P. v. Badajoz

Filed 11/4/09 P. v. Badajoz CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Dewey Lawes Falcone, Judge. Affirmed in part, vacated in part, and remanded with directions.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Appellant Juan Jose Badajoz appeals from the judgment entered following his convictions by jury on count 2 attempted murder (Pen. Code, 664, 187) and

count 3 second degree robbery (Pen. Code,  211) with, as to each offense, personal use of a firearm (Pen. Code,  12022.53, subd. (b)), personal and intentional discharge of a firearm (Pen. Code, 12022.53, subd. (c)), personal and intentional discharge of a firearm causing great bodily injury (Pen. Code, 12022.53, subd. (d)), and personal infliction of great bodily injury (Pen. Code,  12022.7, subd. (a)), on count 4 second degree robbery (Pen. Code,  211) with personal use of a firearm (Pen. Code,  12022.53, subd. (b)), personal and intentional discharge of a firearm (Pen. Code, 12022.53, subd. (c)), and personal and intentional discharge of a firearm causing great bodily injury (Pen. Code, 12022.53, subd. (d)), and on count 5 assault with a firearm (Pen. Code,  245, subd. (a)(2)) and count 6 false imprisonment by violence (Pen. Code,  236) with, as to each of counts 5 and 6, personal use of a firearm (Pen. Code,  12022.5, subd. (a)), and following appellants plea of no contest to count 14 second degree robbery (Pen. Code,  211) with an admission that he personally used a firearm (Pen. Code,  12022.5, subd. (a)). The court sentenced appellant to prison. We will vacate appellants sentence and remand for resentencing to permit the trial court to clarify its sentence as to count 2, but we otherwise affirm the judgment with directions.

FACTUAL SUMMARY

1. Peoples Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that, a few months before January 2006, Juan Pantoja lived in Montebello and appellant lived next door. Francisco Espino was a friend and employee of Pantoja. On January 7, 2006, while Pantoja and Espino were at Pantojas business, appellant and Espino talked in Pantojas presence about committing robbery. Pantoja told Espino not to go, but Espino did not listen.

On January 7, 2006, Sung Lee (Sung) and his wife, Young Lee (Young), owned a Huntington Park market which normally closed at 7:00 p.m. About 6:45 p.m., Young was at the stores cash register and Sung was in the stores office. A customer, Maria Villagomez, was leaving the store.

Appellant and Espino entered the store. Appellant threatened to kill Villagomez and forced her at gunpoint to go back into the store. Villagomez walked to a shelf and lied down under it. She heard persons demanding money.

Appellant or Espino sprayed Youngs face with pepper spray. Young opened the cash registers and crouched, and appellant or Espino repeatedly kicked her. Appellant or Espino entered the stores office and sprayed Sungs face with pepper spray. Sung pushed someone out of his office, closed and barricaded its door, and asked if Young was all right. Sung later left the office, barely able to see, but he saw someone in front of him.

Sung heard a gunshot, got his gun, and fired in the direction of the person in front of him. Young remained crouched behind the counter. Sung and Espino were shot. Espino was mortally wounded. An inoperable .25-caliber gun was in Espinos pants pocket. The stores video camera recorded the incident.

Later on the night of January 7, 2006, Pantoja saw appellant and another person. Appellant and the other person appeared to be nervous and appellant said the following. Things did not work out as they had planned. Espino was not paying attention. The robbery already had occurred, and appellant and Espino were leaving the store when they heard gunshots. The Chinese man fired on them and hit Espino. The Chinese man fired at Espino first. Appellant fired at the Chinese man for Espinos protection. Appellant shot the Chinese man on purpose.[1]

2. Defense Evidence.

In defense, appellant testified as follows. Appellant was involved in the above robbery at the Lees store. He lost his head and did not know why he had been involved. The robbery was not planned. Appellant did not select the store to rob it, it just happened. Appellant did not discuss in front of Pantoja committing a robbery with Espino.

