Filed 3/26/13 P. v. Glasgow CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.

CHRISTOPHER NATHANIEL GLASGOW et al.,
Defendants and Appellants. B237077
(Los Angeles County Super. Ct. No. TA115998)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, Eleanor J. Hunter, Judge. Affirmed in pa rt, reversed in part and remanded with
directions. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Glasgow. Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Annetta Alvarez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lanc e E. Winters, Assistant Attorney General, Steven E. Mercer and Kathy S. Pomerantz, Deputy Attorney s General, for Plai ntiff and Respondent.2 Appellant Christopher Nathaniel Gl asgow challenges his convictions for possession of cocaine base and marijuana for sale, possession of firearms and body armor by a felon, and unlawful possession of ammunition. He maintains that his judgment of conviction must be reversed due to insufficiency of the evidence and sentencing error. Respondent acknowledges certain errors in Glasgow’s sentence,
and also contends that it contains othe r defects requiring rese ntencing. Although we reject Glasgow’s contentions regardi ng the sufficiency of the evidence, we conclude that his sentence is incorrect, and thus reverse the judgment against him for resentencing. Appellant Annetta Marie Alvarez, Gl asgow’s codefendant, was convicted of possession of cocaine base and marijuana fo r sale, storing a controlled substance, and unlawful firearm activity. Her court- appointed counsel has filed an opening brief raising no issues. Following our independent examination of the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ), we conclude that no arguable issues exist, and affirm the judgment against her.

PROCEDURAL BACKGROUND On March 22, 2011, an information was filed, charging Glasgow and Alvarez in counts 1 and 2 with possession of cocaine base and marijuana for sale (Health & Saf. Code, §§ 11351.5, 11359). The info rmation further charged Glasgow in counts 3, 5, and 6 with possessi on of a firearm as a felon (former Pen. Code, § 12021, subd. (a)(1)), in count 4 with unlawful possession of ammunition (former Pen. Code, § 12316, subd. (b)( 1)), in count 7 with possession of body armor as a violent felon (former Pen. Code, § 12370, subd. (a)), and in counts 8 and 9 with the transportation of a controll ed substance for sale (Health & Saf.3 Code, § 11352, subd. (a)). 1 The information also char ged Alvarez in count 10 with providing storage for a controlled substa nce (Health & Saf. Code, § 11366.5, subd. (a), and in counts 11 and 12 with unlawful firearm ac tivity (former Pen. Code, § 12021, subd. (d)(1)). The information asserted a gang allega tion against appellants with respect to each count (Pen. Code, § 186.22, subd. (b)(1)(A)). The information further alleged, under count 1, that Glasgow was personally armed during the offense (Pen. Code, § 12022, subd. (c )), and under count 2, that a principal was armed during the offense (Pen. C ode, § 12022, subd. (a)(1)). In addition, accompanying all the counts against Glasgow were a llegations that he had suffered prior convictions (Pen. Code, §§ 667, subd. (a )(1), 667.5, subd. (b)), including two “strikes,” for purposes of the “Three Strike s” law (Pen. Code, §§ 667, subds. (b) - (i), 1170.12, subds. (a) - (d)). The info rmation also alleged a prior conviction enhancement against Glasgow under counts 1, 8, and 9 (Health & Saf. Code, 11370.2, subd. (a)). Appellants pleaded not guilty and denied the special allegations. The trial was bifurcated regarding Glasgow’s prior c onvictions. On October 5, 2011, a jury found appellants guilty as charged and f ound the gang and gun use allegations to
be true. 2 Later, an amended information was filed against Glasgow, alleging additional prior convictions. On Nove mber 2, 2011, after finding the prior conviction allegations to be true, the tria l court denied Glasgow’s motion to strike

1 The Legislature has repealed several pr ovisions of the Penal Code under which appellants were convicted and replaced them with new statutes carrying over the repealed provisions without substantiv e change. (Cal. Law Revision Com. com., 51D pt. 1 West’s Ann. Pen. Code (2011 supp.) foll. § 12000, p. 32.) For simplicity , we refer to the provisions under their former numbers.

2 During the jury trial, Glasgow stipulat ed that he had a prior felony conviction.4 his prior convictions, and sentenced him to an aggregate term of 213 years to life.
The court also sentenced Alvarez to an aggregate term of five years.

FACTS
A. Prosecution Evidence
1. Background Los Angeles Police Department (L APD) Detective Erik Shear, a gang expert, testified that Bounty Hunter Bloods are a gang whose territory lies primarily in Watts. He opined that Glas gow belongs to the Bounty Hunter Bloods, and that Alvarez and Glasgow’s sister Liza are “associates” of the gang who support its activities. 3 In March 2008, Alvarez leased a reside nce on 108th Street in Los Angeles.
She received assistance from the Los Angeles housing author ity in order to pay her rent. On March 3, 2010, th e management company res ponsible for the residence
informed Alvarez that her rent was to be increased, and that the housing authority intended to decrease her subsidy. The ma nagement company also told her that she could remain in the residence if she paid a portion of the rent . On March 23, 2010, Alvarez notified the management company that she intended to remain in the residence for another year.

2. February 11, 2010 Cocaine Sale (Count 8) In early 2010, Rock Holcomb, a sp ecial agent with the United States Department of Justice, Bure au of Alcohol, Tobacco, a nd Firearms (ATF), oversaw “controlled buys” of narcotic s by a confidential informant, Deshun Jones. Jones

3 Because Glasgow and his sister share a surn ame, we refer to her by her first name.5 was a member of the Bounty Hunter Bl oods. On February 11, 2010, Holcomb, together with Detective Shear, arranged for Jones to meet Glasgow in a parking lot, where Glasgow sold Jones 44.9 grams of cocaine base for $1,600.

