERNANDO AMARO

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. FERNANDO AMARO et al., Defendants and Appellants.

B211000

Decided: March 30, 2011

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Amaro. Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Richard. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendants and appellants Fernando Amaro and Joseph Richard appeal from the judgment entered following a jury trial that resulted in their convictions for multiple counts of robbery and false imprisonment by violence, as well as Richard's conviction for possession of a firearm by a felon.   Richard was sentenced to a term of 50 years in prison;  Amaro was sentenced to 22 years, 4 months.

Appellants contend:  (1) the evidence was insufficient to support the jury's finding that property valued at over $50,000 was taken during the crimes;  (2) the evidence was insufficient to support various firearm enhancements;  (3) because the verdict forms were deficient, the true findings on various firearm allegations must be stricken;  (4) the trial court erred by imposing multiple Penal Code section 667.5, subdivision (b) 1 enhancements;  and (5) the abstract of judgment must be modified to correct clerical errors.   Appellant Richard additionally contends that the evidence was insufficient to support his conviction for being a felon in possession of a firearm.   We order various enhancements stricken as to each appellant, and correct numerous clerical errors contained in the abstracts of judgment.   In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Appellants were charged in a 47–count information with various crimes and numerous enhancements related to 12 robberies of 10 markets and check cashing establishments between February 7 and June 16, 2007.   Appellant Amaro was charged with participating in six of the incidents;  Richard was charged with participating in each, with either Amaro and/or other perpetrators who are not parties to this appeal.   Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11;  People v. Johnston (2003) 113 Cal.App.4th 1299, 1303–1304), the evidence relevant to the issues presented on appeal established the following. a. February 7, 2007 robbery of the Carson Market.

Sam Chung and Moon Chung 2 owned the Carson Market located in Carson, as well as a check cashing business located inside the market.   On the morning of February 7, 2007, the Chungs were working at the market.   Moon was behind the cash register.   Sam was inside the check cashing office, which was protected by a bullet-proof glass wall and an automatically-locking metal door.   Employees Eduardo Martinez 3 and Jose Medina were also working in the market;  customer Reynante Barnachea was shopping.

Suddenly four robbers, including Amaro and Richard, entered the store wearing ski masks or hoods.   One of them pointed a small black gun at Barnachea and ordered him to throw away his cellular telephone;  Barnachea complied.   The gunman pointed the gun at Martinez and Medina and told them to kneel down.   They complied.   A second robber holding a silver revolver guarded them.   Meanwhile, two of the robbers pushed Moon to the check cashing office door, with a gun pointed to her head.   Sam heard Moon screaming and attempted to close the door, but abandoned the effort when he saw one of the robbers pointing a gun at him.   Three of the robbers entered the check cashing office and hit Sam on the head with the gun three times.   They demanded that he open the cash register.   Moon complied, and then fainted.   Sam estimated that the robbers took approximately $30,000 from the market.   The robbery was captured on videotape.

Richard and Amaro were eventually apprehended.   On June 20 and 21, 2007, they were interviewed by detectives from a variety of law enforcement agencies from the jurisdictions in which the robberies were committed, including the Los Angeles County Sheriff's Department, the Los Angeles Police Department, the Long Beach Police Department, and the Bell Police Department.   Richard admitted to detectives that he had participated in the Carson Market robbery.   He stated that one of the robbers had used a chrome .357 revolver.   He claimed the robbers stole approximately $1,600 to $1,700 from the market.

b. South Bay Liquor robbery.

Alvero Sosa was the manager of the South Bay Liquor and Market located in Wilmington.   On the morning of March 19, 2007, Amaro and Richard entered the store wearing clothing that concealed their faces.   Richard pointed a black gun at Sosa while Amaro removed between $400 to $700 from the cash register.   Richard threatened to shoot Sosa unless he opened a safe deposit box in the store, but Sosa demonstrated that none of his keys would unlock it.   At some point, either Amaro or Richard took Sosa's wallet, which contained between $100 and $200.   They also stole two bottles of liquor valued at approximately $32 each.   Richard admitted to a detective that he committed the robbery and contended he used a replica handgun or a BB gun.

c. Villa Market robbery.

On March 30, 2007, Alejandro Garcia, Emma Flores and Enrique Pecson were working at the Villa Market in Long Beach.   Cheryl Manalo and Maribel Payra were shopping in the store.   Amaro and Richard, wearing clothing to cover their faces, entered the market.   Richard pointed a silver gun at Flores, the cashier, and threatened to kill her if she did not give him all the money.   Amaro placed a small black handgun against Garcia's head and threatened to shoot him.   Amaro also pointed the gun at Pecson, told everyone to get on the floor, and threatened to shoot if anyone called police.   Richard ordered Flores to put all the cash from the registers inside a bag he provided, and she complied.   She estimated that she placed between $4,000 and $5,000 inside the bag.   The robbery was captured by the store's video surveillance cameras.

Richard admitted to detectives that he was one of the robbers.   He claimed he had used a fake silver revolver during the crime, and estimated obtaining $3,000 from the robbery.   Detectives also interviewed Amaro, who likewise admitted committing the robbery.   He told detectives that he had used a replica .380 handgun.

d. A & T Mini Market robbery.