According to appellant, he and Espino were driving around drinking beer and Espino suggested they rob the store. Appellant did not know Espino had guns when they were driving to the store. Appellant knew Espino would commit a robbery but did not know appellant would participate until Espino said that appellant needed to help. About five minutes before the robbery, Espino showed appellant guns that were under the car seat.

When appellant entered the store he protected a woman by telling her to go and hide. Appellant did not know why he did not let her leave. Espino had given a gun to appellant, but appellant did not know what kind of gun it was because he did not know about weapons. Appellant entered the store and was armed with a very big gun that he did not know how to operate. Appellant knew how to pull the trigger.

Appellant denied remembering taking money out of the cash register. He then testified he did not take money out of the register. Appellant then testified that he took money, but did not keep it to himself and, instead, threw it to Espino. Appellant also testified he was trying to remember whether he took money from the register. Appellant had his gun in his pocket while taking money from the register.

Appellant admitted going behind the stores counter. Appellant went behind the counter only at the end of the robbery when he told Espino, Let[s] get out of here. Appellant also testified he never went behind the counter during the robbery. He then testified he was sure and it was . . . when I [got] up onto the counter and grabbed some money and threw it over to Espino. Appellant further testified he went behind the counter during the robbery because he wanted to leave. Appellant denied entering Sungs office.

The prosecutor showed appellant video footage of the incident. The video depicted appellant taking money out of the cash register and then taking items off a shelf and placing them in a bag. The prosecutor asked appellant if it was correct that appellant continued taking items not belonging to him, and that appellant was not merely telling Espino, Lets get out of here. Appellant replied, [b]ecause I wanted him to hurry up, because I wanted to get out of there.

After appellant threw the money to Espino, appellant said that appellant and Espino should leave. Appellant left the store. Sung raised his gun and fired. Appellant was standing outside the store at that time, but his hand was inside the store. Appellant looked away as he raised his hand.

Appellant also testified that after appellant exited the store, he heard someone say no. Appellant turned around, then heard shots. Espino was involved in a gunfight, and Sung fired at appellant. Appellant did not know what to do. He was in fear for his life. He did not run because he was stunned. Appellant raised his gun on impulse.

Appellant also testified that he raised his arm on purpose after Sung fired his gun. Appellant did not point his gun at Sung. Appellant did not know where he pointed his gun. He was looking away when pointing the gun. However, appellant also testified that he raised his arm when Sung was firing at appellant, and that appellant fired at Sung when Sung fired at appellant. Everything happened quickly. Appellant further testified that appellant did not do anything to return fire.

According to appellant, his gun discharged accidentally by itself. However, the following occurred: Q You did not fire that gun because you were scared for Mr. Espino? [] A No. I actually fired for my life. Appellant pointed the gun at the store on purpose, but did not fire the gun on purpose. After the gunfire, appellant ran back to the car.

Pantoja was a drug dealer. After the robbery, appellant told Pantoja that appellant and Espino entered the store, Espino was robbing it, appellant told Espino, [L]ets get out of here, but Espino did not pay attention so appellant left him. Appellant exited the store and heard someone scream no. Appellant turned around and saw Sung point his weapon at Espino and fire it. Appellant did not tell Pantoja that appellant purposefully shot Sung, and did not tell Pantoja that appellant shot Sung because appellant was angry that Sung fired at Espino. The parties stipulated that a detectives supervisor reviewed the videotape of the robbery and shooting and determined that Sung shot Espino before appellant fired his weapon.

3. Rebuttal Evidence.

A detective interviewed appellant at the police station. Appellant admitted to the detective that appellant had directed Espino and another person where to drive so they could rob the store. Espino asked appellant to tell Espino where appellants family kept their money so Espino could rob them and share the loot with appellant. Appellant refused, but said he knew a market they could rob. According to appellant, Sung fired his gun, things went wrong, and appellant fired one bullet at Sung. Appellant said he thought the bullet struck Sung. After entering a getaway car, appellant tried to contact Espino over a cell phone. The detective testified that appellant never said he fired his gun in fear for his life or that the gun discharged accidentally. We will present additional facts where pertinent below.