3. March 4, 2010 Cocaine Sale (Count 9) On March 4, 2010, Holc omb arranged another mee ting between Jones and Glasgow during which Jones paid Glasgow $1, 600 for 49.2 grams of cocaine base.

4. April 14, 2010 Offenses (Counts 1-7, 10-12) During Detective Shear’s investigation into Glasgow’s cocaine sales, he obtained information that Glasgow stored narcotics at Alvarez’s 108th Street residence. At 11:30 a.m. on April 14, 20 10, Shear and other LAPD officers arrived
at the residence to execute a search warrant. They waite d for Glasgow to leave the residence, as Shear wanted to detain him outside the re sidence while it was
searched. Shortly before 3:00 p.m., an SUV arrived at the residence containing Glasgow, his sister Liza, and Bobby Irvin , a Bounty Hunter Bloods gang member. After Glasgow unlocked the residence’s front door, he and the other occupants of
the SUV entered the residence for ten minutes and then returned to the SUV. In an unmarked patrol car, LAPD Officer Ma nuel Moreno followed the SUV, which
Liza drove. When Moreno saw Liza disr egard a red light, he radioed marked patrol cars to intercept the SUV. After five or six patrol cars initiated a traffic stop, Liz halted the SUV, but she and the ot her occupants refused to leave the SUV when the police officers ordered them to do so. Instead, she drove away. Moreno
and the other officers followed her. After the SUV drove a distance, Glas gow got out and ran through a housing project. LAPD Officer Hamilton Alvare nga, who chased Glasgow on foot, saw6 him handle a gun and then throw it onto the roof of a project building. Moreno remained in his vehicle, but also saw Glasgow throw a gun onto a rooftop as he ran from pursing officers. When arrested, Gl asgow had $1,845 in cash. Following the arrest, a loaded gun was recove red from the rooftop. Moreno obtained Glasgow’s keys to th e 108th Street residence and gave them to Detective Shear. During the s earch of the residence, officers found Glasgow’s driver’s license in the living room. They also saw adult male and female clothing in the la undry room and a bedroom. 4 Within that bedroom’s closet, they discovered a purse containi ng approximately six ounces of rock cocaine, a laptop bag containing approxima tely three ounces of marijuana, a partially loaded assault rifle, an LAPD armored vest, a weight scale and plastic sandwich bags, as well as a man’s shirt, a woman’s shoes, and a receipt for car repairs bearing Glasgow’s name. The be droom’s dresser disclosed a photograph of Glasgow and Alvarez, a loaded handgun, and ammunition. A man’s motorcycle jacket and hats were also discovered in the bedroom, and two toothbrushes were found in the adjoining bathroom. Detective Shear opined that the cocaine and marijuana found in the residence were possessed for the purposes of sale. He noted that the quantities of cocaine and marijuana were too large for personal use, that no signs of drug use were found in the residence, and that there was evidence of sales, namely, the weight scale and sandwich bags.

4 In addition, the officers saw children’s clothing inside the residence.7 5. Subsequent Events Alvarez was not immediately arrested after the search of the 108th Street residence. According to the records of the management company responsible for the residence, on April 16, 2010, she m oved without providing the required 30 days notice or paying her final month’s rent. Later, on April 22, 2010, Alvarez spoke by phone with Glasgow, who was incar cerated. An audio recording of the call was played for the jury. During the call, after Alvarez said that she had developed a “funny feeling,” Glasgow said that Alvare z “could have moved the groceries and the furniture on [her] own” and that “the place was burnt” because too many people visited it. Detective Shea r opined that Glasgow and Alvarez were speaking in code, and that Glasgow wa s telling Alvarez that she should have moved the drugs and guns from the 108th Str eet residence when she suspected that too many people were aware of it.

6. Gang Evidence
Detective Shear testified that the Bounty Hunter Bloods engage in many crimes, ranging in seriousness from vanda lism and street drug sales to shootings, assaults with deadly weapons, and murder s. He opined that the crimes charged against appellants had been committed for the benefit of that criminal street gang. (Pen. Code, § 186.22, subd. (b)(1)(A).)

