>P. v. George

 

 

 

 

 

 

 

 

 

 

Filed 9/3/12  P. v. George
CA2/8

 

 

 

 

 

 

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   RONNAIL DEON GEORGE et al.,               Defendants and Appellants.

B239059         (Los Angeles County       Super. Ct. No. SA 074226)

 

            APPEAL from
judgments of the Superior Court for the County
of Los
Angeles.  James R.
Dabney, Judge.  Affirmed as to Defendant
and Appellant Ronnail Deon George. Affirmed in part and remanded for resentencing as to
Defendant and Appellant Jotis Freeman.

            Linda
Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant
Ronnail Deon George.

Benjamin Owens, under appointment
by the Court of Appeal, for Defendant and Appellant Jotis Freeman.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II, and
Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________>




 

 

>SUMMARY

            Ronnail Deon George and Jotis Freeman were tried before
separate juries on 15 felony counts in connection with href="http://www.mcmillanlaw.com/">commercial burglaries and robberies that
took place a few days apart at an IHOP restaurant, a Blockbuster video store
and a Ralphs grocery store.  George’s
jury convicted him on all counts and found special allegations of gun use by a
principal and gang enhancements true. 
Freeman’s jury convicted him of the counts relating to the IHOP and
Ralphs crimes, and found allegations of personal use of a firearm true, but
found the gang allegations not true and could not reach a verdict on the nine
counts relating to the Blockbuster crimes. 
The court sentenced George to state prison for 23 years 8 months, and
sentenced Freeman to prison for 27 years 8 months.

Both defendants appeal.  George challenges only the sufficiency of the
evidence to support the gang enhancement. 
Freeman contends the trial court abused its discretion and violated his
federal due process rights by failing to consider his youth (16 years old) as a
mitigating factor at his sentencing.  He
also contends, and respondent concedes in part, the trial court erred in
sentencing on the firearm enhancements. 
We affirm the judgment against George. 
In the Freeman case, the matter is remanded for resentencing on
three firearm enhancements and the judgment is otherwise affirmed.

FACTS

In the early hours of April 13,
2010, after leaving a party, Freeman told George, “I’m about to go get some
money,” and George went with him.  They
drove to an IHOP restaurant and went inside. 
Freeman came up behind Jessica E., who was working there that morning,
put a gun to the back of her head, and told her “to give him the money.”  Freeman held the gun to her head while they
walked about 50 feet to the cash register. 
Freeman told George to “go get them, like people in the back of the
restaurant,” and George ran toward the back of the restaurant.  Jessica could not find the key to open the
register, so she and Freeman walked to another register, with Jessica still at
gunpoint.  She found the key, they walked
to the main register, and Jessica opened it. 


Meanwhile, Alberto T., who was
working as a busboy in an employee area at the back of the restaurant, saw
George running around in the back, and came out to see what was going on.  George “just jumped out” and raised his
fists, “like he tried to hit me.” 
Alberto tried to defend himself but then “saw that the other guy had my
friend, the other waitress,” and “had a gun to the waitress’ head.”  He “realized that it was a robbery and I ‑‑
I just stopped.” 

When Jessica E. opened the main
register, Freeman was upset because there was only about a $100 there.  Freeman took all the paper money and George
took quarters from the register.  Then,
one or both of them took Jessica’s cell phone and money out of her apron, and
defendants ran out of the store.

Three days later, in the late
evening of April 16, 2010, George was “hanging out” with “bangers,” including
Freeman.  They drove to a Blockbuster,
and George, Freeman and two others walked into the store together.  One of them said, “This is a robbery,” and at
least two or more of them had guns.  One
of them pointed his gun at the head of James P., a Blockbuster employee,
and demanded money, while the others spread out in the store, and most of the
patrons got down on the floor, including Roy L., Daniel S. and Jaswant A., who
heard the manager (Mirta M.) screaming inside the office when one of the men
tried to kick open the door.  The man
pointing a gun at James said he would kill James if he did not open the
register.  One of the customers, Patrycja
H., was on her cell phone, browsing videos, when she heard loud voices and
turned around to find a man with a gun who ordered her to give him her cell
phone and lie down on the floor.  She
complied.  Another customer, Aksana G.,
was in the checkout line with her boyfriend, Dominic D.  When the robbers told the patrons to “get
down,” Aksana complied.  Her purse was on
the counter.  When she got up after the
robbers left, the purse was gone, and she never got it back.  James was not able to open the
registers.  One of the men said something
like, “Let’s get out of here,” and they all left.

