P v. Keo

Filed 8/25/08 P v. Keo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William H. Kennedy, Judge. Affirmed.

A jury convicted Chanty Keo of premeditated attempted murder (Pen. Code,  187, subd. (a), 189, 664, subd. (a)^[1]; count 1), robbery ( 211; count 2), assault with a firearm ( 245, subd. (a)(2); count 3), two counts of burglary ( 459; counts 4 & 8), unlawfully taking a vehicle (Veh. Code,  10851, subd. (a); count 5), selling a stolen

vehicle ( 496d; count 6), grand theft ( 487, subd. (a); count 7), and attempted grand

theft ( 487, subd. (a), 664; count 9). The jury also found true allegations that Keo had intentionally and personally discharged a firearm and had caused great bodily injury to a person other than an accomplice within the meaning of section 12022.53, subdivision (d) while committing the count 1 and 2 crimes and that he personally used a firearm and inflicted bodily injury while committing the count 3 assault ( 12022.5, subd. (a) & 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found true allegations as to counts 1 through 4 that Keo had committed those crimes while he was released from custody on bail pending final judgment in another felony case ( 12022.1, subd. (b)).

The court sentenced Keo to prison for life with the possibility of parole on the count 1 attempted murder plus consecutive terms of 25 years to life for the section 12022.53, subdivision (d) enhancement and two years for the section 12022.1 on-bail enhancement. The court imposed a concurrent sentence for the count 2 robbery plus its attendant section 12022.53, subdivision (d) enhancement, and stayed the on-bail enhancement for that crime under section 654. The court then imposed concurrent and stayed terms under section 654 on the remaining counts in this case.^[2]

Keo appeals, contending that the trial court deprived him of due process by admitting an impermissibly suggestive photographic lineup and the testimony of

witnesses who viewed that lineup, and that his trial counsel rendered ineffective assistance by failing to introduce the testimony of an "eyewitness identification expert" in order to counter the effect of the mistaken identifications. In addition to opposing Keo's assertions, the People claim that the trial court imposed an unauthorized sentence by running the section 12022.53, subdivision (d) enhancement for the count 2 robbery concurrently to the count 1 sentence. We affirm.

FACTUAL BACKGROUND

Because Keo does not challenge the sufficiency of the evidence to support his convictions, we summarize the facts presented at trial. Such facts in the prosecution case showed that Keo had first met Iraj Abdy in 2004 at a wrecking yard in Chula Vista. At that time, Abdy had explained to Keo that he bought cars and car parts for resale from businesses on El Cajon Boulevard in San Diego, often finding missing parts for cars at the Chula Vista junkyards. When Keo told Abdy he had some racing cars to sell, Abdy gave him the address of his business, Crown Auto Sales, at 3601 El Cajon Boulevard. Subsequently, Keo came with potential customers to that business, which Abdy then owned with George Hirad, who owned another used car business, also named Crown Auto Sales, down the street at 3470 El Cajon Boulevard. Abdy estimated that Keo had come by his El Cajon Boulevard business seven or eight times to see him before Abdy left in August 2005 to start his own used car business, Max Auto Sales, on Jamacha Boulevard in Spring Valley. At that time, Hirad continued to own and sell used cars from both businesses on El Cajon Boulevard and a salesman named Esmaeil Taghavi continued to work at the Crown Auto Sales at 3470 El Cajon Boulevard.

On July 24, 2006, Keo came to see Abdy at Max Auto Sales in a red Honda Accord, driven by another Asian man, which he tried to sell to Abdy. When Abdy declined to buy the car, Keo pleaded with him to buy some wheel rims because he needed money and Abdy agreed to buy them for $250. As Abdy went into his small office where a customer named James Miller was filling out a contract for a car he was purchasing to write a check, Keo followed him and said he wanted cash. Having $2,000 in cash, which included five or six $100 dollar bills and the rest in 20's, from the proceeds of a car he had sold the previous night inside his checkbook, Abdy opened it in front of Keo and handed him $250.