On May 4, 2007, Richard and two accomplices robbed the A & T Mini Market and check cashing business located in Bellflower.   Richard and his accomplices physically overpowered the market's owner, Fady Shehatta, and took approximately $11,000 from the business.   Shehatta did not mention seeing a gun during the robbery.   A customer, Noor Babul, felt one of the robbers put something heavy to the back of his head but was unsure whether the item was metal or wood.   Richard admitted to a detective that he was one of the robbers.

e. OS Market robbery.

On approximately noon on May 10, 2007, Richard and Amaro robbed the OS Market and check cashing establishment in Long Beach.   Amaro entered the market and pretended to be shopping;  Richard followed and pointed a “dark gun” at the cashier, Hyon Jun Kim. According to Kim, the robbers took approximately $6,000.   The robbery was captured by the market's video surveillance system.   Amaro and Richard both admitted to detectives that they were the robbers.   Richard stated he used a black BB gun, and both men claimed to have obtained less than $6,000 from the robbery.

f. A & D Liquor robbery.

On the morning of May 17, 2007, Richard and Amaro robbed the A & D Liquor Store and check cashing business in the City of Bell. Richard pointed a “small gun” at the elderly owner, Samir Awar, hit him, demanded money, pushed him on the floor, and threatened to kill him if he did not open the register.   Amaro went to another room where an additional cash register was located and removed cash.   Awar estimated that approximately $25,000 was stolen from that register.   Both Richard and Amaro admitted committing the robbery.   Both admitted using guns and did not claim the guns were replicas.

g. May 22, 2007 robbery of Neptune Liquor.

On May 22, 2007, shortly before noon, Richard and Amaro robbed the Neptune Liquor Store located in the City of Wilmington.   Amaro walked in and asked the cashier, Margie De La Cruz, for milk.   Richard followed and asked for beer.   Richard then pointed a black gun at De La Cruz and told her not to move.   Amaro told customer Mayra Alvarez to stay put, while Richard pulled employee Nancy Choi to the back office by the hair.   Amaro had a “small short gun.”   Appellants stole cash and tequila.   The owner of the business, Cheul Huyuk Kim, estimated that approximately $3,000 was stolen during the robbery.   Richard and Amaro both admitted to detectives that they had committed the robbery.   Amaro claimed to have used a replica gun.

h. Check King robbery.

On the morning of June 8, 2007, Salome Torres was working at Check King, a check cashing business located inside a Food 4 Less grocery store located in Long Beach, when Richard entered alone and pointed a black gun at her.   Richard demanded “ ‘all your money,’ “ and Torres complied.   District Manager Debra Clouse later determined that $10,286 had been stolen in the robbery.   When interviewed by detectives, Richard eventually admitted he was the robber, but claimed he used a BB gun.   He estimated he had stolen approximately $4,000 to $5,000 during the robbery.

i. June 10, 2007 robbery of the Carson Market.

On June 10, 2007, shortly before 9:00 a.m., Richard robbed the Carson Market for a second time.   He put a gun to Martinez's head and attempted to force him to open the safe;  upon learning that Martinez was the butcher, Richard allowed him to leave.   During the robbery, less than $1,000 was taken.   Richard admitted committing the robbery.

j. Jamba Juice robbery.

Also on June 10, 2007, at approximately 9:20 a.m., Richard and an accomplice robbed a Jamba Juice store located in Long Beach.   Richard used a black gun approximately five to eight inches long, and took approximately $3,300.   Richard admitted to detectives that he committed the robbery with a man named Byron.   According to Richard, Byron purchased two black pellet guns to use during the robbery.

k. June 11, 2007 robbery of Neptune Liquor.

On June 11, 2007, Richard robbed the Neptune Liquor store a second time.   He demanded cash from Ana Llamas, the cashier, using a “square, black and brown” gun with a “very small” end.   Richard pointed the gun at Llamas and at customer Mahvash Sagun, and ordered them into the store's back office.   He took approximately $3,600 during the robbery.   Richard admitted to a detective that he committed the robbery, and claimed he had used a BB gun.   When interviewed, he did not know where the BB gun was.   An accomplice who pleaded guilty prior to trial admitted acting as a lookout during the robbery and observing Richard with a BB gun.

l. Cherry Liquor robbery.

Richard admitted to detectives that on June 16, 2007, he robbed the Cherry Liquor Store in Long Beach.   He used a BB gun and obtained a “couple hundred” dollars from the register.4

2. Procedure.

Appellants were tried together by a jury.   Amaro was convicted of nine counts of second degree robbery (§ 211) and three counts of false imprisonment by violence (§ 236).   Richard was convicted of 18 counts of second degree robbery (§ 211), 6 counts of false imprisonment by violence (§ 236), and 1 count of possession of a firearm by a felon (§ 12021, subd. (a)(1)).5  The trial court sentenced Amaro to a term of 22 years, 4 months in prison, and sentenced Richard to a term of 50 years.   As to each appellant, the court imposed a restitution fine, a suspended parole restitution fine, and court security fees.   Richard and Amaro appeal.

DISCUSSION

1. Sufficiency of the evidence to establish the section 12022.6 “great taking” enhancements.

Amaro asserts the evidence was insufficient to prove the aggregate value of the property taken in the robberies exceeded $50,000, requiring reversal of the true findings on the section 12022.6 “great taking” enhancements.   We conclude the evidence was sufficient.