An hour later, George, Freeman and
two other men walked into a Ralphs grocery store.  They walked down different aisles, looking
around, and then came back to the checkstand area.  One of them, who had a gun, moved toward the
manager, Carmen O., who was next to the safe. 
Another of them, who also had a gun, ran to the cashier, Brooke C., and
a third man, also armed, stopped the cashier’s bagger, Hugo S., from coming
near the cashier.  The man with a gun who
approached the cashier ordered her to open the register and give him the money.  She opened the register and backed up; two of
the men with guns ran to the register, pulled the drawer out and took the money
underneath the drawer.  They ran toward
the door.  Carmen O. had been counting
money and had been putting it in black bags until an employee drew her
attention to the commotion at Brooke’s checkstand.  When the robbers saw Carmen, they came toward
her, pointing the guns at her; one of them said, “Give me the money.”  They took two bundles of money from a drawer
and started to run away, but then saw the black bags Carmen had been filling
with money.  Two of them came back and
took two of the bags and then ran.

George and Freeman were charged by
information with 15 felonies, including three counts of href="http://www.fearnotlaw.com/">second degree commercial burglary (Pen.
Code, § 459);href="#_ftn1" name="_ftnref1"
title="">[1]
four counts of second degree robbery (§ 211); one count of attempted second
degree robbery (§§ 664, 211); and seven counts of false imprisonment by
violence (§ 236).

The information alleged, as to all
counts, that a principal personally used a firearm, a handgun, within the
meaning of section 12022.53, subdivisions (b) and (e)(1).  As to all counts except count 1 (commercial
burglary at the IHOP), the information alleged Freeman personally used a firearm
within the meaning of section 12022.53, subdivision (b).  As to all counts, the information alleged the
crimes were committed for the benefit of a criminal street gang.  (§ 186.22, subd. (b)(1).)  The information also alleged George had
suffered one prior strike conviction, in juvenile court.

Defendants were tried by separate
juries.  Various witnesses testified to
the facts we have described, and a gang expert testified.  Surveillance tapes at the robbery locations and
police interviews with both defendants were also admitted into evidence.

George’s jury found him guilty on
all counts, and found the gang allegation true on all counts.  The allegation that a principal personally
used a firearm was found to be true as to the robbery and attempted robbery counts
(counts 2, 4, 5, 13 and 14).  George
waived a jury trial on his prior conviction, and the court found it to be true.


Freeman’s jury found him guilty on
counts 1, 2, 12, 13, 14 and 15 (the crimes at IHOP and Ralphs), but could not
agree on the counts relating to the Blockbuster crimes.  The jury found the gang allegations not true,
and found the gun use allegations (personal use of a firearm within the meaning
of section 12022.53, subdivision (b)) to be true on all of the six counts
of which Freeman was convicted.  The jury
also found the allegation that a principal personally used a firearm within the
meaning of section 12022.53, subdivisions (b) and (e)(1), to be true as to
the robbery counts (counts 2, 13 and 14).

George sought a new trial on the
gang allegations, contending there was no support for the gang expert’s opinion
and “no indicia in the facts of this case that would lead anybody to think that
this was done for the benefit of the gang or in association with the
gang.”  The court denied George’s motion,
observing the jury apparently accepted the expert’s testimony and “[a]lso, the
facts and circumstances of these crimes, particularly the Blockbuster,
certainly had indicia that this was a gang-related event in that they were
working coordinated together, going in to do a take-over robbery.” 

