People v. Brown CA2/5

Filed 10/27/20 P. v. Brown CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B297949

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. TA139595)

v.

JUSTIN DIJON BROWN,

Defendant and
Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Teresa A. Magno, Judge. Affirmed as
modified.
Thomas Owen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, David W. Williams,
Deputy Attorney General, for Plaintiff and Respondent.
__________________________

On April 7, 2017, the jury found defendant and
appellant Justin Dijon Brown guilty of felon in possession of
a firearm in violation of Penal Code section 29800,
subdivision (a)(1)1 in count 2, and found that the offense was
committed for the benefit of a criminal street gang under
section 186.22, subdivision (b)(1)(A).
The trial court declared a mistrial as to count 1 (§ 211
[robbery]), in which it was also alleged that Brown
personally used a firearm (§ 12022.53, subd. (b)), and that
the crime was committed for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)(C)).
In a bifurcated proceeding, the trial court found true
the allegations that Brown had served three prior prison
terms within the meaning of section 667.5, subdivision (b),
had been convicted of a serious felony within the meaning of
section 667, subdivision (a)(1), and had been convicted of a
serious or violent felony within the meaning of the three
strikes law (§§ 667, subds. (b)–(i), 1170, subds. (a)–(d)).
The trial court sentenced Brown to 6 years in prison in
count 2 (the upper term of 3 years, doubled pursuant to the
three strikes law), a consecutive term of 4 years for the gang

1All further references are to the Penal Code unless
otherwise specified.

2
enhancement, and two consecutive 1-year terms for the prior
prison term enhancements, for a total sentence of 12 years.
The court dismissed the robbery count after the prosecution
indicated that it did not intend to pursue a conviction in
light of the sentence imposed.
Brown appealed, contending, as relevant here, that the
trial court committed constitutional error by failing to give a
unanimity instruction in count 2.
On August 24, 2018, we held that the trial court erred
in failing to instruct the jury that it must unanimously agree
as to which of two incidents formed the basis of its finding
that Brown was in possession of a firearm before it could
find him guilty, and reversed the judgment. (People v.
Brown (Aug. 24, 2018, B282871) [nonpub. opn.].)2
In 2019, Brown was re-tried. The jury found Brown
guilty of one count of second degree robbery (§ 211 [count 1])
and one count of felon in possession of a firearm (§ 29800,
subd. (a)(1) [count 2]). The jury found true the allegation
that Brown personally used a firearm (§ 12022.53, subd. (b))
in count 1, and that the crime was committed for the benefit
of a criminal street gang as to both counts (§ 186.22, subds.
(b)(1)(A) & (C)).
In a bifurcated proceeding, the trial court found true
the allegations that Brown had been convicted of two serious
or violent felonies within the meaning of the three strikes
law (§§ 667, subds. (b)–(i), 1170, subds. (a)–(d)), had been

2We take judicial notice of the record and our prior
unpublished opinion in case No. B282871.

3
convicted of one serious felony within the meaning of section
667, subdivision (a), and had served two prior prison terms
(§ 667.5, subd. (b)).
The trial court sentenced Brown to 21 years in prison.
In count 1, Brown was sentenced to the middle term of 3
years, doubled to 6 years pursuant to the three strikes law,
plus 10 years for the firearm enhancement (§ 12022.53,
subd. (b)). The court imposed a concurrent sentence of 7
years in count 2, comprised of the middle term of 2 years,
doubled pursuant to the three strikes law, plus the middle
term of 3 years for the gang enhancement (§ 186.22, subd.
(b)(1)(A)). The court imposed a sentence of 5 years for the
serious felony enhancement (§ 667, subd. (a)), and imposed
and stayed two 1-year prior prison term enhancements
(§ 667.5, subd. (b)).
Brown contends that the judgment must be reversed
because the trial court erred when it allowed the prosecution
to re-file dismissed charges a third time, in violation of his
constitutional right to a speedy trial. He asserts that the
trial court abused its discretion in finding “excusable
neglect” on the part of the prosecution and allowing the case
to proceed.
Alternatively, Brown contends that he was deprived of
his right to a fair trial because the trial court did not
bifurcate the portion of the trial related to the gang
enhancements, and admitted evidence of his past gang
crimes. He further contends that he was prejudiced by
cumulative error, and that the two 1-year prior prison term

4
enhancements under 667.5, subdivision (b), must be stricken
in light of recently enacted Senate Bill No. 136 (Senate Bill
136) (Sen. Bill No. 136 (2019–2020 Reg. Sess.)), which
modified subdivision (b), such that the enhancement now
applies only when the prior conviction was for a sexually
violent felony.
The People agree that the section 667.5, subdivision (b)
enhancements must be stricken, but otherwise contest
Brown’s contentions.
We order the abstract of judgment modified to reflect
that the two 1-year prior prison term enhancements imposed
under section 667.5, subdivision (b), are stricken, but
otherwise affirm the judgment.

FACTS

Prosecution

The Robbery

The victim, Phillip Clark, was a security officer who
made money on the side buying and re-selling cell phones.
Clark owned a firearm and had been trained to operate
firearms.
On March 8, 2016, Clark made arrangements to
purchase phones from former codefendant Barry Denman at
Denman’s home at approximately 10:30 p.m. Clark’s wife
was with him in the car, and had fallen asleep.

5
 Clark called Denman when he arrived. He exited the
car, but left it running. Denman came out of the house
carrying an empty plastic bag. He told Clark his “homie”
must have taken the phones. Clark said it was no problem
and told Denman to let him know when he had more phones
available. Denman pulled out a gun and told Clark to give
him his money. He pointed the gun at Clark’s head, holding
it no more than six inches away. When Clark moved his
head away from the gun, Denman hit him with it. Clark
tried to get back in his car. Denman reached over Clark,
turned off the ignition, and took the car keys.
Clark saw a person he later identified as Brown
approaching from across the street. Brown pointed a gun at
Clark from about 11 or 12 feet away. He ordered Clark to
get on his knees and strip. Denman continued to try to get
into the car. Clark got out of the car and kneeled. Brown
said to Denman, “I want to pop him. I want to pop him.”
Clark was afraid that Brown would shoot him. Denman
responded, “Nah, Hawk. We got what we want. Let’s go.”
Denman had Clark’s wallet, containing $1,246, which he had
taken from the car’s center console. Denman threw Clark’s
keys into the car, and he and Brown fled the scene on foot.
Clark drove away and called the police. The deputies
arrived soon thereafter and searched for the robbers, but
they were unable to locate them.
Based on his own experience purchasing guns, Clark
believed that both of the suspects’ guns were Glock .40 or .45
caliber.