When determining whether the evidence was sufficient to sustain a criminal conviction, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence––that is, evidence that is reasonable, credible and of solid value––from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citations.]”  (People v. Snow (2003) 30 Cal.4th 43, 66;  People v. Carrington (2009) 47 Cal.4th 145, 186–187;  People v. Halvorsen (2007) 42 Cal.4th 379, 419.)   We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.   (People v. Medina (2009) 46 Cal.4th 913, 919.)   Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’  [Citation.]”  (People v. Bolin (1998) 18 Cal.4th 297, 331;  People v. Zamudio (2008) 43 Cal.4th 327, 357.)

At the time the crimes were committed, section 12022.6 provided, in pertinent part, that whenever a person takes property in excess of $50,000 in the commission of a felony, he or she shall be punished for an additional year.6  Subdivision (b) of the statute provided that when an accusatory pleading charges multiple takings, the “additional terms provided in this section may be imposed if the aggregate losses to the victims from all felonies exceed” the specified amount and arose from a common scheme or plan.

(§ 12022.6, subd. (b).)

Here, the evidence established that at least $50,000 was taken by Amaro and Richard in the robberies they committed together.   Amaro, along with Richard, was convicted of robberies at the Carson Market on February 7, the South Bay Liquor store, the Villa Market, the OS Market, the A & D Liquor Store, and the Neptune Liquor Store on May 22.   Sam Chung, the owner of the Carson Market, explained that he usually kept from $20,000 to $30,000 on hand for the check cashing portion of the market's business.   The robbers took “the whole thing.”   Chung opined that although he did not know the exact amount taken, it was “maybe approximately $30,000.”   The South Bay Liquor store cashier, Sosa, testified that the robbers took between $400 to $700 from the cash register, $100 to $200 from his wallet, and two bottles of liquor worth $31.99 each.   The Villa Market's cashier, Flores, testified that she placed approximately $4,000 to $5,000 in the robbers' bag.   Hyon Jun Kim, an employee at the OS Market, testified that the market also operated a check cashing business;  money was kept on hand in the mornings, when customers would come in to cash checks;  and that “probably” $6,000 was taken during the robbery.   Awar, owner of the A & D Liquor store, approximated that the robbers took $25,000 from the business's second cash register.   Finally, the owner of Neptune Liquor, Cheul Huyuk Kim, testified that although he was not sure, approximately $3,000 was stolen.   Totaling these amounts, between $58,564 and $69,964 was taken in the robberies.7

Amaro, however, urges that the evidence was insufficient because the prosecution failed to offer into evidence “any bank records, cash receipts, or other documentary evidence” to establish the amounts taken, and the “casual estimates” of the witnesses were insufficient.   Amaro also points to evidence that he and Richard told police they took considerably less money than the victims estimated in several of the crimes.

Amaro offers no authority for the proposition that documentary evidence was required to prove the amounts stolen, or that estimates are inadequate for this purpose, and we are aware of none.   The testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to establish a fact.  (Evid.Code, § 411;  People v. Young (2005) 34 Cal.4th 1149, 1181;  People v. Hampton (1999) 73 Cal.App.4th 710, 722.)   There was nothing inherently improbable or physically impossible about the evidence given by the witnesses here.   The jury was obviously not required to credit appellants' statements about the amounts taken.   Indeed, Richard's statements were admittedly untruthful in many respects.   In particular, he told a detective that he “always lies[s] about the amount taken in these type [of] deals.”   The evidence was sufficient.

2. Sufficiency of the evidence to establish that the guns used in the Carson Market and Villa Market robberies were firearms.

The jury found that a principal was armed (§ 12022, subd. (a)(1)) during the robberies of Sam and Moon Chung at the Carson Market on February 7, 2007.   As to the Villa Market robbery, the jury found a principal was armed (§ 12022, subd. (a)(1)) and Richard personally used a firearm (§ 12022.53, subd (b)) during the robberies of Flores and Garcia and the false imprisonment of Pecson.8  It also convicted Richard of count 37, being a felon in possession of a firearm (§ 12021, subd. (a)(1)), based on his possession of a firearm during the Villa Market robbery.

Appellants argue that the evidence was insufficient to support the firearm enhancements and Richard's conviction in count 37 because there was an insufficient showing that real firearms, as opposed to replica, toy, or BB guns, were used in the Villa Market robbery and the first Carson Market robbery.   We disagree.

As used in sections 12022.53 and 12022, subdivision (a)(1), “ ‘firearm’ “ means “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” (§ 12001, subd. (b);  People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435.)   Toy guns, pellet guns, and BB guns do not qualify as firearms for purposes of these statutes.  (People v. Monjaras, supra, at p. 1435;  People v. Dixon (2007) 153 Cal.App.4th 985, 1001.)