The trial court granted George’s
motion to strike his prior conviction. 
The court acknowledged the prosecutor’s offer to George before trial of
26 years was “pretty much in the ballpark of what this case was worth,” but
observed that, based on Freeman’s conduct at the IHOP and Ralphs, compared to
George’s at all three locations, the court was “loath . . . to give [George]” a
longer term than Freeman.  The court
sentenced George to a total of 23 years eight months in state prison, ordered
custody credits, imposed fines and made other orders not at issue in George’s
appeal.href="#_ftn2" name="_ftnref2" title="">[2]

The court sentenced Freeman to a
total term in state prison of 27 years eight months.  (The state chose not to retry the Blockbuster
counts against Freeman, and they were dismissed.)  The sentence consisted of 15 years on count
2, robbery of Jessica E. at the IHOP (the high term of 5 years, plus 10 years
for personal use of a firearm under section 12022.53, subdivision (b)); a
consecutive term of 4 years 4 months on count 13, the robbery of Carmen O.
at Ralphs (1 year for the robbery, plus 3 years 4 months for the gun
enhancement); a consecutive term of 4 years 4 months on count 14, the robbery
of Brooke C. at Ralphs (calculated as in count 13); and a consecutive term of 4 years
on count 15, false imprisonment by violence at Ralphs (8 months, plus 3 years 4
months for the personal use of a firearm under section 12022.53, subdivision
(b)).  In addition, the court imposed and
stayed sentences of 13 years on each of the two commercial burglary counts
(counts 1 and 12) (the high term of three years, plus 10 years for the personal
gun use allegations under section 12022.53).  The court also ordered custody credits,
imposed fines and made other orders not at issue in Freeman’s appeal.

Both defendants filed timely
appeals that were later consolidated.

DISCUSSION

>1.                 
The
George Appeal

George contends the evidence was
insufficient to establish the gang allegations beyond a reasonable doubt.  We disagree.

We review claims of insufficiency
of the evidence to support a gang enhancement by examining the entire record in
the light most favorable to the judgment, to determine if substantial evidence
exists for a reasonable trier of fact to find the gang allegations true beyond
a reasonable doubt.  (>People v. Albillar (2010) 51 Cal.4th 47,
59-60 (Albillar).)  “If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding.”  (Id. at p. 60.)  The reviewing
court “‘neither reweighs evidence nor reevaluates a witness’s
credibility.’  [Citation.]”  (Ibid.)

The legal principles applicable to
allegations that a crime was committed for the benefit of a gang are
these. 

            First, as >People v. Gardeley (1996) 14 Cal.4th 605
(Gardeley) teaches, the street
terrorism statute “does not criminalize mere gang membership . . . .”  (Id. at
p. 623.)  Instead, it imposes increased
criminal penalties only when the felonious conduct is gang related – that is,
committed “‘for the benefit of, at the direction of, or in association with’ a
group that meets the specific statutory conditions of a ‘criminal street gang’”
– and is committed “with the
‘specific intent to promote, further, or assist in any criminal conduct by gang
members.’”  (Id. at pp. 623-624, quoting § 186.22, subd. (b)(1).)

Second, as Albillar tells us, the gang enhancement “does not depend on
membership in a gang at all.  Rather, it
applies when a defendant has personally committed a gang-related felony with
the specific intent to aid members of that gang.”  (Albillar,
supra, 51 Cal.4th at pp. 67-68.)  >Albillar summarized:  “if substantial evidence establishes that the
defendant intended to and did commit the charged felony with known members of a
gang, the jury may fairly infer that the defendant had the specific intent to
promote, further, or assist criminal conduct by those gang members.”  (Id. at
p. 68.) 

            Third,
California law permits expert testimony on “the culture and habits of criminal
street gangs.”  (Gardeley, supra, 14 Cal.4th at p. 617; see also >In re Frank S. (2006) 141 Cal.App.4th
1192, 1196 (Frank S.) [“[i]t is
well-settled that a trier of fact may rely on expert testimony about gang
culture and habits to reach a finding on a gang allegation”].)