CONTENTIONS

Appellant claims (1) his sentence on count 2 is erroneous, (2) the trial court was unaware of its discretion to impose concurrent sentences on counts 2 through 4, (3) the trial court erred by giving CALJIC No. 2.62 to the jury, and (4) imposition of consecutive sentences on counts 2 through 5 violated appellants right to a jury trial.

DISCUSSION

1. Remand is Appropriate to Permit the Trial Court To Clarify Its Sentence on Count 2.

a. Pertinent Facts.

The following facts are undisputed. As to count 2, appellant was charged and tried by the People for the attempted murder of Sung, not attempted willful, deliberate, and premeditated murder. In particular, as to count 2, the amended information alleged attempted murder, and did not allege that the offense was willful, deliberate, or premeditated (hereafter, premeditated). During jury argument, the prosecutor argued as to count 2 that appellant committed attempted murder, but the prosecutor did not refer to premeditated attempted murder.[2] The court, using CALJIC No. 8.66, instructed on attempted murder, but not on premeditated attempted murder. The jury convicted appellant on count 2 as alleged in the information, i.e., an amended information alleging attempted murder, but not premeditated attempted murder.

The probation report reflected appellant was convicted on count 2 of attempted murder, and did not refer to premeditated attempted murder. The Peoples sentencing memorandum indicated, as to count 2, in pertinent part, that appellant committed attempted murder and that the sentencing range was five, seven, or nine years. In his motion for a new trial and sentencing memorandum, appellant argued attempted murder required intention, deliberation and premeditation, and even if appellant had the requisite intent, he lacked premeditation or deliberation. The Peoples written opposition stated, inter alia, The prosecution never contended or alleged in the information that the attempted murder was willful, deliberate and premeditated pursuant to [P]enal [C]ode section 664 [subdivision] (a).

Following argument on appellants motion for a new trial, the court indicated it would turn to count 2 which is the attempted murder of [Sung] with the enhancements. The court discussed the instruction pertaining to attempted murder. The court later concluded there was substantial evidence to support the jurys finding of attempted murder as to count 2 and denied appellants motion for a new trial as to that count.

Later, during sentencing, the court commented that the jury convicted appellant of, inter alia, count 2, attempted murder of Sung Lee finding true as to that count the [Penal Code section] 12022.7 [subdivision] (a), as well as the [Penal Code section] 12022.53 [subdivisions] (b), (c), and (d). The court indicated it had considered the probation report and the parties sentencing memoranda. The court later stated, in pertinent part, Going to count 2 which is the court selects as the principal count, the [Penal Code sections] 664/187 as to Sung Lee, the court selects the mid term of seven years as to that count. Seven years to life. The [Penal Code section] 12022.53 [subdivision] (d) consecutive to that 25 years to life as mandated by that code section for a total as to count 2 of 32 years to life. (Sic.) The sentencing minute order and abstract of judgment reflect the court imposed a sentence of seven years to life on count 2.

b. Analysis.

Appellant claims his sentence on count 2 is erroneous because the trial court erroneously sentenced him to prison for seven years to life for premeditated attempted murder instead of sentencing him to prison for a determinate middle term of seven years for unpremeditated attempted murder.[3]

We have recited the pertinent facts which indicate count 2 was alleged and tried as a count involving unpremeditated attempted murder, and the People never referred to premeditated attempted murder. Moreover, there is no dispute the trial court could not properly have sentenced appellant for premeditated attempted murder since that offense was neither charged, admitted, nor found true. Those facts, coupled with the presumption that the trial court is presumed to have been aware of the law (People v.Mosley (1997) 53 Cal.App.4th 489, 496; Evid. Code, 664) militate toward a conclusion that the trial court intended to impose a determinate middle term of seven years on count 2, and did not intend to impose an indeterminate term of life with the possibility of parole with a minimum parole eligibility term (MPET) of seven years. We note in this regard that the trial court referred to count 2 as the principal count and imposed consecutive subordinate terms on counts 3 through 5. This treatment of count 2 as the principal count, i.e., the principal term, is consistent with the sentence for that count being a determinate sentence, not an indeterminate sentence. (People v.Neely (2009) 176 Cal.App.4th 787, 798.)