B. Glasgow’s Defense Evidence Bettye McCall testified that on April 13, 2010, she met with Glasgow and Liza to discuss his application to rent an apartment she owned on South Normandie. The application identified hi s residence as an address on West 27th Street. McCall asked Glasgow to pay the deposit and first month’s rent the following day.8 According to Glasgow’s mother Joyce, in April 2010, Glasgow lived with her on West 27th Street, worked at a mo torcycle shop called the “Hog Pit,” and had several girlfriends, incl uding Alvarez. Joyce did not believe that the men’s clothing found in the 108th Street residence belonged to Glasgow because they were the wrong size. She also testified th at Liza owned a gun. On April 11 or 12, 2010, Joyce lent Glasgow approximately $30,000, including $2,000 to pay McCall. Glasgow testified that between 1:30 and 2:00 p.m. on April 14, 2010, Alvarez asked him by phone to transport a vacuum cleaner from the 108th Street residence to a Maie Avenue apartmen t she had rented. Glasgow picked up Alvarez’s keys from her son a nd went to the 108th Street residence in an SUV with Liza and Bobby Irvin. Upon entering the resi dence, he discovered that the vacuum
cleaner had to be assembled before it c ould be moved, so he decided not to transport it. After Glasgow, Liza, and Irvin left the residence, police cars forced Liza to stop their SUV. Glasgow denied that Liza ran a red light. He further maintained
that when she offered her driver’s license and registration to the officers, they refused to accept them, and instead orde red the SUV’s occupants to leave it. Instead of complying, Liza told Glasgow, “I got my gun, ” and sped away. Liza soon stopped the vehicle, tossed her gun onto Glasgow’s lap, and told him to run. He left the SUV, immediately threw the gun on the ground, and tried to flee, but
was arrested. According to Glasgow, he met with Jones to “hook him up” with someone
who sold fake insurance cards . He further testified that the assault rifle in the 108th Street residence was the property of Alvarez’s “baby daddy,” and that the drugs in the residence belonged to Alvarez’ s son, who sold drugs. He also stated that as a parolee with two strikes, he trie d to avoid visiting the residence due to the potential criminal activity in it.9 C. Alvarez’s Defense Evidence Alvarez testified that after she bega n dating Glasgow in 2009, he frequently visited the 108th Street residence and stay ed overnight. In February 2010, she sought approval from the housing authority to rent a new residence. On April 1, 2010, she signed a lease for an apartment on Maie Avenue, obtai ned a key for it, and began moving in. The la st date she entered the 108th Street residence was April 9, 2010, when she gave Glasgow her only key to it. She testified that she did not permit Glasgow to store the drugs and guns found in the residence, and that she
never saw them while she lived there. She also denied that her son had a key to the
108th Street residence. Tanisha Bailey, Alvarez’s friend, testif ied that on April 9, 2010, she visited the 108th Street residence, and encounter ed Alvarez and Glasgow. After Alvarez gathered up some clothes, Bailey and Al varez walked to an apartment on Maie Avenue. Alvarez had a key to the apar tment, which contained furniture and Alvarez’s children. According to Bailey, some of the furniture shown in the photographs of the LAPD search of the 10 8th Street residence differed from the furniture she saw there on April 9, 2010.

D. Rebuttal and Surrebuttal In rebuttal, the prosecution presen ted an audio recording of Officer Moreno’s April 14, 2010 radio transmissi ons, which disclosed that after he reported that the SUV had run a red light, he requested a ladder to retrieve a gun. In addition, the prosecution offered field identification cards for Glasgow indicating that he was a member of th e Bounty Hunter Bloods, and evidence that no motorcycle shop called the “Hog Pit” wa s located at the address Glasgow had provided for it.10 In surrebuttal, Joyce Glasgow testifie d that she had recently visited the Hog
Pit.

DISCUSSION
I Glasgow Glasgow contends (1) that his convic tions for possession of controlled substances for sale and possession of fi rearms and body armor as a felon fail for want of substantial evidence, and (2) that there was sentencing error. As explained below, although we reject hi s challenges to the sufficien cy of the evidence, we
conclude that his sentence disc loses errors requiring a reversal for resentencing.

A. Substantial Evidence We begin with Glasgow’s contentio ns regarding the adequacy of the evidence, which target his convictions for the offenses on April 14, 2010.

1. Standard of Review Our inquiry follows established principles. “In determining whether the evidence is sufficient to support a convic tion . . . , ‘the relevant question is whether, after viewing the evidence in th e light most favorable to the prosecution,

any rational trier of fact could have foun d the essential elements of the crime beyond a reasonable doubt.’ [Citations.] U nder this standard, ‘an appellate court
in a criminal case . . . does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasona ble doubt.’ [Citation.] Rather, the reviewing court ‘must review the whole reco rd in the light most favorable to the judgment below to determine whether it disc loses substantial evidence -- that is, evidence which is reasonable, credible, and of solid valu e -- such that a reasonable11 trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” ( People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

2. Possession of Contraband in th e 108th Street Residence (Counts 1, 2, 5-7) Glasgow challenges his convictions for possession of the firearms, body armor, and drugs found in the 108th Street residence. Generally, the offenses of possession of drugs for sale and possession of a firearm as a felon include as elements possession and knowledge of the contraband. ( People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746 [posse ssion of drugs for sale]; People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [po ssession of a firearm by a felon].) 5 Glasgow
contends there is insufficient evidence that he had the knowledge required for possession of the contraband. To establish the element of possessi on, the prosecution must demonstrate
that the defendant had actual or constructive possession. ( People v. Cordova (1979) 97 Cal.App.3d 665, 670.) “Actual possession occurs when the defendant exercises direct physical dominion and c ontrol over the item . . . . [Citation.] Constructive possession does not require di rect physical control over the item ‘but does require that a person knowingly exercise control or right to control a thing, either directly or through another pe rson or persons.’ [Citation.]” ( People v.
Austin (1994) 23 Cal.App.4th 1596, 1608-1609 ( Austin ), disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 867.) Exclusive possession and control is not required ( People v. Rushing (1989) 209 Cal.App.3d 618, 622