In this case, Officer Kenneth
Sanchez testified as the prosecution’s gang expert.  Among other matters, Officer Sanchez
testified, “I’ve known [George] to be an associate of the Black P-Stone gang.”  The basis for his opinion included a field
identification card documenting a stop made by Officer Sanchez’s partner.  The police use a field identification card to
document people who are stopped, and on the back of the card, the police list
individuals with whom the person was stopped. 
In this case, the field identification card indicated George “was with a
self-admitted, documented Black P-Stone gang member by the moniker of Speedy at
a known gang location with other gang members.” 
The “self-admitted” gang member was Benny Golliday, and on the back of
the card, George was listed as a “‘BPS [(Black P-Stone)] Associate.’”  Officer Sanchez also testified that, after
reviewing police department resources, he knew George to have a moniker of “No
Respect Boy,” connected with the Black P-Stone gang. 

A further basis for Officer
Sanchez’s opinion that George was an associate of the Black P-Stone gang was
that the crimes were committed with Freeman. 
Officer Sanchez testified he knew Freeman, and Freeman had “self-admitted
to me and other officers about being a Black P-Stone gang member with a moniker
of Baby Bambino.”  Officer Sanchez was
present when Freeman was arrested with two other documented Black P-Stone gang
members in the lower Baldwin Village, when a gang injunction was in place.  Freeman’s gang membership affected Officer
Sanchez’s opinion as to George’s association with the gang, because “[a]
documented gang member won’t commit certain acts with a regular civilian or
someone not part of their gang.”  In
addition, George’s statement to the police showed George “knows and understands
how to put in work into the gang” – that is, “trying to make a name for
yourself” by committing robberies or other particular kinds of crimes.  George was “aware of how different people put
in different work in different ways,” and “to him it’s robberies.”

Then, the prosecutor posed a
hypothetical based on the facts of the IHOP robbery, and asked for Officer
Sanchez’s opinion “as to whether or not that crime is committed for the benefit
of, at the direction of, or in association with the Black P-Stones gang.”  Officer Sanchez opined “it’s most definitely
in the direction, benefit of the Black P-Stone Gang.”  He observed there was one gang member and one
“affiliate to that Black P-Stone gang member”; they strategized and split up at
the IHOP; the documented gang member (Freeman) had a handgun in his hand
“showing the younger gang members how to pretty much operate”; and “[a]ll this
is like a learning factor that these guys do,” a “training experience.”  Further, the robbery occurred outside the
Black P-Stone gang territory, where George and Freeman were more likely to get
away without being identified.  Officer
Sanchez also opined George committed the crime in association with the Black
P-Stone gang, for the reasons just stated and because “the hierarchy won’t
allow a nondocumented member to hang out with a gang member, commit these
crimes, and not get a portion of what they’re going to get.”

Officer Sanchez further opined
George’s conduct in the IHOP hypothetical “is conduct that promotes, furthers,
or assists in criminal conduct by gang members of the Black P-Stone gang,”
because the money generated from robberies is used to fund various gang
expenses.  “The robberies . . . are
probably the quickest way to get revenue from [sic] the gang.  From there
they purchase guns, narcotics.  They post
people’s bails.  They fund parties.  And a percentage of that gets disseminated
within the gang again to promote and to recruit.”  The conduct of George and Freeman at the
IHOP, both in the range of 18 years old, was “a benefit for them and the gang,”
because the older gang members “know who’s putting in work. . . .  They’re elevating their status in the gang.  Again, they’re generating revenue.  They’re causing fear and ‑‑ in
the community, causing witnesses to be reluctant to come and testify, therefore
promoting the Black P-Stone gang.” 

In response to hypotheticals
mirroring the facts of the Blockbuster and Ralphs robberies, Officer Sanchez
opined similarly that the crimes were committed for the benefit of, at the
direction of, or in association with the Black P-Stone gang. 

In an interview with the police,
George denied being a gang member, but admitted he hung out with the Black
P-Stones and knew the police classified him as a Black P-Stone.  George knew Freeman was a Black P-Stone.