However, the courts oral pronouncement of the phrase [s]even years to life

to refer to the sentence on count 2 suggests the court intended to impose as to that count an indeterminate term of life with the possibility of parole with an MPET of seven years. Although the courts oral pronouncement is the judgment, we note the sentencing minute order, and abstract of judgment, indicate the trial court imposed an indeterminate sentence on count 2 of seven years to life with the possibility of parole.

In sum, the record is ambiguous concerning the sentence which the trial court imposed as to count 2. We will vacate appellants sentence and remand the matter for resentencing to permit the trial court to clarify its sentence as to count 2. (Cf. People v.Garcia (1997) 59 Cal.App.4th 834, 839; Pen. Code, 1260.)[4]

2. The Trial Court Properly Imposed Consecutive Sentences on Counts 2 through 4.

a. Pertinent Facts.

As mentioned, count 2 alleged that appellant attempted to murder Sung. Counts 3 and 4, alleged that appellant committed second degree robbery against Sung and Young, respectively. We have set forth pertinent facts concerning those counts in our Factual Summary. The jury convicted appellant on counts 2 through 6. The amended information was further amended to allege count 14, a violation of Penal Code section 211 arising from an alleged robbery at the Nextel store (see fn. 1, ante), with a firearm use enhancement under Penal Code section 12022.5, subdivision (a). Appellant pled no contest to count 14 and admitted the enhancement. On that count, the court imposed a concurrent sentence consisting of two years for the robbery, plus three years for the enhancement.

During discussions concerning appellants motion for a new trial, the court and appellant discussed as to count 2 whether the discharge of appellants gun was accidental or intentional. After noting that appellant and Espino entered the store, the court stated, [Appellant] is still armed with a loaded weapon. The video evidence shows that the defendant did leave the area, if not the store, the video kind of indicates he went out at least to the doorway and then he comes back in still with that loaded weapon, when he comes back in, is when he fired the weapon. (Sic.)

The court later observed, [Pantoja] testified that after the shooting, [appellant] said he had fired at [Sung] to protect . . . [Espino]. . . . [Appellant] was very specific in saying I fired at that Chinese to protect [Espino]. The court indicated this evidenced that appellant intentionally shot at Sung. The Peoples sentencing memorandum recommended consecutive sentences on counts 2 through 4.

During sentencing, the court indicated I dont have [Oates[5]] with me. I have the Palacios[[6]] case. When sentencing on count 3, the trial court stated, Going to count 3, the PC 211 as to Sung Lee and Im relying upon not only People v. Oates, but People v. Palacios, so that you have a good record on this [appellants counsel]. As to that, the court selects one-third of the mid-term, the mid term being three years, one-third being one year plus. . . . Consecutive because you have a distinct crime and separate victim. [] In addition as to count 3, the 211, the enhancement under [Penal Code section] 12022.53 [subdivision] (d), thats 25 years to life. The prosecutor noted that counts 2 and 3 involved the same victim. The court acknowledged the prosecutor was correct, then the court stated, Its a distinct and separate crime and the [Penal Code section] 12022.53 [subdivision] (d), 25 years to life. And that gives as to count 3, a total of 26 years to life.

Later, when sentencing in connection with count 4, the court stated, inter alia, Again, the enhancement under [Penal Code section] 12022.53 [subdivision] (d), under the authority of People v. Palacios, et al, 25 years to life.

In sum, the court sentenced appellant on count 2 (with its enhancement) to 32 years to life in prison with, as to each of counts 3 and 4, a consecutive subordinate term of one year, plus 25 years to life pursuant to Penal Code section 12022.53, subdivision (d). The court also imposed, as to count 5, a consecutive subordinate term of one year, plus, for the firearm enhancement pertaining to that count, one year four months.[7] The court stayed sentence on count 6 pursuant to Penal Code section 654. The court imposed a concurrent sentence of two years on count 14.

b. Analysis.