6
 Clark thought that Denman was between 20 and 25
years old, about 5 feet, 8 inches tall, and weighed
approximately 180 to 200. Denman was wearing a black
hoodie and jeans.
Brown was a black male between 20 and 25 years old,
also wearing a black hoodie and jeans, and was between 5
feet, 10 inches tall, and 6 feet, 1 inch tall. He weighed about
200 to 240 pounds.3 Clark was within 11 to 12 feet of Brown
during the encounter, and looked at Brown’s face for
between 2 and 4 minutes. Clark was on his knees or seated
in the car the entire time that he could see Brown.

The Investigation

Los Angeles County Sheriff’s Department Detective
Edgar Solano was assigned to Operation Safe Streets and
investigated crimes committed by gangs, including the Park

3 When Clark initially spoke with law enforcement, he
described Brown as a Black male, age 20 to 25 years old, who
was 5 feet, 9 inches tall and weighed between 210 and 240
pounds. When Clark later saw Brown in court, he believed
that Brown was approximately 6 feet, 3 inches tall. Clark
believed that he initially misjudged Brown’s height because
he was on his knees the whole time that he looked at Brown.
When the men ran from the scene, Clark could tell that
Brown was taller than Denman, but could not estimate his
height more accurately. Although it was night when the
incident occurred, there was a streetlight, so Clark could see
Brown clearly.

7
Village Compton Crips (PVCC) and Santana Blocc Crips.
Detective Solano was assigned to the instant case on March
9, 2016, because it was within the gang territory that he
covered. The address 626 West Cypress Street “jumped out”
at him because he had previously investigated a shooting
there in 2012. The residence was Denman’s home, and
Denman was the victim in the 2012 incident.4 There had
also been a more recent incident at the same address in
December of 2015.
Detective Solano took note of the earlier incidents,
looked over the reports for the instant case and the prior
cases, and reviewed the description of the suspects. The
detective placed Denman in one of the two photographic six
packs because the incident took place at his address. He
generated the photographic six pack for the second suspect
based on the 2015 incident. Three people had been involved,
including Denman. Of the other two persons involved,
Brown most closely fit the description of the suspect, so
Detective Solano placed him in the six pack line-up. The
other individual who was involved in the 2015 incident was
lighter in weight. Detective Solano also based his decision to
put Brown in the line-up on the fact that Brown lived just up
the block and the suspects ran in that direction.
The detective interviewed Clark on March 10, 2016.
After the interview, he admonished Clark regarding
identification and showed him the two photographic line-

Denman admitted to Detective Solano that he was a
4

PVCC gang member in 2012.

8
ups. Clark identified both Denman and Brown immediately.
He identified Denman as the person who initiated the
robbery, hit him in the head with a gun, and stole his wallet.
He identified Brown as the person who made him kneel and
threatened to “pop” him. Clark was absolutely certain that
the individuals who he identified were the men who robbed
him.
The gang surveillance unit located and detained
Denman on March 17, 2016, and Detective Solano
interviewed him. Denman denied involvement in the March
8 incident and denied that he was a gang member.
Detective Solano obtained a search warrant for
Brown’s home at 728 South Anzac Circle, “right up the
street” from Denman’s home. Both Denman and Brown
lived within PVCC territory. Law enforcement searched
Brown’s residence on March 18, 2016. In particular, they
were looking for a .40 or .45 caliber semi-automatic firearm
based on Clark’s description, or any of the items that had
been taken from Clark in the robbery. Detective Solano
recovered a fully-loaded .40 caliber weapon in an upstairs
bedroom. Los Angeles County Sheriff’s Department
Detective Scott Lawler was also involved in the search, and
found a notebook with the word “Hawk” in it in Brown’s
bedroom on the first floor. The notebook contained a traffic
violation citation with Brown’s name on it. There was also
.40 caliber ammunition in Brown’s bedroom closet. Detective
Lawler identified numerous PVCC references in the

9
notebook. The deputies did not find any of Clark’s personal
property at the residence.
Brown’s cousin, Christopher Metcalf, lived at the same
address. Detective Solano informed Metcalf the firearm was
stolen, and Metcalf claimed that it belonged to him. Metcalf
was arrested and later convicted of receiving stolen property
for possession of the gun.
Detective Solano obtained a warrant, and Brown was
arrested. Detective Solano photographed tattoos on Brown’s
arm. One photograph depicted the letters “VL” tattooed on
Brown’s wrist. “VL” stands for Village Life, which is
associated with a criminal street gang.
Detective Lawler retrieved information relating to
Brown from the internet, including a photograph of Brown
with “Blacc Hawk Brown” in the upper left-hand corner.
The detective found the photograph relevant for multiple
reasons, including that “Blacc” was mis-spelled to include
two “c’s” for Compton Crips. Brown was wearing a Saint
Louis Cardinals hat, and held his fingers to form the letters
“VL,” for Village Life.

Expert Testimony on PVCC

Detective Lawler testified as an expert on PVCC for
the prosecution. He had been assigned to a gang unit for six
years. One of the gangs he was assigned to was PVCC. He
had contact with PVCC members during arrests, but also
spoke with them on a consensual basis.