Keo left, but then returned to the office five to 10 minutes later with a $100 dollar bill in his hand and asked Abdy, who was still assisting Miller with paperwork regarding the car he was purchasing, for some smaller bills. When Abdy told Keo to go to a liquor store across the street for change, Keo insisted Abdy had cash on hand and would leave if he made change for him. As Abdy, who was sitting behind his desk, started to take the money out of his checkbook, Keo suddenly tried to grab the checkbook from him, but Abdy pulled it back. Keo then pulled out a handgun, pointed it at Abdy, said, "Give me the money," and fired a shot into the wall behind Abdy's chair.

At that point, Miller ran out of the office, and Abdy got up and started toward the corner of his desk. As he did so, Keo rushed toward Abdy, saying, "Give me the fucking money. I'll kill you." Keo then fired another shot at the desk and Abdy gave him the money. After obtaining the money, Keo, who was about a foot away from Abdy, continued to point the gun at him, holding it over his head with the barrel pointed downward toward Abdy. Thinking Keo was going to shoot him, Abdy tried to grab the gun and Keo fired a third shot, hitting Abdy in the upper leg. Abdy then pushed Keo out of his office and fell to the floor. Keo left the business in the Honda.

Police responded immediately to the scene of the shooting. A man working across the street from the business had seen a young Asian male with about two inches of "black hair . . . spiked up" drive away in a red Honda after he heard shots coming from the business. Before Abdy was taken to a hospital where he underwent emergency surgery to insert a 38-centimeter rod with screws into his right femur, which had been shattered by the shot in his upper leg near his femoral artery, he gave a brief description of his assailant to a San Diego County Sheriff's deputy. The deputy noted that Abdy, who was in a lot of pain, described the man who robbed and shot him as an "Asian male, about 20 to 22 years old and had spiked hair, was wearing a gray shirt and blue pants." Abdy described the driver of the Honda with his assailant as Asian with hair about one inch long.

Although Abdy was initially hospitalized for two weeks, the doctors were not able to remove the bullet until four months later. When Abdy was interviewed in the hospital by investigators, he said he knew the shooter, but only by the name of Barns, or possibly Saki.

Abdy's former business partner Hirad and salesman Taghavi from Crown Auto Sales visited Abdy in the hospital the day after he was injured. At that time, Abdy told Hirad that the shooter was the man Hirad had warned him not to buy car parts from when they were partners at Crown Auto Sales. When Hirad and Taghavi told Abdy that they had bought a Honda Civic from the same man, Abdy said that the man had offered to sell the Honda Civic to him as well, but he had declined. Taghavi also told Abdy that on July 22, 2006, two days before the shooting, the same man had stopped by the Crown Auto Sales where he worked and had wanted to sell some rims and had also asked for change for a $100 bill. After the visit, Abdy told investigators that they should talk to Hirad and Taghavi.

When investigators went to Hirad's business, they discovered a green Honda on the lot that Hirad had bought from a woman accompanied by Keo on June 27, 2006, and determined it was the same car earlier reported stolen by a woman named Sara Johnson. Investigators further learned that Keo and the woman also had tried to sell the stolen Honda to Taghavi at the other Crown Auto Sales lot on June 25, 2006, and that Keo had again appeared to sell car parts at that lot on July 22, 2006. Both Hirad and Taghavi had had previous dealings with Keo at the Crown Auto Sales lots because of his acquaintanceship with Abdy, and Taghavi knew Keo as "Burns."

Much of the above information was included in the reports provided to San Diego County Sheriff's Investigator Jerry Hartman, who compiled a six-pack photographic line-up that included a photo of Keo. Hartman included Keo's photo because it fit the physical description of the man who shot Abdy, he knew Keo's nickname was Burns, which was similar to "Barns" given by Abdy, and he was aware of Keo's involvement in the fraudulent sale of the green Honda with a woman named Rita Wages, whom Hartman had recognized in a photograph on the fake driver's license that had been given to Hirad during that sale and which Hirad had photocopied and given to the police during the stolen car investigation.

When police showed Abdy the photographic line-up, he identified Keo, who was in photograph number four, as his assailant. When Hirad and Taghavi were separately shown the same photographic line-up, each identified the photograph of Keo as the man who had been involved in the various incidents at their respective used car businesses. Keo was subsequently charged with the crimes in the instant case.