Appellant claims the trial court erroneously imposed consecutive sentences on counts 2 through 4. We disagree. Appellants claim raises two issues. The first is whether Penal Code section 654 barred multiple punishment on counts 2, 3, and/or 4. The second is whether the trial court was aware of its discretion to impose concurrent sentences on those counts, and the impact, if any, on this issue of the trial courts references during sentencing to Palacios, supra, 41 Cal.4th 720, and Oates, supra, 32 Cal.4th 1048.[8]

(1) Penal Code Section 654 Did Not Bar Multiple Punishment on Count 2, 3, and/or 4.

Appellant argues Penal Code section 654 barred multiple punishment on count 2, 3, and/or 4. For the reasons discussed below, we disagree. Penal Code section 654 states, in relevant part, (a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.

Penal Code section 654, as interpreted by our Supreme Court, prohibits multiple punishment for offenses committed during an indivisible transaction. If all offenses are incident to one objective, the defendant may not be punished for more than one. However, if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the defendant may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (Cf. People v. Bradley (2003) 111 Cal.App.4th 765, 769, fn. 3.) The purpose of Penal Code section 654 is to insure that a defendants punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) This includes the trial courts implied findings. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190 (Nguyen).)

It is one thing to commit a criminal act in order to accomplish another; Penal Code section 654 applies there. But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense. (Nguyen, supra, 204 Cal.App.3d at p. 191, italics added.) [Even though] the crime of robbery is not actually complete until the robber has won his way to a place of temporary safety . . . it cannot mean every act a robber commits before making his getaway is incidental to the robbery. [Citation.] (Id. at p. 193.) Finally, [a]n exception to the applicability of Penal Code section 654 is made where a crime of violence is committed against more than one victim. (Neal v. State of California[(1960)] 55 Cal.2d [11,] 20-21.) (People v. Williams (1992) 9 Cal.App.4th 1465, 1473.)

To the extent appellant claims Penal Code section 654 barred multiple punishment on counts 2 and 3, we disagree. Given the evidence presented at trial, including the evidence discussed by the trial court when it entertained appellants motion for a new trial, there was substantial evidence that appellant already had taken Sungs personal property and was making good appellants escape when, either while, or shortly after, exiting the store, appellant returned and fired at Sung to protect Espino. Appellant did not, in order to make good appellants escape and win his way to a place of temporary safety, have to return and fire at Sung to protect Espino. This is especially true since the trial court reasonably could have concluded that Espino had been wounded, if not mortally so, by the time appellant began firing, and that Espino would therefore not be escaping anywhere.

Appellants shooting was a criminal act far beyond that reasonably necessary to accomplish his crime of robbery; all appellant had to do was keep going with his loot. Penal Code section 654 did not bar multiple punishment as to counts 2 and 3, and imposition of sentence on both counts resulted in punishment commensurate with appellants culpability.

To the extent appellant claims Penal Code section 654 barred multiple punishment on (1) count 2 or 3 and (2) count 4, we reject the claim. The multiple victim exception applied to permit sentencing as to those counts.

(2) The Trial Court Was Aware of Its Discretion to Impose Concurrent Sentences.

The general rule is that a trial court is presumed to have been aware of, and to have followed, applicable law. (People v. Mosley, supra, 53 Cal.App.4th at p. 496; Evid. Code,  664.) An appellate court must presume that the decision of the trial court is correct, all intendments are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. (Ibid.) The appellate court cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion. [Citations.] (In re Jacob J. (2005) 130 Cal.App.4th 429, 438.) The general rules concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues. [Citations.] (People v. Mosley, supra, at p. 496)

In the present case, we must presume the trial court was aware of its discretion to impose concurrent sentences as to counts 2, 3, and 4. Moreover, the trial court indicated as reasons for imposing consecutive sentences on counts 3 and 4 that the former offense was a distinct and separate crime, and the latter offense involved a separate victim and separate crime. This statement of reasons for imposing consecutive sentences was superfluous if the trial court thought consecutive sentencing was mandatory. We also note the trial court in fact exercised its discretion to impose concurrent sentences when it imposed a concurrent sentence on count 14.