George contends Officer Sanchez’s
opinion “was insufficient to constitute substantial evidence that [George]
possessed the specific intent to promote, further, or assist in any criminal
conduct by gang members.”  We
disagree.  The evidence plainly showed
George “intended to and did commit the charged felon[ies] with” Freeman;
Freeman was a member of the Black P-Stone gang; and George knew it.  (See Albillar,
supra, 51 Cal.4th at p. 68.)  The crimes were thus gang related because
they were “committed . . . in association with” a gang and, as Officer Sanchez
testified, benefited the gang.  (§
186.22, subd. (b)(1).)  And >Albillar expressly tells us that if the
evidence “establishes that the defendant intended to and did commit the charged
felony with known members of a gang” ‑‑ as it does here ‑‑
then “the jury may fairly infer that the defendant had the specific intent to
promote, further, or assist criminal conduct by those gang members.”  (Albillar,
at p. 68.)  The jury made that inference
here, and, as Albillar also tells us,
even if the circumstances “might also reasonably be reconciled with a contrary
finding,” we could not reverse the judgment. 
(Id. at p. 60.)

George insists Albillar also states “[n]ot every crime committed by gang members
is related to a gang.”  (>Albillar, supra, 51 Cal.4th at p.
60.)  But a crime committed “in
association with” a gang is gang
related, and here George (an associate of the gang) and Freeman (a documented
gang member), “actively assisted each other in committing” the crimes.  (Id. at
p. 62.) 

George also cites several cases
that found insufficient evidence to
support gang allegations.  None of them
is analogous to this case.  >Frank S., supra, 141 Cal.App.4th 1192 involved a minor convicted of
possession of a concealed knife, not a crime committed with another member of
his gang.  In re Daniel C. (2011) 195 Cal.App.4th 1350, 1361, the court there
said, was “far different factually from Albillar,”
because in Daniel C., there was “no
evidence that [the defendant] acted in concert with his companions,” who had
left the store before the defendant committed the crimes, did not assist him in
assaulting the store manager, and did not even see what happened after they
left.  In People v. Ramon (2009) 175 Cal.App.4th 843, 853, which pre-dated >Albillar, the court refused to hold as a
matter of law that two gang members in possession of illegal or stolen property
in gang territory are acting to promote a criminal
street gang, but observed that the analysis “might be different if the
expert’s opinion had included ‘possessing stolen vehicles’ as one of the
activities of the gang.”  And in >People v. Ochoa (2009) 179 Cal.App.4th
650, the defendant acted alone in connection with a carjacking and being a
felon in possession of a firearm, so an expert’s opinion based solely the
defendant’s past gang activities and gang
affiliation was insufficient.  (>Id. at pp. 656-657, 665.)

In short, none of these cases is
like this case, where George actively assisted a known gang member in
committing the crimes.  We therefore
affirm the true finding on the gang enhancement.

2.                 
The
Freeman Appeal

Freeman raises three issues related
to his sentencing.

First, Freeman contends the trial
court failed to consider his youth (16 when the crimes were committed) as a
mitigating factor, abusing its discretion and violating Freeman’s federal due
process rights.  We do not agree with
Freeman’s premise.

The court, after hearing argument,
reviewing the probation and preplea sentencing reports, and indicating its
familiarity with all the facts as the trial judge in the case, said this:

“The
court, in reviewing the aggravating and mitigating factors in this case --
which I know are not controlling, I have to use my judgment, but which is what
does provide guidance -- none of the factors in mitigation apply in this
particular case.  None.

 

The only factor in
mitigation that I could possibly say here ‑‑ I don’t know if it’s a
factor in mitigation or just adding to the tragedy of this situation, is that
Jotis Freeman is such a young man.

“As far as the factors in
aggravation, I would point out that in that crime Mr. Freeman not only was
armed with a gun, but the manner in which he used it was particularly callous
in that he approached the cashier at the IHOP, put the gun to her head,
directly to her head, and while standing by the – the cash register in that
particular offense.