Circumstantial evidence alone is sufficient to establish that an object used by a robber was a firearm.  (People v. Monjaras, supra, 164 Cal.App.4th at p. 1436.)   The prosecution need not produce the weapon;  “[t]estimony by witnesses who state that they saw what looked like a gun, even if they cannot identify the type or caliber, will suffice.”  (People v. Aranda (1965) 63 Cal.2d 518, 532.)   In Monjaras, the defendant demanded the victim's purse and pulled up his shirt, displaying the handle of a black pistol tucked in his waistband.  (People v. Monjaras, supra, at p. 1436.)   The victim testified that she assumed it was a gun, but could not say whether it was real or a fake.  (Ibid.) The court affirmed the firearm enhancement, holding:  “Simply stated, when as here a defendant commits a robbery by displaying an object that looks like a gun, the object's appearance and the defendant's conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm within the meaning of section 12022.53, subdivision (b).  In other words, the victim's inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm.”  (People v. Monjaras, supra, at p. 1437.)

Here, the witnesses to the first Carson Market robbery testified that a man wearing a ski mask pointed a small black gun at a customer, and then at employees Martinez and Medina while ordering them to their knees.   Martinez, who was familiar with handguns, testified that he got a good look at the black gun, including the size of the barrel opening, and it did not look like a pellet gun to him.   The robber also pointed the gun at Moon and Sam and forced them to open the cash register.   Witnesses observed that another one of the robbers was armed with a silver revolver.   When interviewed by police, Richard stated that one of his three accomplices had been armed with “a chrome .357 revolver.”   Thus, as to the Carson Market robbery, Richard's admission, as well as the testimony of the witnesses regarding the guns and the robbers' conduct and words, constituted ample evidence that a principal was armed with a firearm during commission of the crimes.

Similarly, as to the Villa Market robbery, the witnesses testified that Amaro was armed with a small black handgun, and Richard had a silver gun.   Richard pointed the gun at Flores, the cashier, and threatened to kill her if she did not give him the store's money;  Amaro pointed his gun at the other persons present, forced them to get to the floor, and threatened to kill them if they called police.   This testimony about appellants' conduct and statements during the incident was sufficient circumstantial evidence to establish that the guns in question were firearms within the meaning of sections 12022.53, 12021, and 12022.   As explained by Monjaras, “the robbery was real, and the evidence supports a reasonable inference that the pistol ․ was a real firearm, not a toy.”  (People v. Monjaras, supra, 164 Cal.App.4th at p. 1435.)   Additionally, police found a box of .22–caliber ammunition in Amaro's house when they searched it, providing circumstantial evidence that he used a real firearm in at least some instances.

Appellants' arguments to the contrary are unavailing.   Appellants point out that they told detectives that the silver revolver was a fake and the dark revolver was a replica gun;  their purported modus operandi during the string of robberies was to use toy or BB guns, suggesting they followed this pattern in the Villa Market and Carson Market robberies;  the People's expert was unable to conclusively state, based on photographs, whether the guns were real;  and the jury purportedly rejected firearm enhancements on counts for which the evidence of firearm use was no better, or in one case even stronger, than that in the Villa Market and Carson Market crimes.   These arguments amount to nothing more than a request that this court reweigh the evidence, which is not our function.  (People v. Young, supra, 34 Cal.4th at p. 1181;  People v. Maury (2003) 30 Cal.4th 342, 403.)   Amaro's contention that “the determination as to whether an object is a firearm is deserving of the same requirements of proof as narcotics” is unpersuasive.   Such is not the law.   (People v. Monjaras, supra, 164 Cal.App.4th at p. 1435;  People v. Aranda, supra, 63 Cal.2d at p. 532.)   Neither People v. Burney (2009) 47 Cal.4th 203, nor People v. Ramirez (1979) 93 Cal.App.3d 714, 730–732, cited by appellants, assist their argument.   The evidence was sufficient.

3. Defective verdict forms.

After several amendments, appellants were eventually charged with the personal use of a dangerous or deadly weapon pursuant to section 12022, subdivision (b)(1) on counts 6, 12, 17, 18, 20, 21, 22, 23, 32, 34, 35 and 36 (Richard) and 6, 12, 17, 18, and 21 (Amaro).   Section 12022, subdivision (b)(1) provides:  “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.”   As the statutory language suggests, “[t]he weapon enhancement under ․ section 12022, subdivision (b), requires personal use, i.e., the jury must find beyond a reasonable doubt that defendant personally used the [weapon] to find the enhancement true.”  (People v. Santamaria (1994) 8 Cal.4th 903, 918.)

The verdict forms used here, however, did not ask the jury to find either appellant “personally used” a deadly or dangerous weapon.   Instead, the relevant portion of each verdict form read:  “We further find the allegation that in the commission and attempted commission of the above offense, a person personally used a deadly or dangerous weapon, within the meaning of Penal Code Section 12022(b)(1) to be _.” (Italics added.)   Appellants contend that because the verdict forms do not demonstrate the jury found personal use of a deadly or dangerous weapon, the enhancements cannot stand.   They point out that the instructions given to the jury did not suffice to correct the problem.   The versions of CALJIC No. 17.16 read to the jury and provided to the jury in writing differed in minor respects;  both, however, referenced the enhancement allegation in both the plural (“defendants”) and the singular.9

The People argue, first, that because no objection was made to the verdict forms below, either at the time they were submitted to the jury or when the verdict was rendered, appellants have forfeited the issue.  (People v. Bolin, supra, 18 Cal.4th at

p. 330;  People v. Jones (2003) 29 Cal.4th 1229, 1259.)   We disagree.   Unlike in the cases cited by the People, here the verdict form was not merely potentially ambiguous regarding the theory of guilt, or flawed due to a typographical error in a statute number.   Instead, the language of the verdict forms was flawed because the jury could have found the enhancement true if any “person,” that is, an accomplice, used a weapon during the crimes.   Thus, the language used potentially allowed the jury to find the enhancement true if it concluded a principal was armed in the crimes, even if the defendant did not personally use a weapon.   Under these circumstances, where appellants' substantial rights may have been effected, we may review the issue even in the absence of an objection below. (§ 1259.)   Accordingly, we consider the merits of the issue.