The record does not establish on its face that the trial court misunderstood its discretion, nor does the record establish facts rebutting the presumption of regularity of judicial exercises of sentencing discretion. Appellants claim fails.

The trial courts references to Palacios, supra, 41 Cal.4th 720, and Oates, supra, 32 Cal.4th 1048, do not compel a contrary conclusion. Those cases focus on the relationship between, on the one hand, Penal Code section 654 and, on the other, Penal Code section 12022.53, subdivision (d) enhancements, not on trial court awareness of discretion to impose concurrent sentences for substantive offenses.

Oates concluded the multiple victim exception to Penal Code section 654 permitted imposition of multiple Penal Code section 12022.53, subdivision (d) enhancements, where each offense to which an enhancement pertained involved a different victim (and even though each enhancement involved the same victim). (Oates, supra, 32 Cal.4th at pp. 1052-1053.) Oates acknowledged that trial courts still had discretion to impose concurrent terms on the substantive offenses.[9]Palacios concluded that Penal Code section 654 did not bar imposition of multiple Penal Code section 12022.53, subdivision (d) enhancements, even where each offense to which an enhancement pertained (as well as each enhancement itself) involved the same victim. Nothing in Palacios or Oates purported to limit a trial courts discretion to impose concurrent sentences for substantive offenses.

In the present case, the trial court referred to Palacios and Oates after going to count 3. However, the court suggested it had read Palacios (which discussed Oates) and, fairly read, we view the trial courts references to Palacios and Oates (viewed in the context of the presumption that the trial court is aware of the law) as explaining the trial courts reason for imposing the Penal Code section 12022.53, subdivision (d) enhancement pertaining to count 3, not the trial courts reason for imposing a consecutive sentence on count 3. The trial court did not expressly state that it was imposing a consecutive sentence on count 3 (or on any other count) because of Palacios or Oates.

Moreover, we note that, when later sentencing appellant in connection with count 4, the court stated, Again, the enhancement under [Penal Code section] 12022.53 subdivision (d), under the authority of People v. Palacios, et al, 25 years to life. (Italics added.) The trial court thereby expressly associated Palacios with the enhancement, not with the substantive offense. And the trial courts use of the word [a]gain implied that the courts earlier reference to Palacios and Oates pertained to the enhancement associated with count 3, not the substantive offense at issue in that count. The trial courts references to Palacios and Oates cannot reasonably be construed as indicating the trial court believed it was mandated to impose consecutive sentencing on the substantive offenses at issue in counts 2, 3, and 4.

3. The Court Properly Gave CALJIC No. 2.62.

During the final charge to the jury, the court, without objection, gave CALJIC No. 2.62, which pertains to a defendant testifying and when an adverse inference may be drawn. That instruction states, In this case defendant has testified to certain matters. [] If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [] The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [] If a defendant does not have the knowledge that he would need to deny or to explain evidence against him[,] it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.

Appellant claims the trial court erred by giving this instruction. We disagree. The pertinence of CALJIC No. 2.62 depends upon the facts of the case. [Citation.] (People v. Mask (1986) 188 Cal.App.3d 450, 455.) [I]f the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible, the inquiry whether he reasonably should have known about circumstances claimed to be outside his knowledge is a credibility question for resolution by the jury. [Citations.] (Ibid.)

We have set forth in our Factual Summary pertinent facts regarding appellants defense, and we will not repeat them here. Suffice it to say that the trial court reasonably could have concluded that appellants defense was bizarre or implausible (and fabricated). We note the trial court reasonably could have concluded that appellant failed to explain, for example (1) why he did not let Villagomez leave the store, (2) why appellant went behind the counter because he wanted to leave, instead of merely leaving without going behind the counter, (3) why, if appellant wanted to get out of the store and wanted Espino to hurry, appellant did not simply leave, instead of allegedly taking items, and (4) why appellant gave conflicting evidence on, e.g., whether he did anything to return Sungs fire. The court did not err by giving CALJIC No. 2.62. (Cf. People v. Belmontes (1988) 45 Cal.3d 744, 783-784; People v. Mask, supra, 188 Cal.App.3d at p. 455.)