“And so I do find that
the – it went beyond the mere use of a gun. 
It was the manner in which the gun was used in this particular
case.  And I think that those
circumstances are a factor in aggravation.

“I’ll also point out that
while he didn’t have any adult priors or any priorable sustained petitions that
could be used, he did have sustained petitions for battery and for burglary,
apparently.  I don’t know if it was a
residential burglary.  It appears to be
since he was given six years on the disposition of two months in camp; as well
as for failures to obey a court order, a sustained petition.

“So it does appear that
these all started in ’07, ’08, and ’09. 
So his conduct prior, leading up to this thing, are of increasing
seriousness, obviously culminating in these offenses, which takes it to another
level completely.  So I do think the high
term is warranted in this particular case.”

Although the trial court initially
said there were no mitigating factors, the court immediately followed that with
a statement that clearly acknowledged Freeman’s youth.  As a reviewing court, we do not parse the
trial court’s words too closely but consider the entire record of the sentencing
hearing.  (See People v. Thomas (2011) 51 Cal.4th 449, 474-475.)  The trial court concluded that under the
circumstances, Freeman’s youth should not reduce the sentence.  That is not an abuse of discretion.  Any other conclusion would require a sentence
reduction for any juvenile no matter how egregious his conduct.  That is not the law.

Second, Freeman contends it was
error to impose a personal use firearm enhancement on count 1 (commercial
burglary at the IHOP) because none was alleged in the accusatory pleading.  Although the information alleged a principal
personally used a firearm, a handgun, within the meaning of section 12022.53,
subdivisions (b) and (e)(1), it did not allege Freeman personally used a
firearm.  And section 12022.53,
subdivision (j), states that, for the penalties in section 12022.53 to apply,
“the existence of any fact required under subdivision (b), (c), or (d)” –
including personal use of a firearm – “shall be alleged in the accusatory
pleading and either admitted by the defendant in open court or found to be true
by the trier of fact.” 

Respondent contends that, despite
the statutory language, the personal use enhancement may be applied because
Freeman “cannot say that he was surprised by the allegation” or that he was
deprived of the opportunity to present a defense on the allegation.  Respondent points out the information alleged
a principal personally used a firearm; the trial evidence was overwhelming that
it was Freeman; the jury was instructed on the personal use allegation and it
was included on the count 1 verdict form, without objection by defense counsel;
and Freeman’s defense could not have been compromised, because the defense
would have been identical to the defense of the personal use allegation in
count 2, the robbery of Jessica E. at the IHOP.

We conclude, under the authority of
People v. Houston (2012) 54 Cal.4th
1186, (Houston), that because
defendant had adequate notice that he faced punishment for personal use of a
firearm on count 1 and did not raise an objection in the trial court, he has
forfeited this claim on appeal.  (See >id. at p. 1228.) 

In Houston, the indictment failed to comply with the requirements of
section 664, which provides for additional punishment (life in prison) when an
attempted murder is willful, deliberate and premeditated, but provides that the
additional term “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.”  (§ 664, subd. (a).)  The court observed a defendant “has a due
process right to fair notice of the allegations that will be invoked to
increase the punishment for his or her crimes,” but held that under the facts
of that case, because defendant had adequate notice of the punishment he faced
and did not object, he forfeited his claim. 
(Houston, supra, 54 Cal.4th at
pp. 1227, 1228.) 