At trial, in addition to the above facts, the following evidence was presented in the prosecution case. Abdy testified he was 100 percent sure of his identification of Keo as his shooter and robber in the photographic line-up. He also identified Keo in court, and had done so at the preliminary hearing in this case. Abdy said that Keo had gained weight and his hair was a little longer than it had been on the day of the shooting. He explained that although he had said that Keo was bald then, he was not totally bald on July 24, 2006, but his hair had been very short. Abdy also said that Keo had the same facial hair at trial as he did at the time of the shooting, "a little mustache and beard." Abdy denied telling the police he did not know his assailant, only that he did not know his real name, knowing him by the name "Barns." He later learned the nickname had not been Barns, but Burns.

When asked on cross-examination if he had initially described the man who shot him as having spiked hair, Abdy responded, "What is meaning, 'spite hair'?" He then said he did not remember saying the shooter had spiked hair. Although Abdy agreed that Keo usually was always "bald," he said he had very short hair at the time of the shooting and that he knew him as the man who sold rims and a Honda to him.

Abdy testified that when he was questioned by investigators after the shooting, he had forgotten to tell them that he once bought some wheel rims from Keo and had partially paid him with a check. Shortly before trial, he remembered the incident where he bought four Lexus rims from Keo for $450, giving him $120 in cash and paying the balance with a check for $330, made out to "Chanty Keo," the name Keo had told him to write. A copy of the check was entered into evidence.

James Miller, the customer who had been with Abdy in his office the day of the shooting, also testified at trial. Miller had not paid much attention to Keo until he and Abdy were both grabbing at something and the first shot was fired. After ducking and running out of the office, Miller heard two more shots. Although Miller had not been able to identify anyone in the photographic line-up, he thought the shooter could have been in either photograph three or four, and leaned toward number four as the man who shot Abdy. Miller identified Keo as the shooter in court, as well as having done so at the preliminary hearing.

On cross-examination, Miller explained that he had only glanced at the shooter, not paying attention to his hair, but rather his facial features, which were a mix of Oriental and Black looks. He did not remember any facial hair or spiky hair, only a long flat-top type haircut.

Taghavi testified at trial about the encounter he had with Keo on July 22, 2006, two days before Abdy was robbed and shot, and also about the earlier attempted sale of the stolen green Honda on June 25, 2006. Taghavi had seen Keo at Crown Auto Sales on other occasions, but he had not known his name. As to the later July incident, Keo had entered Taghavi's office just before closing, telling Taghavi that a friend of his had a car he wanted to sell and he had some rims to sell for $100. When Taghavi asked him where the car was, Keo said his friend had driven it around the block. In response to Taghavi's refusal to buy the rims, Keo then asked him for $100. When Taghavi told him he did not have $100, Keo asked Taghavi to give him change for a $100 dollar bill and a ride two blocks down the street. Because Keo's changing stories made Taghavi feel uncomfortable, Taghavi told Keo he could not give him any change or a ride. Taghavi never saw a car or another person during the incident and, as he was driving away after he left work, he saw Keo walking toward 36th Street.

As to the earlier incident on June 25, 2006, Keo had arrived at Crown Auto Sales with a woman in a green Honda Civic, telling Taghavi that the woman wanted to sell her car. Taghavi declined to buy the car, but told them to talk to his boss, Hirad, at the other Crown Auto Sales lot down the street.

Hirad testified at trial that on June 27, 2006, Keo, whom he recognized from earlier visits to his business, and the woman came to his other lot on El Cajon Boulevard and he agreed to buy the green Honda Civic for either $2,200 or $2,700, but he then sent them back to the lot where Taghavi was working to be paid because Taghavi had the checkbook for the businesses. However, when Keo and Taghavi could not agree on the method of payment, with Keo insisting that payment be in cash, Taghavi sent Keo and the woman back to Hirad. At that time, Hirad made a photocopy of the woman's driver's license and checked the car registration and VIN number. Because everything appeared to be in order, Hirad wrote a check out to "Sara Beth Johnson," the name on the driver's license. He then accompanied Keo and the woman to the bank where the check was cashed and Hirad handed the woman the money.

Hirad further testified that when he had been business partners with Abdy he had seen Keo several times at the business selling car parts to Abdy. At that time Hirad had warned Abdy not to deal with Keo because there was no way to be sure that the parts had not been stolen.