10
 Detective Lawler testified regarding the borders of
PVCC territory, which included the Wilmington Arms
Complex or Wilmington Arms Compton Crip (WACC) located
at 700 West Laurel Street. He also testified regarding PVCC
members’ dress. PVCC gang members wear San Diego
Padres memorabilia, and Saint Louis memorabilia for the
Rams or the Cardinals, because the STL stands for Laurel
Street, which is the WACC address. They also wear Louis
Vitton brand clothing with “LV” written on it, which stands
for “Village Life.” PVCC is a rival of the Santana Blocc
Crips, and sometimes uses the initials “SK” for “Santa Blocc
killer.” Detective Lawler testified to two predicate offenses
committed by PVCC members. The primary criminal
activities of PVCC include vehicle theft, narcotics sales,
robberies, shootings, gun possessions, and murder.
Detective Lawler testified regarding the significance of
“snitching” in gang culture. “Snitching” is “telling on
somebody, testifying on somebody, providing law
enforcement with information.” Snitching is unacceptable in
gang culture. A snitch cannot be trusted. Gang members
commit crimes together and have to be able to rely on each
other. Someone who snitches is “no good.”
Detective Lawler testified that, given hypothetical facts
mirroring the facts of the instant case, in his opinion, the
crime would be committed for the benefit of, and in
association with, a criminal street gang. Two members of
the same criminal gang operating in concert establishes
“association.” In Detective Lawler’s experience, the vast

11
majority of gang-related crimes were committed by more
than one member of the same gang. Gang members commit
crimes together for protection, but also so that they can
corroborate each other’s misdeeds and increase their
reputations within the gang. The acts benefit the gang by
instilling fear in the community, which prevents citizens
from reporting crimes or testifying, and allows the gang to
operate with impunity. There is also monetary gain as a
result of many crimes, which aids in recruiting younger
people who view the commission of crimes as easy money.

Defense

Denman, who was incarcerated at the time, testified on
Brown’s behalf. Denman had pleaded guilty to the robbery
in exchange for an eight-year sentence. He was the person
who had identified himself to Clark as “Chris.” Another
individual assisted Denman in the crime, but Denman did
not know that person’s name. The other person was not a
gang member. Brown did not participate in the robbery.
Denman and Brown had been friends since childhood.
Denman denied that he was a gang member. He had
been arrested for possessing a shotgun on December 6, 2015.
Brown was with him at the time. To his knowledge, no one
was shot in front of his house on December 6, 2015.
Denman has never called the police and would never
“snitch” on anyone.

12
 Brown’s mother and football coach testified that Blacc
Hawk was Brown’s nickname from football. Brown’s mother
also testified that Brown had a tattoo with her name, her
daughters’ names, her granddaughter’s name, and the
letters “L” and “V”, which stand for love.

DISCUSSION

Two-Dismissal Rule

Brown first contends that the prosecution violated the
“two-dismissal rule” articulated in section 1387, which bars
further prosecution of a charge that has been dismissed
twice. He argues that the exception to this bar under section
1387.1, which permits another prosecution upon a showing
of excusable neglect, is inapplicable here, and that the
charges must be dismissed.
The People respond that the two-dismissal rule does
not apply, because counts are considered individually under
section 1387, and in this case each count was dismissed only
once. Alternatively, the People argue that the “excusable
neglect” exception applies in this case.
We agree with the People that each charge was
dismissed a single time, such that the two-dismissal rule
was never implicated.

13
 Legal Principles

Subject to certain exceptions, section 1387, subdivision
(a) provides, in pertinent part: “An order terminating an
action pursuant to this chapter, or Section 859b, 861, 871, or
995, is a bar to any other prosecution for the same offense if
it is a felony or if it is a misdemeanor charged together with
a felony and the action has been previously terminated
pursuant to this chapter, or Section 859b, 861, 871, or 995,
or if it is a misdemeanor not charged together with a
felony . . . .” “This is commonly called in felony cases the two
dismissal rule.” (People v. Mason (2006) 140 Cal.App.4th
1190, 1195 (Mason).) In assessing whether dismissal is
appropriate under the two-dismissal rule, each count is
evaluated individually. (Id. at p. 1197, citing People v.
Woods (1993) 12 Cal.App.4th 1139, 1155; Dunn v. Superior
Court (1984) 159 Cal.App.3d 1110, 1114.)
Section 1387.1, subdivision (a) creates an exception to
the two-dismissal rule for violent felonies: “Where an
offense is a violent felony, as defined in Section 667.5 and
the prosecution has had two prior dismissals, as defined in
Section 1387, the people shall be permitted one additional
opportunity to refile charges where either of the prior
dismissals under Section 1387 were due solely to excusable
neglect. In no case shall the additional refiling of charges
provided under this section be permitted where the conduct
of the prosecution amounted to bad faith.” Under the
statute, “‘excusable neglect’ includes, but is not limited to,

14
error on the part of the court, prosecution, law enforcement
agency, or witnesses.” (§ 1387.1, subd. (b).)
Pursuant to section 1387.2, the parties may agree to
proceed on the existing accusatory pleading in lieu of the
court issuing an order terminating the action. “For the
purposes of Section 1387, the action shall be deemed as
having been previously terminated. The defendant shall be
rearraigned on the accusatory pleading and a new time
period pursuant to Section 859b or 1382 shall commence.”
(§ 1387.2.)

Proceedings

In an information filed on September 23, 2016, in Case
No. TA139595, Brown was charged with one count of robbery
(§ 211 [count 1]) and one count of felon in possession of a
firearm (§ 29800, subd. (a)(1) [count 2]). On April 7, 2018, he
was convicted of the felon in possession of a firearm charge,
but the jury was unable to reach a verdict as to the robbery
charge. The prosecution indicated that if the court imposed
the maximum sentence of 12 years on the felon in possession
of a firearm charge, it would not pursue the robbery charge.
At the sentencing hearing on May 18, 2017, the court
sentenced Brown to 12 years in prison. The People stated
that “[i]n light of the sentence on count 2, we will not
proceed in count 1.” The trial court dismissed count 1
pursuant to section 1385, and took the trial date for that
count off calendar.

15
 Brown appealed his conviction for felon in possession of
a firearm (count 2), and this court reversed for instructional
error. The remittitur issued on October 24, 2018, and the
case was returned to the Superior Court.
On November 1, 2018, the case, still consisting solely of
the felon in possession of a firearm charge in count 2, was
called for a pre-trial conference.5 At the next pre-trial
conference hearing on November 7, 2018, Brown rejected the
People’s plea offer of six years in prison. The parties agreed
to dismiss the case and immediately re-file pursuant to
section 1387.2.
Trial on both counts commenced on February 21, 2019.
On February 26, 2019, after the jury had been empaneled
but before the presentation of evidence, defense counsel
orally moved for the case to be dismissed pursuant to section
1387. The prosecutor informed the court that he had not
prosecuted Brown in the first case, and that he would have
to speak to the prosecutor who handled the case regarding
the details of any prior dismissals. The prosecutor did not
believe the dismissal of the robbery charge could preclude re-
filing because the count was dismissed as part of a plea
bargain. The court stated that section 1387.1 could be

5 The minute order dated November 1, 2018, reflects
that the information for the matter that was the subject of
the pre-trial conference was filed on September 23, 2016,
and the case number was TA139595—the same case number
and information under which Brown was originally charged.
The minute order lists a single count: “Count 02:
29800(A)(1) PC FEL.”