5 Although our research has disclosed no case holding that possession of body armor by a violent felon is also subject to these requirements, the offense’s close similarity to possession of a firearm by a fel on supports that conclusion. The parties agree.12 ( Rushing ); People v. Patino (1984) 160 Cal.App.3d 986, 996 ( Patino )), as a showing of joint and constructi ve possession is sufficient ( People v. Haynes (1967) 253 Cal.App.2d 1060, 1064 [possession of drugs] ( Haynes ); People v. Nieto (1966) 247 Cal.App.2d 364, 368 [possession of fi rearm by a felon]). Possession and knowledge may be proved by circ umstantial evidence. ( People v. Cordova
, supra , 97 Cal.App.3d at pp. 669-670.) As instructive application of these principles is found in Haynes . There
, a man and woman were charged with pos session of marijuana for sale. ( Haynes , supra , 253 Cal.App.2d at p. 1061.) At trial, evidence was presented that police officers, upon executing a search warrant for the woman’s residence, found both defendants there, as well as a large amount of marijuana and materials for packaging it. ( Id . at p. 1063.) The man also had tr aces of marijuana in his pocket. ( Id . at pp. 1063-1064.) Inside a bedroom clos et were the man’s shoes, a suit, and a laundry receipt for the suit bearing the man’ s name and the residence’s address. ( Ibid. ) The appellate court concluded that this evidence was sufficient to show that the defendants “jointly occupied the prem ises where the mar ijuana was found; had knowledge of the presence of that mariju ana and its narcotic character; had access thereto; and had joint control thereof.” ( Id . at pp. 1064-1065; see also Patino , supra , 160 Cal.App.3d at pp. 995-996 [there was sufficient evidence that defendant possessed vials of drugs in mother’s home, as officers found document identifying the home as defendant’s residence, and one vial was found in sweater fitting defendant]; Rushing
, supra , 209 Cal.App.3d at pp. 620-621 [there was sufficient evidence that defendant possessed cocaine f ound in apartment he shared with three other persons, in view of ledger of drug sales bearing defendant’s first name found near cocaine].) Here, there is ample evidence th at Glasgow “‘knowingly exercise[d]
control’” over the contraband in the 108th Street residence ( Austin , supra , 2313 Cal.App.4th at pp. 1608-1609). Aside from disclosing that Glasgow sold cocaine and marijuana, the record shows that he conducted his sales operation out of the residence, with Alvarez’s cooperation. Alvarez testif ied that Glasgow frequently stayed overnight in the residence, and Detective Shear testified that he saw Glasgow enter it with a key. All the contraband was found in a bedroom containing men’s and women’s clothing. Inside the bedroom closet were large quantities of cocaine and marijuana, as we ll as material for packaging drugs, an assault rifle, body armor, a receipt beari ng Glasgow’s name, and a man’s shirt. The remaining items of contraband -- a handgun and ammunition -- were in the bedroom’s dresser, which also displaye d a photo of appellants. In addition, Glasgow’s secretive jailhouse phone conver sation with Alvarez indicated their joint awareness of the contraband and its unlawful character. In view of this evidence, the jury reasonably found that Glasgow knew of the contraband and had constructive possession of it.

3. Possession of Loaded Gun In Housing Project (Counts 3 & 4) Glasgow contends there is insufficien t evidence to support his convictions for the offenses involving the loaded gun found in the housing project, namely, possession of a gun as a felon and possession of ammunition. At trial, the jury was instructed with CALCRIM No. 2511, whic h stated in pertinent part: “If you
conclude that the defendant possessed a firearm, that possession was not unlawful if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that: [¶] 1. He possessed the firearm only for a momentary or transitory period; [¶] 2. He possessed the firearm in order to abandon, or dispose of, or destroy it; [¶] and [¶] 3. He did not intend to prevent law enforcement offici als from seizing the firearm.” Glasgow argues that the record conclusively estab lishes this defense, pointing to his own14 testimony that he threw the gun away immedi ately after Liza tossed it to him. We disagree. The “momentary possession” defense is traceable to People v. Mijares (1971) 6 Cal.3d 415, 420, in which our Su preme Court determined that defendants charged with possession of illegal drugs may assert as a defense that they held the drugs only to dispose of them in a safe manner. In so concluding, the court explained that its decision “in no wa y insulates from prosecution . . . those individuals who, fearing they are about to be apprehended, remove contraband from their immediate possession.” ( Id . at p. 422.) This qualification of the defense’s application is reflected in the elements of CALCRIM No. 2511. (See People v. Hurtado (1996) 47 Cal.App.4t h 805, 810-811 ( Hurtado ).) 6 Here, there is sufficient evidence th at Glasgow curtailed his possession of the handgun only because he realized that he would soon be apprehended. According to Officers Moreno and Alvare nga, Glasgow held the gun while he ran from pursuing officers, and threw it onto a building rooftop only moments before he was captured. Because this testim ony supports the reasonable inference that

6 As respondent notes, there is a division of opinion regarding the extent to which this defense is available to a defendant char ged with possession of a firearm as a felon. In People v. Pepper (1996) 41 Cal.App.4th 1029, 1037-1038 ( Pepper ), the appellate court concluded that convicted felons may no t assert the defense, and that they are permitted momentary possession of a handgun on ly in situations satisfying the elements of other defenses, namely, self-defense, de fense of others, and legal necessity. In contrast, in Hurtado , the appellate court rejected Pepper and reached the contrary conclusion. ( Hurtado
, supra , 47 Cal.App.4th at p. 813.) Later , in People v. Martin (2001) 25 Cal.4th 1 180, 1191, our Supreme Court discussed Hurtado with approval, and remarked in dictum that the recognition of the defense “serves the salutary purpose and sound public policy of encourag ing disposal . . . of danger ous items such as controlled substances and firearms.” ( Ibid .) It is unnecessary for us to examine this division of opinion because there is substantial eviden ce to support the jury’s rejection of the defense.15 Glasgow disposed of the gun to prevent it from being found in his possession when arrested, the jury reasonably rejected his “momentary posse ssion” defense.

B. Sentencing Glasgow raises several challenges to his sentence. In addition, respondent maintains that Glasgow’s sentence c ontains other defects that render it
unauthorized. For the reasons discussed be low, we conclude that the matter must be remanded for resentencing. Upon finding that Glasgow had two prior strikes under the Three Strikes law, the trial court sentenced him to a tota l term of 213 years to life, determined as follows: consecutive terms of 25 years to life on counts 1 through 3 and 5 through 9; two five-year enhancements pursuant to Penal Code section 667, subdivision (a)(1); and a three-year enhancement pursu ant to Health and Safety Code section 11370.2, subdivision (a). In addition, on count 1, the trial court imposed a concurrent one-year enha ncement under former Pena l Code section 12022, subdivision (c), and on count 2, a conc urrent one-year enhancement under former Penal Code section 12022, subdivision (a)(1). Punishment was stayed with respect to count 4 (§ 654) and the gang enha ncements (Pen. C ode, § 186.22, subd. (b)(4)(A)) 7

.