The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed.  (People v. Camacho (2009) 171 Cal.App.4th 1269, 1272–1273;  People v. Jones (1997) 58 Cal.App.4th 693, 710.)   A verdict must be given “ ‘ “a reasonable intendment and be construed in light of the issues submitted to the [finder of fact] and the instructions of the court.”  ‘ “ (People v. Jones, supra, at p. 710;  People v. Camacho, supra, at p. 1272.)   Technical defects or clerical errors in a verdict may be disregarded if the jury's intent to convict of a specified offense is unmistakably clear, and the accused's substantial rights suffered no prejudice.  (People v. Bolin, supra, 18 Cal.4th at p. 331;  People v. Camacho, supra, at p. 1272.)

Applying these precepts here, we conclude the jury's intent to find personal use of a weapon is unmistakably clear in most, but not all, instances in which the flawed verdict form was employed.   Accordingly, we examine the record on each challenged count to determine whether the jury's intent can be inferred and whether any error was harmless.

a. South Bay Liquor robbery.

As Amaro and the People agree, there was no evidence that Amaro personally used a weapon during the robbery of Sosa at the South Bay Liquor store.   The victim testified that only one robber, Richard, had a gun.   Richard admitted to police that he used a replica gun during the crime.   The victim testified that Amaro did not have a gun.   Thus, as to Amaro, the jury apparently interpreted the verdict form as appellants suggest, and found the enhancement true because “a person”––that is, codefendant Richard––was armed.   Because the evidence was insufficient and the jury likely did not intend to find Amaro personally used a weapon, the enhancement must be stricken.

On the other hand, the jury clearly intended to find Richard personally used a weapon during the robbery.   The evidence showed the robbery was committed by Amaro and Richard together;  the victim testified Richard used a gun;  and Richard admitted using a replica handgun during the robbery.   Under these circumstances, the jury's intent to find Richard personally used a weapon is unmistakable.  (See People v. Camacho, supra, 171 Cal.App.4th at pp. 1272–1273;  People v. Jones, supra, 58 Cal.App.4th at p. 710;  see generally People v. Dixon, supra, 153 Cal.App.4th at p. 1001.)   For the same reasons, the flaw in the verdict form is harmless beyond a reasonable doubt as to Richard.  (See People v. Jones, supra, 29 Cal.4th at p. 1260.)

b. OS Market robbery.

Our analysis is identical as to the OS Market robbery, count 12.   The jury found the enhancement true as to both Amaro and Richard, but as the People concede, there was no evidence Amaro used a weapon.   The robbery was committed by Amaro and Richard.   Richard admitted using a BB gun, and the witness's testimony was that Richard alone used a gun.   Therefore, the section 12022, subdivision (b)(1) enhancement on this count, as well as on count 6, must be stricken as to Amaro but not as to Richard.10

c. Neptune Liquor.

Counts 17, 18, 20, and 21 related to the May 22, 2007 robbery at Neptune Liquor.   In counts 17, 18, and 21 both appellants were found guilty of the robberies of De La Cruz and Choi, and the false imprisonment of Alvarez, respectively.   A section 12022, subdivision (b)(1) enhancement was found true as to both defendants on each count, with the verdict forms using the flawed language discussed ante.   The jury deadlocked on the allegation, appended to counts 17 and 18, that Amaro personally used a firearm within the meaning of section 12022.53, subdivision (b).  In count 20, both defendants were found guilty of false imprisonment by violence of Choi and a section 12022, subdivision (b)(1) enhancement was found true as to Richard;  the verdict form pertaining to Amaro contained no section 12022, subdivision (b)(1) allegation.   The jury deadlocked on the allegation in count 20 that Amaro personally used a handgun within the meaning of section 12022.5, subdivisions (a) and (d).

Amaro and Richard were the only two perpetrators in the May 22, 2007 Neptune Liquor robbery.   Witnesses described Amaro's use of a “small short gun” and Richard's use of a black gun.   Amaro told a detective that his gun was a replica gun.   Based on the evidence and the jury's verdicts, the only reasonable conclusion is that the jury found both men had weapons but the evidence did not establish Amaro's weapon was a real firearm.   Under these circumstances, the jury's intent to find both men personally used a weapon, although not necessarily a firearm, is unmistakable.  (See People v. Camacho, supra, 171 Cal.App.4th at pp. 1272–1273;  People v. Jones, supra, 58 Cal.App.4th at

p. 710;  People v. Dixon, supra, 153 Cal.App.4th at p. 1001.)   For the same reasons, the flaw in the verdict form is harmless beyond a reasonable doubt.   (See People v. Jones, supra, 29 Cal.4th at p. 1260.)

d. Check King.