16
implicated—i.e. that the prosecution could re-file only upon a
showing of “excusable neglect.” The court believed that the
prosecutor was entitled to notice, particularly because he
had not been involved in the dismissals. The court directed
the parties to state their positions on the matter in e-mails
to the court in lieu of moving papers. The court then
calendared the matter for later argument, and proceeded
with trial.
On February 27, 2019, the prosecutor e-mailed the
court a summary of the proceedings to date, and argued that
the court’s dismissal of the robbery charge at the sentencing
hearing did not operate as a dismissal for purposes of double
jeopardy.
On the same day, the former prosecutor filed a
declaration stating that, on November 2, 2018, the parties
agreed to dismiss and re-file the matter pursuant to section
1387.2, because the prosecution had difficulty locating Clark
to testify, and because both counsel had received the 690-
page transcript from the first trial only nine days prior to
trial.
In a discussion outside the presence of the jury on
February 27, 2019, the trial court noted that it had received
the e-mail from the prosecutor and an e-mail from defense
counsel regarding their positions. The court marked the e-
mails as exhibits A and B, respectively.
The trial court noted, “Also what’s interesting is that,
technically, only the 211 violation was dismissed initially.
The unlawful possession charge was not dismissed, but,

17
rather, is before the court because of a [remittitur] because it
got reversed on appeal.”
The prosecutor argued that the robbery count was not
dismissed for purposes of 1387. The prosecutor stated, “[i]t
was the court’s own motion, in light of the sentence to
dismiss,” and that the dismissal did not operate as an order
terminating the action pursuant to section 1385. He
clarified that the count was not dismissed until after Brown
had been sentenced. The trial court was not persuaded. The
trial court asked the People to address “what necessitated
the second dismissal” on November 7, 2018, i.e. whether
there was excusable neglect.
The People responded that the “excusable neglect”
standard did not apply because there was not a “two-time
dismissal.” The inquiry would only be relevant under
section 1387.1.
The court gave its indicated ruling: the dismissal of
the robbery charge at the sentencing hearing terminated the
action within the meaning of section 1387, but the
prosecution’s neglect would be excusable if the case had been
dismissed pursuant to section 1387.2 due to “witness issues.”
Argument on the motion to dismiss was heard on
February 28, 2019, while the jury was deliberating. The
court found that the robbery in count 1 qualified as a violent
felony, which triggered a possible exception to the two-
dismissal rule under 1387.1. The court stated that the only
issues to resolve were whether there was “excusable
neglect,” and whether the People’s conduct amounted to bad

18
faith under section 1387.5, which would bar the exception to
the two-dismissal rule.
Counsel clarified that the defense was not alleging bad
faith, only contesting excusable neglect. She argued that the
prosecutor had not exercised due diligence in attempting to
locate Clark—the prosecutor had not subpoenaed Clark or
engaged an investigator when he failed to return her phone
calls.
The prosecutor who agreed to the dismissal testified in
conformance with her declaration. She explained that, in
addition to other difficulties, Brown had been unwilling to
waive time.
Relying on Miller v. Superior Court (2002) 101
Cal.App.4th 728, and People v. Massey (2000) 79 Cal.App.4th
204, the trial court explained that it did not believe it was
required to find that the prosecution had acted with due
diligence before the court could find excusable neglect. The
court ruled, “And I find in this matter, there was excusable
neglect, specifically how [Brown] was not waiving time. It
now makes sense to the court as to why the D.A. decided to
preemptively dismiss it on the 51 of 60 date because they
had 600-plus pages of transcript to review, which is a valid
reason . . . .” The court denied the motion to dismiss.
The jury convicted Brown of robbery (count 1) and felon
in possession of a firearm (count 2).

19
 Analysis

In the opening brief, Brown asserts for the first time
that the chronology of dismissals and re-filings was as
follows:
“The first dismissal occurred on April 7, 2017.6 The
court dismissed the robbery count pursuant to section 1385
believing that the People were disinclined to proceed on it.
“The second dismissal occurred on August 24, 2018,
when the Court of Appeal reversed the judgment.
“The prosecution re-filed the case, including the robbery
charge and the related enhancements. On November 7, 2018,
the third dismissal occurred when the People dismissed the
case[, and] re-filed, with the consent of appellant, pursuant
to section 1387.2.” (Italics added.)
In a footnote, Brown explains that the information that
was purportedly filed following our remand “is not included
in the record. Presumably, however, there was a refiling

6 The parties appear to be confused regarding the date
of this first dismissal. Although the prosecutor suggested
that the People would not pursue the robbery count if the
court imposed a 12-year sentence in count 2 in a hearing on
April 7, 2017, the dismissal itself did not occur until after
the sentence was pronounced on May 18, 2017.

20
prior to December 10, 2018, otherwise there would have been
no related hearings.”7
At trial, the court did not indicate, nor did the defense
argue, that our reversal on appeal acted as a dismissal of the
felon in possession of a firearm charge. Additionally, neither
the trial court nor the parties suggested that both (or either)
of the charges were re-filed prior to the dismissal and re-
filing under 1387.2 on November 7, 2018. There is no
evidence in the record to support that there was a re-filing.
To the contrary, the minute order for the November 1, 2018
pre-trial conference indicates that the matter at issue was
count 2, a single charge of felon in possession of a firearm,
filed under the original case number and charged in the
same information as the offenses litigated at Brown’s
original trial. Thus, contrary to Brown’s assertions, on
November 7, 2019, the robbery charge had not yet been
revived, and it was the felon in possession of a firearm
charge alone that was dismissed by agreement under section
1387.2.
The record demonstrates that the robbery charge was
dismissed once, at Brown’s first sentencing hearing on May
18, 2017, based on the prosecutor’s belief that Brown was

7 The significance of the December 10, 2018 date is
unclear. The next scheduled hearings on both counts were
set for November 14 and 26, 2019.