In Houston, the trial court
had expressly noted the defendant would be sentenced to life imprisonment if
convicted; asked the parties during the defense case to say if there were any
problems with the proposed jury instruction and verdict forms; told the parties
a week later the verdict form would include deliberate and premeditated
attempted murder as a special finding; and instructed the jury to determine
whether the attempted murders were willful, deliberate, and premeditated,
indicating a special finding on the question appeared on the verdict form.  (Houston,
supra, 54 Cal.4th at p. 1227.)  The Supreme Court concluded:  “Had defendant raised a timely objection to
the jury instructions and verdict forms at any of these stages of the trial on
the ground that the indictment did not allege that the attempted murders were
deliberate and premeditated, the court could have heard arguments on whether to
permit the prosecutor to amend the indictment. . . .  On the facts here, defendant received
adequate notice of the sentence he faced, and the jury made an express finding
that the attempted murders were willful, deliberate, and premeditated.  A timely objection to the adequacy of the
indictment would have provided an opportunity to craft an appropriate
remedy.  Because defendant had notice of
the sentence he faced and did not raise an objection in the trial court, he has
forfeited this claim on appeal.”  (>Id. at pp. 1227-1228, citation omitted.)

The circumstances here similarly
justify the conclusion that Freeman has forfeited his claim that the personal
gun use allegation in count 1 should be stricken.  The court instructed the jury that if the
jury found Freeman guilty of the crimes charged, it then must decide “whether,
for each crime, the People have proved the additional allegation that the
defendant personally used a firearm during the commission of that crime.  You must decide whether the People have
proved this allegation for each crime and return a separate finding for each
crime.”  Freeman did not object to this
instruction.  The guilty verdict form for
count 1 likewise included a finding on Freeman’s personal use of a
firearm.  And the jury made the express
finding that the allegation that Freeman personally used a firearm within the
meaning of section 12022.53, subdivision (b) was true.

The instructions to the jury and
the verdict form provided Freeman with adequate notice that he faced additional
punishment for personal use of a firearm with respect to count 1, just as he
did with respect to all the other counts of the information.  As in Houston,> “[b]ecause defendant had notice of the
sentence he faced and did not raise an objection in the trial court, he has
forfeited this claim on appeal.”  (>Houston, supra, 54 Cal.4th at p. 1228;
see also People v. Riva (2003) 112
Cal.App.4th 981, 1002, 1003 [imposing a section 12022.53 enhancement on a count
on which it was not pled “did not violate section 12022.53, subdivision (j) or
[the defendant’s] right to due process of law”; the enhancement was pled “as to
some of the counts in the information, just not the one on which the trial
court imposed it,” and the defendant “was on notice he had to defend against
the allegation” because it was pled as to the other counts that went to
trial].)href="#_ftn3" name="_ftnref3" title="">[3]


            Finally, Freeman contends, and
respondent concedes, the 10-year enhancements imposed under section 12022.53 in
connection with counts 1, 12 and 15 (the commercial burglaries and the false
imprisonment by violence) were imposed in error, and the enhancement under
section 12022.5 must be imposed instead. 
The parties are correct.  The
firearm enhancements in section 12022.53 apply only to felonies specified in
subdivision (a) of that section, and neither commercial burglary nor false
imprisonment by violence are among those specified.  But section 12022.5, subdivision (a)
provides “any person who personally uses a firearm 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 3, 4, or 10 years, unless use of a
firearm is an element of that offense.” 
While the personal firearm use enhancement was charged and found true
under section 12022.53, the same factual findings support a true finding under
section 12022.5.  (See >People v. Strickland (1974) 11 Cal.3d
946, 959, 961 [section 12022.5 (then applicable to only six specified felonies)
was improperly applied to a defendant convicted of voluntary manslaughter
because that crime was not among those specified, but jury found the defendant
was armed with a firearm when the offense was committed; because he was charged
with use of a firearm under section 12022.5, he “had notice that his conduct
[could] also be in violation of section 12022 [providing additional punishment
for commission of any felony while armed with a deadly weapon],” which “would
be applicable in any case in which [section] 12022.5 applies”].)

DISPOSITION

            In the case
of Ronnail Deon George, the judgment is affirmed.  In the case of Jotis Freeman, the matter is
remanded for resentencing under section 12022.5 on the firearm use enhancements
attached to counts 1, 12 and 15 and for correction of the abstract of judgment
accordingly, and in all other respects the judgment is affirmed.

 

 

                                                                                    GRIMES,
J.

 

            We concur:

 

                                    BIGELOW,
P. J.                                                       

 

 

RUBIN, J.