1. Refusal to Strike Prior Convictions Glasgow contends the trial court err oneously declined to dismiss one or
more of his serious or violent convic tions. Under the Th ree Strikes law, the

7 All further statutory citations are to th e Penal Code, unless otherwise indicated.16 decision to dismiss or “strike” a prior fel ony conviction is consigned to the trial court’s discretion. ( People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) The trial court must consider wh ether, “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his b ackground, character, and prospects, the defendant may be deemed outside the sche me’s spirit, in whole or in part.” ( People v. Williams (1998) 17 Cal.4th 148, 161.) Under these standards, the trial c ourt did not err in denying Glasgow’s motion to dismiss the strikes, in view of his lengthy criminal record and the circumstances of his present crimes. Ge nerally, abuse of discretion in sentencing “is found only where [the trial court’s] choice is ‘arbitrary or capricious or “‘exceeds the bounds of reason, all of th e circumstances being considered.”’ [Citations.]’” ( People v. Trausch (1995) 36 Cal.App.4th 1239, 1247, quoting People v. Welch (1993) 5 Cal.4th 228, 234.) We see no abuse of discretion here. When sentenced, Glasgow was 38 years ol d. As a juvenile, petitions were sustained against him for taking a vehicle without the owner’s consent, burglary, robbery, and assault with a deadly w eapon. After turning 18, Glasgow was convicted of assault with a deadly w eapon and a firearm (1990), possession of contraband in prison (1992), receiving stolen property (1992), possession of a firearm as a felon (1992, 1995), robbe ry (1995), possession of a controlled substance for sale (2003), and murder (2011). 8 Furthermore, he committed the offenses at issue here while on parole. Glasgow maintains that he falls outsi de the spirit of the Three Strikes law
because none of his current offenses resu lted in physical injury and four were

8 In an unrelated criminal proceeding, Glasgow was convicted of murder after his arrest for the offenses charged in the unde rlying action, but before sentencing occurred.17 related to drug sales. Howe ver, that law “does not re quire multiple violent felony
offenses to come within the statutory scheme.” ( People v. Strong (2001) 87 Cal.App.4th 328, 340, italics omitted.) Notwithstanding the absence of resulting injury from his current offenses, his long record of criminal conduct -- including
violent felonies -- establishes that he is “‘the kind of revolving-door career
criminal for whom the Three St rikes law was devised.’” ( Ibid ., quoting People v.
Gaston (1999) 74 Cal.App.4th 310, 320.)

2. Section 654 Glasgow challenges the sentences impos ed on counts 5 through 7, charging him with possession as felon of the two firearms and the body armor found in the 108th Street residence. Pointing to subdiv ision (a) of section 654, which prohibits multiple punishment for “[a]n act or omissi on that is punishable in different ways by different provisions of law,” Glasgow argues that the trial court erred in imposing punishment for each offense because they arose from a single act or course of conduct. As expl ained below, we disagree. Generally, multiple punishments are prope r under the statute if the defendant pursues suitably independent criminal objectives. ( People v. Williams (1992) 9 Cal.App.4th 1465, 1473-1474.) Our Supreme Court has explained: “Whether a
course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.
If all of the offenses were incident to one objective, the defe ndant may be punished for any one of such offenses but not for more than one.” ( Neal v. State of California (1960) 55 Cal.2d 11, 19, di sapproved on another ground in People v.
Correa (2012) 54 Cal.4th 331 ( Correa ).)18 a. Multiple Punishments for Possession of Firearms as a
Felon Glasgow contends that multiple puni shments were improper for the two counts of possession of a firear m as a felon, that is, c ount 5, which concerned the gun found in the bedroom dresse r, and count 6, which c oncerned the assault rifle
found in the bedroom closet. We conclude that this cont ention fails in light of our Supreme Court’s recent decision in Correa , which involved a defendant who, when arrested, was hiding in a closet containing a cache of guns. ( Correa , supra , 54 Cal.4th. at p. 334.) After he was convict ed of seven counts of being a felon in possession of a firearm, the trial c ourt imposed multiple punishments on the offenses. ( Ibid .) In examining the sentence, the Supreme Court concluded that section 654 does not prohibit multiple punis hment for multiple violations of a single law. ( Id . at pp. 335-343.) However, becaus e this determination constituted a new rule regarding section 654, the court declined to apply it retroactively to the defendant’s sentence. ( Id . at p. 344.)
The court nonetheless affirmed the sent ence on an alternativ e basis, namely, former section 12001, subdivision (k), which provided that “‘each firearm . . . shall constitute a distinct and separate offens e,’” for purposes of enumerated crimes, including possession of a firearm by a felon. 9 ( Correa , supra , 54 Cal.4th at pp. 342, 345.) On this matter, the court determined that the Legislature enacted that statute in 1994 to authorize multiple punishment for the enumerated crimes, notwithstanding section 654. ( Correa, supra, at pp. 345-346.) The court thus held that such punishment was properly imposed for the defendant’s simultaneous possession of firearms. ( Ibid. )