21
being sentenced in accordance with the parties’ agreement.8
The felon in possession of a firearm charge was also
dismissed only once, on November 7, 2018, when the parties
agreed to proceed on the September 23, 2016 information
under section 1387.2, in lieu of an order of dismissal.
The trial court appears to have found that two
dismissals occurred because it did not recognize that counts
must be considered individually under the two-dismissal
rule. (See Mason, supra, 140 Cal.App.4th at p. 1197.) In
fact, although there were two dismissals total, there was
only one dismissal with respect to each count. The two-
dismissal rule was not implicated, and it was not necessary
for the court to determine whether the prosecution’s conduct
amounted to “excusable neglect.”
Although we disagree with the trial court’s reasoning,
we agree with its result, and we affirm its denial of Brown’s
motion to dismiss. (See People v. Zamudio (2008) 43 Cal.4th
327, 351, fn. 11, citing People v. Geier (2007) 41 Cal.4th 555,
582 [“Although this analysis is different from the trial
court’s, ‘we review the ruling, not the court’s reasoning and,
if the ruling was correct on any ground, we affirm’”].)

8 We presume, but need not decide, that the trial
court’s May 18, 2017 dismissal of the robbery count
terminated the proceedings with respect to that count for
purposes of section 1387.

22
Bifurcation of Gang Enhancement and Admission of
Prior Gang Crimes Evidence

Brown contends that the trial court abused its
discretion by refusing to bifurcate the gang enhancements,
and by admitting prior gang-related crimes evidence in 2009
and 2015. We reject both contentions.

Proceedings

Prior to trial, the prosecution moved to admit evidence
pursuant to section 1101, subdivision (b), that: (1) on
December 6, 2015, Brown and Denman were involved in a
shooting incident at the location of the instant crime; and (2)
on November 19, 2009, Brown and two self-admitted PVCC
members drove into rival gang territory and a “shootout”
occurred. The prosecution also sought to admit photographs
of Brown taken from social media sites on the internet that
suggested he was affiliated with PVCC.
In a hearing outside the presence of the jury, the trial
court ruled that social media evidence of Brown’s gang
involvement and affiliation was admissible. Defense counsel
objected solely on the basis that there was a lack of proper
foundation for the evidence.
The prosecutor then described the 2015 incident as a
“shootout between members in the community” that occurred
at the scene of the instant robbery, involving both Brown
and Denman. Surveillance video of the incident showed

23
Brown returning gunfire. The police recovered a shotgun
and a .45 caliber firearm—potentially the same caliber used
in the instant robbery9—from the scene. A court found that
Brown acted in self-defense at a preliminary hearing on the
matter. The prosecutor intended to call Los Angeles County
Sheriff’s Department Detective Nikolai Vavakin, who
conducted the investigation and reviewed the surveillance
video. When Brown was detained by officers, Detective
Vavakin heard him shout to the victim, “You a bitch. You
called the cops on the hood. You fucken snitch.” The
People’s gang expert would testify that the “phraseology”
was consistent with the incident being gang-related.
Defense counsel argued that the evidence was more
prejudicial than probative under Evidence Code section 352.
Brown was the victim in the 2015 incident and was not
prosecuted. It was determined that he was acting in self-
defense.
The prosecutor argued that the evidence was more
probative than prejudicial because it was anticipated that
Denman was traveling from Arizona State Prison to testify
that he was involved in the robbery, and that Brown did not
participate in the crime. The People sought to introduce the
incident to show the connection and involvement between
Brown and Denman, the use of firearms, and affiliation with
the gang in support of the gang enhancement, and to rebut
Denman’s credibility. The prosecutor did not seek to admit

9 Clark testified that the gun was either a .40 or .45
caliber firearm.

24
the surveillance video. He requested that he be permitted to
present evidence that Brown and Denman had been in the
same location, in gang territory, with a gun, only three
months prior to the robbery.
Defense counsel responded that it would not be
unusual for Brown and Denman to be together in that
location because it was Denman’s home, and Brown lived
just a few houses away.
The court ruled that the evidence was strongly
probative of the elements required to prove the gang
allegation. Given that both parties were certain that
Denman would testify that he committed the robbery but
Brown did not, the court found their association relevant.
The court permitted the defense to elicit that the shooting
was in self-defense, and that Brown lived in the area, to
alleviate any undue prejudice.
With respect to the November 19, 2009 incident, the
prosecutor stated that, when Brown was almost 18 years old,
he solicited two known PVCC members to drive with him
into rival gang territory. Shots were fired at their vehicle,
and someone in Brown’s vehicle returned gunfire. The
prosecutor sought admission of evidence of the 2009
incident, because it showed that Brown associated with
PVCC as early as 2009. The other occupants of the vehicle
self-admitted their gang affiliation, but Brown denied he was
associated with PVCC. Although Brown was a minor he was
charged with attempted murder in criminal court and
pleaded no contest to assault with a deadly weapon.

25
 The People did not intend to elicit evidence that Brown
fired shots or carried a firearm. Evidence of the 2009
incident would be presented to demonstrate Brown’s
affiliation and allegiance to the gang. The prosecutor
proposed to call Sergeant Sandoval, who created a field
identification card regarding Brown in connection with the
2009 incident.
Defense counsel objected that the 2009 incident was
unduly prejudicial under Evidence Code section 352.
The court precluded either side from mentioning the
incidents during voir dire and gave the defense additional
time to address the prosecution’s motion. The court noted
that recent changes in the law required that the prosecution
prove up any evidence specific to a defendant relating to a
gang allegation. The court stated that its only potential
concern was that the evidence would be unduly cumulative,
but the cumulative effect would depend on what other
evidence the People proposed to admit. However, even if the
court sustained an objection on the grounds that the
evidence was cumulative, if the defense attempted to rebut
the theory that Brown was an active gang member, the
evidence would be admissible for rebuttal purposes.
The prosecutor then asked whether the court had ruled
regarding bifurcating the gang enhancement.10 Citing
People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez), the
prosecutor argued that the gang allegation was inextricably

10 There is no other mention of a motion to bifurcate in
the record.

26
intertwined with the robbery charge. The People intended to
show that the crime was committed to benefit the gang and
committed in association with a gang member.
The defense submitted on the issue without argument.
The court denied the request to bifurcate the gang
enhancement, because the gang allegation and charge were
intertwined, and because Denman was testifying on Brown’s
behalf. Any shared gang affiliation would be relevant to
Denman’s credibility.
The following day the court and the parties again
discussed admission of the gang evidence outside the
presence of the jury. The prosecutor stated that he intended
to present only photographic evidence from the internet, and
the evidence of the December 2015 and November 2009
incidents, to prove the gang allegation. The trial court found
that, so limited, the evidence would not be overly
cumulative.
Defense counsel argued that evidence of the 2009
incident was unduly prejudicial because the incident was
remote in time, Brown was a minor when the offense was
committed, and it was cumulative to the 2015 incident.
The court responded that, because the People had to
prove up the gang allegation, Brown’s participation in
activity consistent with being a gang member in 2009 was
circumstantial evidence that he continued to be a PVCC
member in 2015, and not unduly prejudicial. The court
admitted the evidence.