In counts 22 and 23, Richard was convicted of the Check King robbery and the false imprisonment of the cashier, Torres;  section 12022, subdivision (b)(1) enhancements were found true.   The jury deadlocked on both counts as to Amaro.   The evidence showed that Richard alone entered and held up the store, using a gun.   Thus, despite the flawed verdict form, the jury's intent is unmistakable:  only Richard was present in the Check King store, and only Richard was convicted of the robbery and false imprisonment counts.   As Richard was the only “person” in question, the jury clearly intended to find he personally used a dangerous or deadly weapon.  (See People v. Camacho, supra, 171 Cal.App.4th at pp. 1272–1273;  People v. Jones, supra, 58 Cal.App.4th at p. 710;  People v. Bolin, supra, 18 Cal.4th at p. 331.)

e. Second Neptune Liquor robbery and Cherry Liquor robbery.

Likewise, in counts 32 and 34, Richard was found guilty of the robbery of Llamas and the false imprisonment of Sagun during the second Neptune Liquor robbery.   In counts 35 and 36 Richard alone was charged with, and found guilty of, the robberies of Huot and Leang Tang in the Cherry Liquor incident.   Section 12022, subdivision (b)(1) enhancements were found true on all four counts.   Because Richard was the only defendant at trial who was charged with these crimes, and therefore the only “person” to whom the verdict form could have referred, the flaw in the language was merely a technical defect.   The jury's intent to find he personally used a weapon is unmistakable.  (See People v. Camacho, supra, 171 Cal.App.4th at pp. 1272–1273;  People v. Jones, supra, 58 Cal.App.4th at p. 710;  People v. Bolin, supra, 18 Cal.4th at p. 331.)

4. Prior prison term enhancements.

Both appellants contend that the trial court erred by imposing multiple one-year section 667.5 prison term enhancements on terms that were served concurrently.   The People concede the point, and we agree.   Only one section 667.5, subdivision (b) enhancement is proper where concurrent sentences have been imposed in two or more prior felony cases.  (People v. Jones (1998) 63 Cal.App.4th 744, 747;  People v. Ruiz (1996) 44 Cal.App.4th 1653, 1669;  People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610 [there was only one prior separate prison term under section 667.5, where the terms were ordered to run concurrently];  People v. Burke (1980) 102 Cal.App.3d 932, 942–944.)   Terms served over a continuous time period, whether concurrent or consecutive, are not separate terms for purposes of section 667.5.

Here, Amaro was charged with three prior section 667.5, subdivision (b) enhancements.   The trial court found the allegations true, and imposed three consecutive one-year enhancements as a result.   However, as the People point out, the record shows the sentences in two of the prior cases were ordered to run concurrently to the first.   Accordingly, only a single one-year enhancement should have been imposed.   We order the judgment modified accordingly.

Likewise, Richard was charged with five prior convictions pursuant to section 667.5.   The court found the allegations true and imposed five consecutive one-year terms.   The record shows that three of the prior convictions were served concurrently.   Thus, two of the section 667.5, subdivision (b) enhancements must be stricken.   We order the judgment modified accordingly.

5. Correction of the abstracts of judgment.

The parties contend that the abstracts of judgment contain a variety of clerical errors and must be corrected to conform to the jury's verdicts and the sentence imposed by the trial court.   We agree, and order the judgments modified accordingly as set forth post.  (See People v. Mitchell (2001) 26 Cal.4th 181, 185;  People v. Garcia (2008) 162 Cal.App.4th 18, 24, fn. 1.)

a. Appellant Amaro.

The record contains the following clerical errors as to appellant Amaro.   The minute order and the abstract of judgment erroneously state that the enhancements in counts 17, 18, and 21 were imposed pursuant to section 12022, subdivision (a)(1), whereas the correct subdivision is (b)(1).   On count 9, the abstract reflects that Amaro was convicted of second degree robbery (§ 211), whereas he was actually convicted of false imprisonment by violence on that count (§ 236).   On count 13, the abstract shows imposition of a section 12022, subdivision (a)(1) enhancement, when in fact the jury deadlocked on this allegation.

On count 20, the abstract and the minute order erroneously reflect that Amaro was convicted of kidnapping to commit another crime (§ 209, subd. (b)(1)).   In fact, Amaro was acquitted of that count and found guilty of the lesser included offense of false imprisonment by violence (§ 236).   The abstract additionally omits the stayed section 12022.6, subdivision (a)(1) great taking enhancement, but erroneously adds a section 12022, subdivision (a)(1) enhancement.

b. Appellant Richard.

Richard's abstract of judgment contains the following clerical errors.   On count 9, it erroneously reflects that the firearm enhancement was imposed pursuant to section 12022.53, subdivision (b), whereas the enhancement was actually imposed pursuant to section 12022.5, subdivisions (a) and (d).  On count 6, the abstract erroneously shows that an enhancement was imposed pursuant to section 12022, subdivision (a)(1), whereas the correct reference was to section 12022, subdivision (b)(1).   Finally, sentence was stayed on counts 20 and 23 pursuant to section 654;  the abstract erroneously fails to reflect the stay.