9 Former section 12001, su bdivision (k), is carried over in new section 23510 without substantive change. ( Correa , supra , 54 Cal.4th at p. 334, fn. 2.)19 In view of Correa , appellant’s contention fails. As former section 12001, subdivision (k) also governed Glasgow’s se ntence, the trial cour t properly imposed multiple punishments on counts 5 and 6. 10

b. Possession of Firearms and Body Armor as Felon Glasgow also contends that secti on 654 bars additional punishment for possession of body armor by a violent felon (count 7) due to the punishments imposed on counts 5 and 6. For the re asons discussed below, we reject this
contention because the items serv ed different objectives.
Our research has disclosed no decision addressing whether section 654 bars multiple punishments for simultaneous po ssession of firearms and body armor by a felon. However, we find guid ance on the issue before us from People v. Winchell (1967) 248 Cal.App.2d 580. There, a police officer noticed signs that someone had attempted to break into a building, and found the defendant in a nearby car. ( Id . at pp. 581-583.) After a search disclosed a gun under the driver’s seat and burglary tools on the rear seat floor, the defenda nt was charged with attempted burglary, possession of a firearm as a felon, and possession of burglary tools. ( Ibid .) However, the charge of attempted burgl ary was dismissed, and the defendant suffered convictions only fo r the possession-related offenses, upon which the trial court imposed multiple punishments. ( Id . at pp. 581-585.) In rejecting the defendant’s challenge to the sentence unde r section 654, the appellate court held that in the absence of the attempted burglary charge, the record showed the defendant’s commission of “two indepe ndent acts,” viz., his possession of the

10 People v. Spirlin (2000) 81 Cal.App.4th 119, u pon which Glasgow relies, is distinguishable, as it stands for the pr oposition that secti on 654 bars multiple punishments for a felon’s possession of the same firearm on different dates (see id . at pp. 128-129). That is not th e situation we confront here.20 burglary tools and the gun, albeit simultaneously. ( People v. Winchell, supra, at p. 597.) Accordingly, multiple punishments could be imposed.
We reach the same conclusion here . Generally, guns a nd body armor serve different functions: whereas guns are o ffensive weapons, body armor is intended to protect its wearer. Although they can be used together in criminal activities, the record discloses no evidence that Glasgow, in fact, intended to do so. Accordingly, section 654 did not prohibit multiple punish ments on counts 5 through 7.

3. Enhancements Under Section 667, Subdivision (a)(1) Glasgow maintains that the trial c ourt improperly imposed two five-year enhancements pursuant to section 667, subdivision (a)(1), arguing that the two prior convictions underlying the enhancem ents were not the product of separate proceedings. Respondent agrees, but argues that the court also erred in failing to impose a five-year enhancement under sec tion 667, subdivision (a)(1), on each of counts 1 through 3 and 5 through 9. We conclude that both c ontentions are correct. We begin with Glasgow’s contention. Subdivision (a)(1) of section 667 provides: “[A]ny person convicted of a se rious felony who previously has been convicted of a serious felony . . . shall rece ive, in addition to the sentence imposed by the court for the present offense, a fi ve-year enhancement for each such prior
conviction on charges brought and tried separately . . . .” (Italics added.) In order for the “‘brought and tried separately’” re quirement to be satisfied, “the underlying proceedings must have been formally distin ct, from filing to adjudication of guilt.” ( In re Harris (1989) 49 Cal.3d 131, 136; accord, People v. Frausto (2009) 180 Cal.App.4th 890, 903.) Here, the two prio r convictions for robbery occurred in a single proceeding, case No. TA028842. For this reason, it was error to impose two five-year enhancements pursuant to s ection 667, subdivision (a)(1) for the two prior convictions. ( People v. Frausto
, supra , 180 Cal.App.4th at p. 903.)21 Regarding respondent’s contention, our Supreme Court has held that under the Three Strikes law, section 667, subdivis ion (a)(1) enhancem ents “are to be applied individually to each count of a third strike sentence.” ( People v.
Williams (2004) 34 Cal.4th 397, 405.) Furthermor e, the trial court must impose the enhancements, as they may not be strick en under any provision of law, including section 1385 (see pt.I.B.4., post ). ( People v. Garcia (2008) 167 Cal.App.4th 1550, 1561 ( Garcia ).) For this reason, “[t]he tr ial court has no discretion and the sentence is mandatory.” ( People v. Purata (1996) 42 Cal.App.4th 489, 498.) Accordingly, the trial court was require d to apply a five-year enhancement under section 667, subdivision (a)(1), to each co unt on which it imposed a third strike sentence (counts 1 through 3 and 5 through 9). The result of the two errors was a lega lly unauthorized sentence that must be corrected. ( People v. Purata
, supra , 42 Cal.App.4th at p. 498; see People v.
Frausto , supra , 180 Cal.App.4th at p. 903.) As we conclude below that the matter
must be remanded for resenten cing (see pts. B.4. & B.5., post ), we shall direct the trial court to remedy the errors.