27
 Defense counsel then reminded the court that the 2015
case had been dismissed. The court responded that counsel
would be allowed to elicit testimony that the case was
dismissed because Brown was deemed to have acted in self-
defense, but that the incident was relevant because Brown
was with Denman. The motion to admit the 2009 incident
was granted.11
Detective Solano testified that he was familiar with a
prior incident at 626 West Cypress Street in December of
2015. Defense counsel asked to approach, and the court
called a recess to discuss the testimony. Defense counsel
asked that the 2015 incident be sanitized because it would
be highly prejudicial for the detective to mention that Brown
discharged a firearm. The court stated that if Detective
Solano was not present any testimony about the details of
the incident would be hearsay. The court limited Detective
Solano’s testimony regarding the December 2015 incident to
the fact that Detective Solano’s knowledge of the incident
caused him to focus on Brown as a suspect. The detective
testified that he was aware of the December 2015 incident
and used his knowledge of the people involved to generate a

11 The court appointed a bar panel attorney to speak
with Denman regarding testifying in the case. In a
discussion outside the presence of the jury, the bar panel
attorney confirmed that there were no potential Fifth
Amendment issues for Denman, and that Denman still
intended to testify on Brown’s behalf. In Brown’s prior trial,
Denman testified that he participated in the robbery, but
Brown did not.

28
line-up, but he did not testify regarding the details of the
incident.
Los Angeles County Sheriff’s Department Sergeant
Jose Sandoval testified that, when he was a detective, he
investigated an incident reported as an assault with a deadly
weapon, which occurred at the intersection of Santa Fe and
Penny Streets in Compton on November 19, 2009. The
location was within the territory of the Santana Blocc Crips
gang. Sergeant Sandoval interviewed Brown at the police
station in connection with the incident and noted the
information Brown gave him on a field identification card.
The sergeant explained that field identification cards
document encounters with suspected gang members. He
suspected that Brown was a gang member because of his
“gang dress,” the area where the incident took place, and
Brown’s companions. When Sergeant Sandoval spoke to
Matthew Mundon, who was with Brown at the scene,
Mundon admitted to being a member of PVCC.
Defense counsel objected to the testimony regarding
Mundon’s self-admitted gang membership on hearsay
grounds. A side bar was held and the court sustained the
objection.
The prosecutor then indicated that he intended to elicit
testimony regarding the field identification card based on
the sergeant’s discussion with Brown, which he argued was
admissible as an admission of a party. The court ruled that
the evidence was admissible on that basis.

29
 Defense counsel argued that the details of the 2009 and
2015 incidents should only be admitted if Denman testified
that he and Brown were not gang members. She conceded
that testimony regarding the preparation of the field
identification card with respect to Brown was admissible,
but not the details of the incidents or Brown’s alleged
involvement, unless that evidence was admitted for
impeachment purposes.
The court ruled that the prosecution’s expert could
opine that the area where the 2009 incident took place was
in Santana Blocc Compton Crips territory, and that any
statements Brown made to the sergeant were admissible.
None of the other evidence would be admitted.
Defense counsel argued that any details of the incident
that Brown relayed to Sergeant Sandoval should not be
admissible if Brown did not testify. The court disagreed.
The court ruled that all of Brown’s statements were
admissions of a party, probative of the gang allegation, and
not unduly prejudicial. After further discussion, the
prosecutor proposed utilizing Brown’s statement regarding
his location and the expert’s opinion that the location was in
gang territory to establish that Brown was in gang territory.
Defense counsel stated that she did not object if the evidence
was elicited in that manner.
Trial resumed, and Sergeant Sandoval testified that he
completed a field identification card on Brown, which
indicated that Brown was a suspected PVCC member, but
that Brown’s affiliation with the gang was not confirmed.

30
The card indicated that Brown was arrested with Matthew
Mundon and Walter Brooks for assault with a deadly
weapon. He was in “gang dress” in a “gang area.” Brown
told the sergeant that he was at 700 West Laurel Street
before he got into the car with Mundon and Brooks.
Los Angeles County Sheriff’s Department Deputy
Javier Guzman testified that on December 6, 2015, he
responded to a call of gunshots heard at 731 South
Matthisen Street. When he arrived, Brown was at the scene:
“[H]e was detained by assisting deputies. And as we were
detaining all parties -- all involved parties, he had made
some comments about someone calling the cops and being a
snitch.” “He said, ‘You bitch. You called the cops on the
hood. You fucking snitch.’” Deputy Guzman observed a
victim lying on the ground with a gunshot wound.
Sergeant Nikolai Vavakin was a detective assigned to
the gang unit in Compton when he responded to a call on
December 6, 2015. He was called because the incident took
place in PVCC territory. Three individuals shot at Lorenzo
Tumbling, a member of the West Side Piru street gang,
which was a rival of PVCC at that time. Tumbling was shot
in the arm and had to be transported to the hospital.
Sergeant Vavakin reviewed surveillance video of the incident
depicting Brown at the scene. A single expended .45 caliber
cartridge was found where the incident occurred.
On cross-examination, Sergeant Vavakin testified that
Brown was arrested, but the case against him was dismissed

31
at the preliminary hearing because the court found that he
acted in self-defense.
Detective Lawler testified that on November 19, 2009,
he came into contact with Brown at the corner of Santa Fe
Avenue and Penny Street in Compton. The area was in
Santana Blocc Compton Crip territory. The victim of a
shooting had reported the incident. Detective Lawler spoke
with Brown, who admitted he was a PVCC member.