DISPOSITION

As to appellant Amaro, the Penal Code section 12022 enhancements on counts 6 and 12, and the four-month terms imposed for each enhancement, are ordered stricken.   Two of the one-year enhancements for service of a prior prison term pursuant to section 667.5, subdivision (b), and the resultant one-year terms, are likewise ordered stricken.   On counts 17, 18, and 21, the abstract of judgment and the minute order shall be corrected to reflect that the arming enhancements were imposed pursuant to section 12022, subdivision (b)(1) rather than subdivision (a)(1).   On count 20, the abstract of judgment and the minute order are to be modified to (1) show Amaro was convicted of false imprisonment by violence (§ 236), not kidnapping to commit another crime (§ 209, subd. (b)(1));  (2) add a section 12022.6, subdivision (a)(1) enhancement, with sentence stayed pursuant to section 654;  and (3) omit the reference to the section 12022, subdivision (a)(1) enhancement.   The abstract of judgment shall further be modified to show that on count 9, Amaro was convicted of false imprisonment by violence (§ 236), not second degree robbery (§ 211).   On count 13, the section 12022, subdivision (a)(1) enhancement shall be deleted.

As to appellant Richard, two of the one-year enhancements for service of a prior prison term pursuant to Penal Code section 667.5, subdivision (b), and the resultant one-year terms, are ordered stricken.   The following corrections shall be made to the abstract of judgment:  (1) on count 9, the enhancement was imposed pursuant to section 12022.5, subdivisions (a) and (d), not 12022.53, subdivision (b);  (2) on count 6, the enhancement was imposed pursuant to section 12022, subdivision (b)(1), not subdivision (a)(1);  and (3) sentence was stayed pursuant to section 654 on counts 20 and 23.   The clerk of the superior court is directed to prepare amended abstracts of judgment reflecting the foregoing and forward copies to the Department of Corrections.   In all other respects, the judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Penal Code..  FN1. All further undesignated statutory references are to the Penal Code.

FN2. For ease of reference, we hereinafter sometimes refer to the Chungs by their first names..  FN2. For ease of reference, we hereinafter sometimes refer to the Chungs by their first names.

FN3. Martinez also sometimes used the last name Avilla..  FN3. Martinez also sometimes used the last name Avilla.

FN4. Although witnesses testified regarding the Cherry Liquor robbery, the record does not contain those portions of the trial.   In response to Richard's motion to augment, the reporter certified that no record of the missing transcript could be found.   Fortunately, the missing portion of the transcript is not crucial to the issues presented on appeal..  FN4. Although witnesses testified regarding the Cherry Liquor robbery, the record does not contain those portions of the trial.   In response to Richard's motion to augment, the reporter certified that no record of the missing transcript could be found.   Fortunately, the missing portion of the transcript is not crucial to the issues presented on appeal.

FN5. The trial court dismissed counts 3, 14, 15, 16, 27, 30, 33, 40, 42, 44, and 46 in the interests of justice.   The court struck various enhancement allegations and made a number of amendments to the information.   The jury deadlocked, and a mistrial was declared, on counts 22, 23, and 38 as to Amaro;  and on counts 39, 41, and 47 as to Richard..  FN5. The trial court dismissed counts 3, 14, 15, 16, 27, 30, 33, 40, 42, 44, and 46 in the interests of justice.   The court struck various enhancement allegations and made a number of amendments to the information.   The jury deadlocked, and a mistrial was declared, on counts 22, 23, and 38 as to Amaro;  and on counts 39, 41, and 47 as to Richard.

FN6. The statute was amended effective January 2008 to increase the amount from $50,000 to $65,000.  (Stats.2007, ch. 420 § 1.).  FN6. The statute was amended effective January 2008 to increase the amount from $50,000 to $65,000.  (Stats.2007, ch. 420 § 1.)

FN7. Richard does not separately argue the evidence was insufficient on this point, but “adopts all arguments of appellant ․ Amaro that are applicable” to him.   It is not clear whether he intends to join Amaro's argument regarding the sufficiency of the evidence to establish the great taking amount.   Assuming arguendo that he does, as we have explained the evidence was sufficient to establish the enhancement even when considering only those robberies in which both appellants participated.   Richard committed numerous additional robberies, including those of Check King ($10,286), a second robbery of the Carson Market, Jamba Juice ($3,300), and a second robbery of Neptune Liquor ($3,600).   The evidence was manifestly sufficient to prove he took over $50,000..  FN7. Richard does not separately argue the evidence was insufficient on this point, but “adopts all arguments of appellant ․ Amaro that are applicable” to him.   It is not clear whether he intends to join Amaro's argument regarding the sufficiency of the evidence to establish the great taking amount.   Assuming arguendo that he does, as we have explained the evidence was sufficient to establish the enhancement even when considering only those robberies in which both appellants participated.   Richard committed numerous additional robberies, including those of Check King ($10,286), a second robbery of the Carson Market, Jamba Juice ($3,300), and a second robbery of Neptune Liquor ($3,600).   The evidence was manifestly sufficient to prove he took over $50,000.