With regard to the June 2006 incident, Sara Johnson testified that she had left her green, 1996 Honda Civic, with its title papers in the glove compartment, parked near a friend's house in Mission Hills on June 22, 2006, while she was out of town for a few days. When she returned four days later, she discovered the Honda was missing and reported its theft to the police. Johnson had taken her car keys with her and no one had permission to drive her car while she was gone. When shown the photocopy taken by Hirad of the driver's license that bore her name during the sale at Crown Auto Sales, Johnson denied that the photograph on the license was of her.

A woman named Christine Opel testified at trial that she had met Keo, whom she had known only as Burns, through her good friend, Rita Wages, who was originally charged along with Keo for the June 2006 burglary of Crown Auto Sales.^[3] Opel had

seen a fake ID Wages had had in the name of Sara Johnson. Opel was positive that Keo knew Wages was not named Sara Johnson because she had heard Keo call Wages by her real name on several occasions. Opel identified Wages as the woman in the photograph on the photocopied driver's license bearing the name of Sara Johnson in evidence.

The Defense Case

The sole defense witness was a bail bondsman who identified a photograph he had taken of Keo on July 19, 2006, six days before the shooting incident. Keo's defense counsel used the photograph in closing to argue that Keo had been bald and had had facial hair at the time of the July 25, 2006 robbery and attempted murder, while the witnesses had described the shooter in that incident as a man with short or spiky hair on his head, and with little or no facial hair. Although counsel conceded that Keo had been at the dealership that day with another man to sell some auto parts, he asserted that Keo had been wrongly identified as the shooter who later returned to the dealership for change for the $100 bill.

DISCUSSION

I

PHOTOGRAPHIC LINEUP ISSUES

In limine, defense counsel asked the court to exclude the photo lineup of Keo as unduly suggestive.^[4] The prosecutor immediately responded that no earlier objection to the photographic lineup had been made before the witnesses testified at the preliminary hearing and identified Keo in court. The prosecutor also pointed out that because many of the witnesses knew the defendant, their respective identifications of Keo's photo in the lineup had little relevance, and their testimony should not be suppressed even if the court were to find the lineup suggestive as "counsel's not raising that." The prosecutor submitted that the lineup did not even come close to being suggestive and unfair, and that defense counsel could argue the matter to the jury.

Defense counsel then completed her offer that the lineup was unduly suggestive because all the descriptions given of the shooter talked about him "having spiked hair" and no facial hair whereas Keo did not then have spiked hair or in his photograph included in the lineup. Counsel essentially argued that the lineup was unfair because it was solely based on the shooting victim saying, "Show me a picture of the guy and I'll be able to point him out." Counsel specifically stated, "So this is a lineup about Mr. Keo, and [the victim Abdy] pointed him out because he knows him, and he knows him from [previous dealings], not because it's a lineup that has anything to do with the description of the suspect [given to the police after the shooting], and that's what makes it unduly suggestive."

The prosecutor added that "with regard to how the police selected the photographs to be placed [in the lineup], the victim did identify to the detective, who showed him the photo lineup ultimately, the defendant by his nickname, and that is how they ended up putting this defendant's photograph into the lineup."

The trial judge denied the defense motion, stating, "To be perfectly candid with you, I don't see this as a basis to exclude the testimony concerning [the lineup]. It certainly is the subject of cross-examination and argument. So be my guest in that regard, but I'm not going to exclude it."

On appeal, Keo contends the court erred in admitting evidence of the photographic lineup because it was unduly suggestive as not all photographs in the six-photo display matched his photographic appearance "in all significant aspects." He argues that such suggestive line-up evidence tainted the memories of the eyewitnesses and called into question the reliability of their in-court identifications of him as the robber and shooter. Consequently, he asserts the People cannot prove that the tainted identification evidence was harmless beyond a reasonable doubt and the judgment must be reversed. We find no merit in Keo's various assertions regarding the photographic lineup.