Bifurcation of the Gang Enhancements

Legal Principles

We review the trial court’s denial of a motion to
bifurcate a gang enhancement from the substantive crimes
for abuse of discretion. (People v. Hernandez, supra, 33
Cal.4th at p. 1048.) A defendant can meet this burden by
showing the evidence supporting the enhancement has scant
relevance to the substantive crimes, and trying the two
together would be unduly prejudicial. (Id. at p. 1049.) “But
evidence of gang membership is often relevant to, and
admissible regarding, the charged offense. Evidence of the
defendant’s gang affiliation—including evidence of the
gang’s territory, membership, signs, symbols, beliefs and
practices, criminal enterprises, rivalries, and the like—can
help prove identity, motive, modus operandi, specific intent,
means of applying force or fear, or other issues pertinent to
guilt of the charged crime. [Citations.] To the extent the

32
evidence supporting the gang enhancement would be
admissible at a trial of guilt, any inference of prejudice
would be dispelled, and bifurcation would not be necessary.”
(Id. at pp. 1049–1050.) The fact that some of the
enhancement evidence is admissible to prove the substantive
gang charge is one factor to consider, but is not dispositive.
(Id. at p. 1050.)

Analysis

The People assert that by failing to make an adequate
record regarding the issue, Brown forfeited the argument
that the trial court abused its discretion by refusing to
bifurcate the gang enhancements from the substantive
offenses. The record is scant, but the prosecution argued its
position and the trial court ruled on the matter. In an
analogous situation, our Supreme Court has stated that it is
at least arguable that a claim is preserved. (People v. Valdez
(2012) 55 Cal.4th 82, 143.) We need not decide whether the
claim has been forfeited, however, as the argument fails on
the merits.12
In this case, the gang enhancements and the robbery
were intertwined. Brown’s defense was one of mistaken

12Brown’s argument that his due process rights were
violated by the trial court’s refusal to bifurcate, in contrast,
is waived. There is no indication in the record that the
issue was argued by the parties or considered by the trial
court.

33
identity. Brown was not arrested at the scene, and it was
uncontested that Denman, who had pleaded no contest to
committing the robbery, would testify that Brown did not
participate in the robbery. The gang-related evidence tended
to show that (1) Brown had been involved in an incident at
the same location with the same companion, only three
months before the charged incident, and (2) Denman was
connected to Brown not only as a friend, but also through
their mutual gang membership, and that PVCC had a strict
code against “snitching.”
Denman and Brown were both involved in an incident
at the same location where the robbery took place, only a few
months earlier. The fact that an admitted perpetrator of the
charged offense was the defendant’s partner in an uncharged
crime is highly probative of identity. (People v. Haston
(1968) 69 Cal.2d 233, 249–250.) “There is only one [Justin
Dijon Brown], and his conjunction with [Denman] in [an]
earlier [crime], together with [Denman’s] admitted
participation in the robber[y] charged, supports the inference
that [Brown] and not some other person was his accomplice
in those charged offenses.” (Id. at p. 249.) That the
uncharged offense took place within such a short time before
the robbery at the same location further supports the
conclusion that the perpetrators were the same.
The evidence also undermined Denman’s credibility.
In addition to being connected by friendship, Brown and
Denman were tied by the arguably stronger bond of gang
membership, with its stringent code against snitching.

34
Detective Solano explained that the prohibition against
“snitching” on other gang members was central to gang
culture; gang members had to be able to rely on one
another’s silence to successfully commit crimes and advance
their reputations. Denman echoed this sentiment when he
testified that he would never snitch. Brown’s statements at
the scene of the December 2015 incident—“‘You bitch. You
called the cops on the hood. You fucking snitch.’”—amplified
the importance of this code among gang members. The
evidence tended to show that, as fellow PVCC members,
Brown and Denman were bound by this code, providing a
strong reason for Denman to lie.
In light of the importance and probative value of the
gang-related evidence to Brown’s participation in the
robbery and the credibility of Denman’s account of the
robbery, we cannot say that the trial court abused its
discretion by refusing to bifurcate the gang allegations.

Admission of Prior Gang-Related Crimes
Evidence

Legal Principles

“Only relevant evidence is admissible . . . .” (People v.
Harris (2005) 37 Cal.4th 310, 337 (Harris); Evid. Code,
§§ 210, 350.) Evidence is relevant if it “‘tends “logically,
naturally, and by reasonable inference” to establish material
facts such as identity, intent, or motive.’ [Citation.]”

35
(Harris, supra, 37 Cal.4th at p. 337.) Trial courts have broad
discretion in determining whether evidence is relevant.
(Ibid.) We review a trial court ruling on the admissibility of
evidence for an abuse of that discretion. (People v. Waidla
(2000) 22 Cal.4th 690, 717.)
“[E]vidence [that] a person committed a crime, civil
wrong, or other act” is admissible when it is relevant to
prove some fact such as “motive, opportunity, intent,
preparation, plan, knowledge, identity, [or] absence of
mistake or accident” (Evid. Code, § 1101, subd. (b)), “‘or to
overcome any material matter sought to be proved by the
defense.’ [Citation.]” (People v. Alcala (1984) 36 Cal.3d 604,
631, superseded by statute on other grounds as stated in
People v. Falsetta (1999) 21 Cal.4th 903, 911). Even when
evidence is relevant under Evidence Code section 1101,
subdivision (b), however, it must be excluded under Evidence
Code section 352 if its prejudicial effect substantially
outweighs its probative value. (People v. Ewoldt (1994) 7
Cal.4th 380, 404.)
Evidence Code section 352 is intended to prevent
undue prejudice, that is “‘“evidence which uniquely tends to
evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues,”’ not
the prejudice ‘that naturally flows from relevant, highly
probative evidence.’ [Citations.]” (People v. Padilla (1995)
11 Cal.4th 891, 925, overruled on other grounds by People v.
Hill (1998) 17 Cal.4th 800.) The courts recognize that gang
evidence may have a “highly inflammatory” impact. (People

36
v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.)
“[E]vidence of gang membership is often relevant to, and
admissible regarding, the charged offense. Evidence of the
defendant’s gang affiliation—including evidence of the
gang’s territory, membership, signs, symbols, beliefs and
practices, criminal enterprises, rivalries, and the like—can
help prove identity, motive, modus operandi, specific intent,
means of applying force or fear, or other issues pertinent to
guilt of the charged crime.” (Hernandez, supra, 33 Cal.4th at
p. 1049.) Gang evidence may also be relevant to credibility.
(See People v. Burgener (2003) 29 Cal.4th 833, 869 [gang
evidence tending to show why a witness might be reluctant
to testify was probative and admissible].) This court will not
disturb a trial court’s exercise of discretion under Evidence
Code section 352 absent a showing that the trial court
abused its discretion. (People v. Branch (2001) 91
Cal.App.4th 274, 281–282.)