FN8. The jury found the allegation that Amaro personally used a firearm during the Carson Market robbery (§ 12022.53, subd. (b)) not true.   It deadlocked on allegations that Amaro personally used a firearm in the Villa Market robbery (§ 12022.53, subd. (b))..  FN8. The jury found the allegation that Amaro personally used a firearm during the Carson Market robbery (§ 12022.53, subd. (b)) not true.   It deadlocked on allegations that Amaro personally used a firearm in the Villa Market robbery (§ 12022.53, subd. (b)).

FN9. For example, the instruction read to the jury stated:  “It is further alleged that in some of the counts in the commission of the felony ․, the defendant personally used a deadly or dangerous weapon within the meaning of Penal Code section 12022(b)(1).   If you find the defendant is guilty of the crimes thus charged ․, you must determine whether the defendants personally used a deadly or dangerous weapon in the commission of those crimes.”  (Italics added.)   The written version stated:  “It is alleged in [specified counts,] that in the commission of the felony [or attempted felony] charged, the defendant[s] personally used a deadly or dangerous weapon within the meaning of [Penal Code section] 12022(b)(1).  [¶] If you find the defendant[s] guilty of the crime[s] thus charged ․, you must determine whether the defendant[s] personally used a deadly or dangerous weapon in the commission of [those] crime[s].  [¶] ․ [¶] The term ‘personally used a deadly or dangerous weapon,’ as used in this instruction, means the defendant must have intentionally displayed a weapon in a menacing manner or intentionally fired it or intentionally struck or hit a human being with it.”  (Italics added.).  FN9. For example, the instruction read to the jury stated:  “It is further alleged that in some of the counts in the commission of the felony ․, the defendant personally used a deadly or dangerous weapon within the meaning of Penal Code section 12022(b)(1).   If you find the defendant is guilty of the crimes thus charged ․, you must determine whether the defendants personally used a deadly or dangerous weapon in the commission of those crimes.”  (Italics added.)   The written version stated:  “It is alleged in [specified counts,] that in the commission of the felony [or attempted felony] charged, the defendant[s] personally used a deadly or dangerous weapon within the meaning of [Penal Code section] 12022(b)(1).  [¶] If you find the defendant[s] guilty of the crime[s] thus charged ․, you must determine whether the defendant[s] personally used a deadly or dangerous weapon in the commission of [those] crime[s].  [¶] ․ [¶] The term ‘personally used a deadly or dangerous weapon,’ as used in this instruction, means the defendant must have intentionally displayed a weapon in a menacing manner or intentionally fired it or intentionally struck or hit a human being with it.”  (Italics added.)

FN10. The people acknowledge the evidentiary insufficiency on counts 6 and 12, but urge that the enhancement should be “reduced to the lesser included section 12022, subdivision (a)(1) enhancement,” that is, personal use of a firearm by a principal.   Amaro counters that such a reduction is improper when an enhancement, rather than an offense, is at issue.   We do not reach this issue because we agree with Amaro that use of a firearm by a principal under section 12022, subdivision (a)(1) is not a “lesser included enhancement” of personal use of a dangerous or deadly weapon under section 12022, subdivision (b)(1).   A lesser offense is necessarily included in a greater offense if the statutory elements of the greater offense include all the elements of the lesser offense, so that the greater cannot be committed without also committing the lesser.  (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)   A section 12022, subdivision (b)(1) enhancement applies when the defendant personally uses a dangerous or deadly weapon during commission of a felony.   Subdivision (a)(1) of the statute provides for an enhancement when a principal in a crime is armed with a firearm.   A defendant could be subject to the “greater” subdivision (b)(1) enhancement if he or she personally used a dangerous or deadly weapon other than a firearm;  the “lesser” subdivision (a)(1) enhancement would not apply under these circumstances.   Therefore, the subdivision (a)(1) enhancement is not a “lesser” enhancement to that in subdivision (b)(1).  (See People v. Montoya, supra, at p. 1034.).  FN10. The people acknowledge the evidentiary insufficiency on counts 6 and 12, but urge that the enhancement should be “reduced to the lesser included section 12022, subdivision (a)(1) enhancement,” that is, personal use of a firearm by a principal.   Amaro counters that such a reduction is improper when an enhancement, rather than an offense, is at issue.   We do not reach this issue because we agree with Amaro that use of a firearm by a principal under section 12022, subdivision (a)(1) is not a “lesser included enhancement” of personal use of a dangerous or deadly weapon under section 12022, subdivision (b)(1).   A lesser offense is necessarily included in a greater offense if the statutory elements of the greater offense include all the elements of the lesser offense, so that the greater cannot be committed without also committing the lesser.  (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)   A section 12022, subdivision (b)(1) enhancement applies when the defendant personally uses a dangerous or deadly weapon during commission of a felony.   Subdivision (a)(1) of the statute provides for an enhancement when a principal in a crime is armed with a firearm.   A defendant could be subject to the “greater” subdivision (b)(1) enhancement if he or she personally used a dangerous or deadly weapon other than a firearm;  the “lesser” subdivision (a)(1) enhancement would not apply under these circumstances.   Therefore, the subdivision (a)(1) enhancement is not a “lesser” enhancement to that in subdivision (b)(1).  (See People v. Montoya, supra, at p. 1034.)

KLEIN, P. J. CROSKEY, J.