Moreover, appellant, during his testimony, admitted his involvement in the videotaped robbery at the Lees store, and at one point admitted that he fired at Sung when Sung fired at him. The jury not only necessarily rejected appellants defense as to counts 2 through 6, but found, as to counts 2 and 3, that appellant personally and intentionally discharged a firearm, personally causing great bodily injury to Sung. The jury made similar findings as to count 4. Any instructional error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)

4. Imposition of Consecutive Sentences on Counts 2 through 5 Did Not Violate Appellants Right to A Jury Trial.

Appellant claims the trial courts imposition of consecutive sentences on counts 2 through 5 violated his right to a jury trial. However, our Supreme Court has concluded, [a] defendants constitutional right to jury trial [is] not violated by the trial courts imposition of consecutive sentences . . . . (People v. Black (2007) 41 Cal.4th 799, 823.) Appellant concedes this Court is bound by Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Moreover, our Supreme Court recently noted, the [United States Supreme

Court] recently held that Apprendi [v. New Jersey (2000) 530 U.S. 466 [147 L.Ed. 2d 435, 120 S. Ct. 2348]] does not govern the decision whether to impose concurrent or consecutive sentences . . . . (Oregon v. Ice (2009) 555 U.S. ___, ______ [172 L.Ed. 2d 517, 129 S. Ct. 711, 718-719].) (Porter v. Superior Court (2009) 47 Cal.4th 125, 137.) Appellants claim fails.

DISPOSITION

The judgment is affirmed, except that appellants sentence is vacated and the matter is remanded to permit the trial court to clarify its sentence with respect to count 2 and to resentence appellant accordingly. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J. ALDRICH, J.

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[1] Appellant was also charged with other offenses which allegedly occurred at a Nextel store on January 2, 2006. The facts of those offenses are not pertinent to this appeal.

[2] At one point, appellant, during jury argument, referred to the concepts of premeditation and deliberation.

[3] Penal Code section 664, subdivision (a) states, in relevant part, Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: [] (a)  If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years. The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (Italics added.) There is no dispute that the maximum sentence of murder is life imprisonment or death. Finally, Penal Code section 3046, states, in relevant part, No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following: [] (1) A term of at least seven calendar years.

[4] We note that, even if it were clear that the trial court intended a seven-year determinate term on count 2, we would have to remand for correction of the abstract of judgment.

[5]People v.Palacios (2007) 41 Cal.4th 720.

[6]People v.Oates (2004) 32 Cal.4th 1048.

[7] If the sentence imposed on count 2 was a determinate term of seven years, appellants total unstayed prison sentence would be 86 years 4 months to life.

[8] Appellant does not dispute the propriety of the factual reasons on which the trial court relied to impose consecutive sentences on counts 2 through 4, except to the extent of his Sixth Amendment challenge discussed below. Nor does appellant challenge the trial courts imposition of the Penal Code section 12022.53, subdivision (d) enhancements in this case; he states the trial court was mandated to impose a 25-year-to-life enhancement on each count where it was found true . . . . In light of our analysis below, there is no need to reach the issue of whether appellant waived his sentencing claim(s) by failing to raise them below.

[9]Oates stated, there is nothing anomalous about applying [Penal Code] section 12022.53 in accordance with its language, such that the number of subdivision (d) enhancements imposed turns on the number of people defendant attempted to murder. Moreover, as the People note, a trial court can mitigate concerns about sentencing inequities by imposing concurrent, rather than consecutive, sentences where multiple subdivision (d) enhancements are found true. (Oates, supra, 32 Cal.4th at p. 1060, italics added.)