Initially, we note that the record is not totally clear as to the court's in limine ruling. Even though the prosecutor argued that defense counsel was not raising any issue as to whether the eyewitness testimony should be excluded as tainted by the purported suggestive lineup as compared to only suppressing the photographic lineup shown the witnesses, the court's ruling appears to have impliedly found that the photographic lineup was not suggestive and that all testimony regarding such lineup would be admitted. However, because defense counsel had narrowed the motion during argument below to apply only with regard to Abdy's identification of him as the robber and shooter, Keo's appellate assertions, which generally refer to all the eyewitness testimony and the identifications of him made by various other witnesses who were shown the photographic lineup before trial are waived. (Evid. Code,  353.) As to Keo's due process claims regarding the photographic lineup and Abdy's in-court identification testimony, on this record, we conclude they lack merit.

"Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable. [Citations.]" (People v. Yeoman (2003) 31 Cal.4th 93, 123.) The defendant bears the burden of showing the identification procedure used in any case was suggestive and unreliable. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) " 'The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.' [Citation.] In other words, '[i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).)

To evaluate suggestiveness in a witness identification procedure, the above factors are considered to determine " '[t]he question [of] whether anything caused defendant to "stand out" from the others in a way that would suggest the witness should select him.' [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 990 (Cunningham); see also People v. Kennedy (2005) 36 Cal.4th 595, 610.) Although our review is deferential to the trial court's findings of fact which involve credibility determinations, we independently review the trial court's ruling "that a pretrial identification procedure was not unduly suggestive." (Id. at p. 609.)

After independently reviewing the subject photographic lineup, which was entered into evidence as People's Exhibit No. 11 and contained the photographs of Keo and five other men, we agree with the trial court's implied finding that the photographic lineup was not suggestive. All the photos in the lineup were Asian males of similar age and build, and the backgrounds of the photographs were all similar. Although four of the men had longer hair than the close buzz cut in Keo's photograph, the sixth man had a close buzz cut like Keo's. Two of the other men also had facial hair similar to that depicted in Keo's photograph. Although not all of the people in the lineup looked like Keo in "all significant aspects" as he claims, there is simply no requirement that only perfect matches or "very similar" individuals be placed in a lineup. Rather, the critical point is that the suspect not be included in the lineup in such a manner as to make his identification a virtual certainty. (See Cunningham, supra, 25 Cal.4th at p. 990.) Nothing about the composition of the photographic lineup impermissibly singled out Keo as the suspect in the crimes.

Moreover, Keo was afforded an opportunity at trial to attack the manner in which the photographic lineup was assembled and conducted. " 'Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification including reference to . . . any suggestibility in the identification procedure . . . .' [Citation.]" (Manson v. Brathwaite (1977) 432 U.S. 98, 113-114, fn. 14.) Keo's counsel cross-examined Detective Hartman in detail regarding the manner of selecting the individual photographs for the lineup and argued in closing that Abdy's identification of the shooter was invalid because he had initially told the police that his assailant had spiky hair while none of the photos in the lineup showed a man with spiky hair. Counsel essentially argued that the victim Abdy had identified Keo's photograph in the lineup solely because he knew him from earlier dealings.

Contrary to Keo's continual reliance on the argument that his photograph depicting him as bald or with a short buzz cut should not have been included in the lineup because it did not fit Abdy's initial description of the suspect and therefore suggests the line-up "was constructed to match [his] pre-robbery description . . . rather than that of the spikey-haired robber," the facts demonstrate that there were legitimate reasons to include his photograph in the lineup because of additional information about Keo's nickname obtained from Abdy and other witnesses during the criminal investigation. Keo's argument went to the weight of the evidence and not its admissibility. The jury was free to consider any inconsistencies in Abdy's and the other witnesses various identifications and descriptions of the suspect given to police just after the robbery and shooting when deciding what weight to afford the evidence.

Because we have determined that Keo has failed to show that the photographic lineup was unduly suggestive, we need not consider whether Abdy's identifications of him were otherwise reliable. (Ochoa, supra, 19 Cal.4th at pp. 412-413.) Accordingly, we conclude on this record that the trial court properly denied Keo's motion to exclude evidence about the photographic lineup at trial.

II

CLAIMED INEFFECTIVE ASSISTANCE OF COUNSEL

After the court denied the in limine motion to exclude the photographic lineup, defense counsel asked the court whether she would have to make an offer of proof to call an eyewitness identification expert if she determined she was going to call one. The court noted that counsel would not have to "go through that task." Subsequently, during jury instructions at the close of the prosecution case, when the court inquired whether defense counsel were going to call an eyewitness identification expert in Keo's defense case, counsel responded, "No, your Honor."