Analysis

As we have discussed, the gang evidence in this case
was highly probative of identity and credibility. Any
prejudice to Brown was due to its relevance, rather than to
some unique tendency to provoke bias against him for
reasons unrelated to the issues.
Additionally, the evidence was not improperly
inflammatory, because the trial court restricted the evidence
to limit its prejudicial effect. With respect to the 2009

37
incident, Sergeant Sandoval testified that he responded to a
report of assault with a deadly weapon in Santana Blocc
Compton Crip Territory and generated a field identification
card on Brown in which he indicated that he suspected
Brown was a gang member due to the location, his manner
of dress, and companions. Detective Lawler testified that he
also came into contact with Brown in Santa Blocc Compton
Crip territory in November 2009, after the victim of a
shooting reported an incident. Brown admitted to Detective
Lawler that he was a PVCC member. No evidence was
presented that Brown himself was arrested or committed a
crime, or that he initiated the incident by soliciting two
PVCC members to drive into rival Santa Blocc Compton Crip
territory.
Regarding the 2015 incident, Deputy Guzman testified
that he responded to a call of gunshots heard at 731 South
Matthisen Street. Deptuy Guzman observed a victim lying
on the ground with a gunshot wound. Brown was present at
the scene, where the deputies were detaining “all involved
parties,” and commented that someone had called the police
and snitched. Sergeant Vavakin testified that he responded
to the December 2015 call because the incident took place in
PVCC territory. Three individuals had shot a member of the
West Side Piru street gang, which was a rival of PVCC, in
the arm. Sergeant Vavakin reviewed surveillance video of
the incident depicting Brown at the scene. He testified that
deputies recovered a single expended .45 caliber cartridge.
On cross-examination, Sergeant Vavakin testified that

38
Brown was arrested, but that the case against him was
dismissed at the preliminary hearing because the court
found that he acted in self-defense.
There was little to no evidence of Brown’s specific role
in the two incidents. The evidence tended to show that he
was a gang member, and that he had recently been involved
in an incident in Denman’s company, at the location where
the robbery took place. Defense counsel elicited that Brown
had been arrested, but she also elicited that a judge found
Brown had acted in self-defense. In short, the evidence of
the two incidents was carefully sanitized to reveal only the
evidence that was relevant to the prosecution’s case and
none of the peripheral details that might tend to unfairly
prejudice Brown. Under the circumstances, we cannot say
that the trial court abused its discretion in admitting the
evidence of the 2009 and 2015 incidents.13

Cumulative Error

Brown contends that the cumulative errors at trial
deprived him of due process. As we have concluded that the
trial court did not err, the contention necessarily fails. (See
People v. Hines (1997) 15 Cal.4th 997, 1061.)

13 Brown argues for the first time on appeal that
admission of the gang evidence violated due process because
the evidence had no relation to the charged offenses. Failure
to raise the issue at trial forfeits the claim. (People v. Geier,
supra, 41 Cal.4th at pp. 609–611.)

39
Prior Prison Term Enhancements

We agree with the parties that Senate Bill No. 136
applies in Brown’s case, and we modify the judgment to
strike the two 1-year enhancements imposed under section
667.5, former subdivision (b).
As relevant here, section 667.5, former subdivision (b),
mandated that a one-year enhancement be imposed “for each
prior separate prison term or county jail term imposed under
subdivision (h) of Section 1170 or when sentence is not
suspended for any felony; provided that no additional term
shall be imposed under this subdivision for any prison term
or county jail term imposed under subdivision (h) of Section
1170 or when sentence is not suspended prior to a period of
five years in which the defendant remained free of both the
commission of an offense which results in a felony
conviction, and prison custody or the imposition of a term of
jail custody imposed under subdivision (h) of Section 1170 or
any felony sentence that is not suspended. A term imposed
under the provisions of paragraph (5) of subdivision (h) of
Section 1170, wherein a portion of the term is suspended by
the court to allow mandatory supervision, shall qualify as a
prior county jail term for the purposes of the one-year
enhancement.”
The trial court imposed and stayed the section 667.5,
former subdivision (b) enhancements in Brown’s case based
on his convictions for assault with a deadly weapon in
violation of section 245, subdivision (a)(2), and felon in

40
possession of a firearm in violation of 29800, subdivision
(a)(1). Senate Bill No. 136 eliminates the one-year prior
prison term enhancement for all felonies that are not
sexually violent offenses, and thus lessens the penalty for
prisoners, like Brown, whose prior prison terms were
imposed for non-sexually violent felonies. Because Brown’s
appeal was not yet final on January 1, 2020, when Senate
Bill No. 136 became effective, Senate Bill No. 136 applies.
(People v. Winn (2020) 44 Cal.App.5th 859, 872–873; People
v. Lopez (2019) 42 Cal.App.5th 337, 341–342.)
Section 667.5, subdivision (b) no longer authorizes
imposition of enhancements based upon the offenses for
which Brown was convicted. We agree with the parties that
while a partial reversal usually warrants remand to allow
the court to exercise its full sentencing discretion (People v.
Buycks (2018) 5 Cal.5th 857, 893–895), here the trial court
already stayed the enhancements, so there is no other
manner in which the court could change Brown’s sentence
without imposing a longer sentence than is permitted
(People v. Lopez (2019) 42 Cal.App.5th 337, 342 [remand is
not necessary where there is no need for the trial court to
exercise discretion]). We order that the abstract of judgment
be modified to reflect that the two 1-year enhancements
imposed and stayed under section 667.5, former subdivision
(b) are stricken.

41
 DISPOSITION

The judgment is modified to reflect that the two 1-year
prior felony conviction enhancements imposed under section
667.5, subdivision (b), are stricken. As so modified, the
judgment is affirmed. The clerk of the superior court is
directed to prepare an amended abstract of judgment and to
forward it to the Department of Corrections and
Rehabilitation.

MOOR, J.

We concur:

RUBIN, P. J.

BAKER, J.

42