4. Gun Enhancements Glasgow contends the trial court erred in imposing concurrent gun use
enhancements on counts 1 and 2, which concerned his possession of cocaine base and marijuana for sale on April 14, 2010. He argues that the trial court was obliged to strike the enhancements, rather than order them to run concurrently with the terms for the underlying offenses. As explained below, the matter must be
remanded to the court with directions re garding each enhancement to (1) impose it as a consecutive term or (2) strike it. Counts 1 and 2 charged Glasgow with vi olations of Health and Safety Code sections 11351.5 and 11359. Under count 1, the information also alleged a gun use22 enhancement pursuant to subdivision (c) of section 12022, which provides that “any person who is personally armed w ith a firearm in the commission of a violation or attempted violation of [s] ection . . . 11351.5 . . . of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment . . . for three, four, or five years.” (Italics added.) In addition, under count 2, the information alleged a gun use enhancement pursuant to subdivision (a)(1) of section 12022, wh ich provides that “any pers on who is armed with a
firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment . . . for one year . . . .” (Italics added.)
Unlike enhancements under subdivision (a)(1) of section 667 (see pt.I.B.3.,

ante ), these gun use enhancemen ts are subject to the trial court’s discretionary authority under section 1385 to strike enhancements. (See People v. Jones (2007) 157 Cal.App.4th 1373, 1380-1383.) “It is well established that, as a general matter, a court has discretion under secti on 1385, subdivision (c), to dismiss or strike an enhancement, or to ‘strike the additional punishment for that enhancement in the furtherance of justice.’” ( People v. Meloney (2003) 30 Cal.4th 1145, 1155.) Absent a clear statutory direc tive to the contrary, the court retains its
discretion under section 1385 to strike an enhancement when imposing a sentence under the Three Strikes law. ( People v. Bradley (1998) 64 Cal.App.4th 386, 394- 395 ( Bradley ).) When a court exercises its power to strike an enhancement, it must set forth its reasons in writing in the minutes. ( Id . at p. 391.) Here, in sentencing Glasgow on count s 1 and 2, the trial court imposed consecutive terms of 25 years to life on the underlying offenses. However, the court ordered the gun use enhancements to run concurrently (without stating its reasons).23 We conclude that the imposition of c oncurrent enhancements resulted in a legally unauthorized sentence . Generally, the trial c ourt has “a duty to impose
sentence in accord with the law.” ( Bradley
, supra , 64 Cal.App.4th at p. 390.) Under section 1385, the court has the disc retion only to impose an enhancement or strike it. ( People v. Lopez (2004) 119 Cal.App.4th 355, 364.) Thus, for example, a court “has no authority to stay an enhancemen t, rather than strike it -- not, at least, when the only basis for doing either is its own discretionary sense of justice.” ( Ibid .; People v. Jones (1992) 8 Cal.App.4th 756, 757- 758.) Because subdivisions (a)(1) and (c) of section 12022 specify that each enhancement shall be “an additional and consecutive term of impris onment,” the trial court had discretion only to impose them consecutively or strike them. Respondent contends that because Glasgow was subject to indeterminate sentencing under the Three Strikes law, the trial court properly imposed concurrent gun enhancements. As respondent notes, under that law (§§ 667, subd. (c)(6), 1170.12, subdivision (a)(6)), a court has the discretion to select concurrent or consecutive sentencing for offenses comm itted on the same occasion or arising
from the same set of facts. Because the offenses charged in counts 1 and 2 occurred at the same time and place, respo ndent argues that the trial court properly
ordered the enhancements to run c oncurrently. We disagree. Because the gun enhancements are not offenses, the court’s discretion under the Three Strikes law to impose concu rrent terms on the offenses underlying counts 1 and 2 did not encompass the enha ncements. As our Supreme Court has explained, the provisions of the Thre e Strikes law upon whic h respondent relies mandate consecutive sentencing only for offenses not committed on the same24 occasion and not arising from the same set of operative facts. 11 ( People v. Hendrix (1997) 16 Cal.4th 508, 512-513; see People v. Lawrence (2000) 24 Cal.4th 219, 226; People v. Deloza (1998) 18 Cal.4th 585, 590-5 91.) However, under the Three Strikes law, the court’s discretion to sel ect consecutive or concurrent sentencing for “felony counts” -- that is, offenses -- is distinct from its discretion to strike or impose enhancements, when determini ng the sentence for each offense. Generally, in sentencing a three-strike r convicted of multiple offenses, the trial court is required to calculate the mi nimum determinate term of each offense’s indeterminate sentence. ( People v. Williams, supra, 34 Cal.4th at pp. 403-404; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1141-1143; People v. Ayon (1996) 46 Cal.App.4th 385, 392, disapproved on anot her ground in People v. Deloza
, supra , 18 Cal.4th at p. 600, fn. 10; §§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A); see People v. Nguyen (1999) 21 Cal.4th 197, 205-206.) Once the
minimum determinate term of the sentence for an offense has been identified, applicable enhancements are added to the minimum determinate term for that offense. ( People v. Williams, supra, 34 Cal.4th at pp. 403-404.) Absent a statutory directive to the contrary, the court has th e discretion under section 1385 to strike or impose the enhancements with re spect to each offense. ( Bradley
, supra , 64 Cal.App.4th at pp. 394-395.) Upon dete rmining the sentence for each offense (including the imposition or striking of enha ncements), the court has the discretion
to select concurrent or consecutive sent ences for offenses committed on the same occasion or arising from the same set of facts. ( People v. Hendrix
, supra , 16

11 Section 667, subdivision (c)(6), and section 1170.12, subdivision (a)(6), state: “If there is a current conviction for more than one felony count not committed on the same occasion, and not arisi ng from the same set of operative f acts, the court shall sentence the defendant consecutively on each count . . . . ”25 Cal.4th at pp. 512-513; see People v. Lawrence
, supra , 24 Cal.4th at p. 226; People v. Deloza
, supra , 18 Cal.4th at pp. 590-591.) Nothing in the Three Strikes law suggest s that the trial court’s discretion to select concurrent sentencing for offenses also encompasses the prior stage of the sentencing determination, that is, the app lication of enhancements to the terms for
individual offenses. Nor does the Thre e Strikes law contain any provision authorizing the court to impose concurrent terms for enhancements established as “additional and consecutive term[s] of impris onment” (§ 12022, subds. (a)(1), (c)). Accordingly, the court erred in orde ring the gun use enhancements to run concurrently. In sum, the matter must be remanded so that th e court may exercise its discretion to impose the gun use enhanc ements as consecutive terms or strike
them. 12