On appeal, Keo contends his retained trial counsel provided ineffective assistance by failing to call an expert on eyewitness identification without explanation after alerting the court that she may do so. His claim fails on appeal.

"To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (Cunningham, supra, 25 Cal.4th at p. 1003.)

Further, "[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069 (Kraft); People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 (Mendoza Tello).)

Here, the record is silent on why Keo's counsel did not call an expert to testify on eyewitness identification. Because counsel was not asked for an explanation and the record fails to eliminate the possibility of a satisfactory explanation for not calling one, i.e., counsel may have made a tactical decision not to call an eyewitness expert because she thought the expert might be more helpful to the prosecution than to the defense in light of so many of the witnesses, including the shooting victim, already knowing Keo before the crimes, we must reject the claim for purposes of this appeal. (Kraft, supra, 23 Cal.4th at pp. 1068-1069; Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)

III

NO UNAUTHORIZED SENTENCE

As noted earlier, the trial court imposed sentence on Keo's count 2 robbery conviction and attendant section 12022.53, subdivision (f) enhancement concurrent to the lengthy sentence it had imposed for the count 1 attempted murder. For the first time on appeal, the People challenge the concurrent sentence for the section 12022.53, subdivision (f) enhancement as unauthorized in light of our Supreme Court's holding in People v. Palacios (2007) 41 Cal.4th 720 (Palacios). We conclude that Palacios is inapposite, the sentence was not unauthorized and the People have forfeited any challenge to the imposition of a concurrent term for count 2 and its attendant enhancement.

In Palacios, the high court was concerned with the issue of whether section 654 barred the imposition of sentence for multiple section 12022.53 enhancements. (Palacios, supra, 41 Cal.4th at p. 725.) The defendant there had been sentenced to three consecutive life with the possibility of parole terms for attempted murder and two kidnapping convictions, each with an added enhancement under section 12022.53, subdivision (d) of 25 years to life. (Id. at pp. 724-725.) On appeal, the Court of Appeal in that case had agreed with the defendant that the imposition of sentence for two of the three section 12022.53 enhancements should be stayed under section 654 to make the defendant's punishment commensurate with his conduct of discharging the firearm only once at a single victim. (Id. at p. 725.) After reviewing the legislative intent and history behind section 12022.53, as well as section 654 and its holding in People v. Oates (2004) 32 Cal.4th 1048, the court in Palacios in reversing the Court of Appeal's ruling held that "in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654." (Palacios, supra, 41 Cal.4th at pp. 727-728.)

Here, the trial court imposed the section 12022.53 enhancement consecutive to the term it imposed for the count 2 robbery crime to which it attached. It did not stay the enhancement as prohibited under the holding of Palacios. The court then determined that the "sentence" for count 2, which includes both the term for the underlying crime plus the term for the attached enhancement (see People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310-1311),^[5]would run concurrent to the sentence it had imposed for count 1. The People did not object to this concurrent sentencing choice.^[6] Because this was an authorized sentencing choice ( 669), the failure of the People to object to the sentence on count 2 on grounds the imposition of a concurrent sentence was improper is therefore forfeited on appeal. (People v. Scott (1999) 9 Cal.4th 331, 354.)

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] The court also imposed sentence on two other cases pending against Keo, Case Nos. SCD200019 and SCD200020, for which he had pled guilty to various felony charges before the trial in this case. The convictions and sentence in those cases are not challenged on this appeal.

^[3] Although Wages was charged as a codefendant in the count 8 burglary in this case, she was not tried with Keo.

^[4] Defense counsel had included the issue as an evidentiary question in Keo's trial brief rather than as a specific motion to suppress the photographic lineup. That brief, however, is not part of the appellate record.

^[5] It appears that the People are treating the term for the enhancement as separate from its underlying robbery conviction. However, as we noted in Mustafaa, supra, 22 Cal.App.4th at page 1310, an enhancement may not be imposed as a subordinate or separate term on its own.

^[6] We decline to address Keo's assertion raised for the first time in his reply brief that a stay under section 654 may have been "more proper" than a concurrent sentence for count 2 because there was no "divisible intent" as to counts 1 and 2.