12 Although respondent cl aims to find support from People v. Oates (2004) 32 Cal.4th 1048 ( Oates ), that decision comports with our analysis. Oates involved sentencing under the so-called “10-20-life law” found in section 12 022.53, rather than under the Three Strikes law. ( Oates, supra, at p. 1052.) As explained below, Oates stands for the proposition that the trial court’s discretion to impose consecutive or concurrent indeterminate sent ences does not modify its duty to impose enhancements in accordance with the statut es that create them.
In Oates , the defendant fired a gun at severa l people socializing in front of a house, injuring one of them. ( Oates, supra, 32 Cal.4th at p. 1053.) The jury found the defendant guilty of five counts of attemp ted murder, and also found true gun use allegations under subdivisi on 12022.53, subdivision (d), which provides for an “additional and consecutive” 25-years-to-life enhancement when the defendant’s personal use of a gun causes great bodily injury “to any person other than an accomplice.” ( Oates, supra, at p. 1053.) In the defendant’s subseque nt appeal, the court held that section 654 barred the imposition of such enhancements on two separate counts of attempted murder. Our Supreme Court reversed this determ ination, reasoning that the mandatory language of section 12022. 53 required the imposition of multiple enhancements. ( Oates, supra, 32 Cal.4th at pp. 1055-1062.) In so c oncluding, the court stated: “[T]here is nothing anomalous about ap plying section 12022.53 in accordance w ith its language
, such that the number of subdivision (d) en hancements imposed turns on the number of people defendant attempted to murder. Moreov er, . . . a trial court can mitigate concerns (Fn. continued on next page.)26 5. Enhancements Under Secti on 667.5, Subdivision (b) Respondent contends the trial court erre d in failing to impose or strike the enhancements pleaded and proved ag ainst Glasgow under section 667.5, subdivision (b). We agree. Subdivision (b) of section 667.5 provides: “[W]here the new offense is any felony for which a prison sentence . . . is imposed . . . , in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term . . . for any felony . . . .” As explained in Garcia , when a defendant is subject to sentencing as a three striker, “the trial c ourt [is] required to impose the section 667.5, subdivision (b) prio r prison term enhancements or strike them in whole or in part pursuant to s ection 1385, subdivision (a). Section 667.5, subdivision[] (a) . . . [,] contain[s] mandatory language, which requires the additional terms be imposed on every count. The enhancement la nguage in section 667.5 is mandatory unless the additional term is stricken.” ( Garcia , supra , 167 Cal.App.4th at p. 1561, fn. omitted.) Here, the information alleged such an enhancement under each count charged against Glasgow, and the trial court found that he had se rved a prior prison term, for purposes of the enhancement. 13 However, in sentencing him, the court did not refer to the enhancements, and neither imposed nor struck them. In view of
Garcia , the trial court’s failure to exercise its discretion with respect to each

about sentencing inequities by imposing concu rrent, rather than consecutive, sentences where multiple subdivision (d) enhancements are found true. Thus, defendant’s assertion regarding possible sentencing anomalies does not justify departing from the statutory language .” ( Id . at p. 1060, italics added.)

13 We recognize that the same conviction underlies the enhancements alleged under section 667.5, subdivision (b ), and the three-year enhancement that the trial court imposed under Health and Safety Code sec tion 11370.2, subdivisi on (a). The court may properly impose both enhancements on the basis of a single prior conviction. ( People v. Gokey (1998) 62 Cal.A pp.4th 932, 935-937.)27 enhancement resulted in an authorized sentence. ( Garcia , supra , 167 Cal.App.4th at p. 1561.) Accordingly, the matter mu st be remanded to permit the court to exercise its discretion regarding the prior prison term enhancements. ( Id . at pp. 1561-1563; see also Bradley
, supra , 64 Cal.App.4th at pp. 391-392 [trial court’s failure to impose or strike sec tion 667.5, subdivision (b) enhancement in sentencing three striker required rema nd for exercise of discretion].)

6. Custody Credits Glasgow contends the trial court miscalculated his presentence custody credits. The trial court awarded Glasgow credit for 567 days of actual custody. He argues that he is entitled to credit fo r an additional day of actual custody . Respondent agrees. We conclude that Glasgow’s custody credits must be
corrected to reflect a total of 568 days of actual custody.

II Alvarez After an examination of the record, Alvarez’s court-appointed counsel filed an opening brief raising no issues and requ esting this court to review the record independently pursuant to Wende . In addition, counsel advised Alvarez of her right to submit by supplemental brief any contentions or argum ent she wished the court to consider. Alvarez has neither pr esented a brief nor identified any potential
issues. Our examination of the entire reco rd establishes that Alvarez’s counsel has fully complied with her responsibilities a nd that no arguable issues exist. ( Wende
, supra , 25 Cal.3d at p. 441.)28 DISPOSITION The judgment against Glasgow is reve rsed solely with respect to his sentence, and the matter is remanded fo r resentencing for limited purposes, with directions to the trial court to impose a single five-year enhan cement under section 667, subdivision (a)(1), on each of counts 1 through 3 and 5 through 9; to exercise its discretion with respect to the enha ncements under secti on 12022, subdivisions (a)(1) and (c), and section 667.5, subdivisi on (b); and to correct Glasgow’s custody credits. Upon resentencing, the court is dir ected to prepare a co rrected abstract of judgment and forward a copy to the Departme nt of Corrections and Rehabilitation. The judgment against Glasgow is affirmed in all other respects. The judgment against Al varez is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.