NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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OPINION

RAMIREZ, P.J.

Defendant Anthony John Jurado repeatedly punched and kicked a female friend in the face. At Jurado's direction, defendant Christy Annette Garduno also repeatedly punched the victim in the face. The victim was left with a "shattered" cheekbone and a broken nose, both requiring surgery. Meanwhile, Jurado also threatened to kill the victim and her adult daughter. The motive for the attack was not at all clear. However, Jurado later told the victim's daughter, "Your mom fucked up," "I had to beat her ass." Jurado denied all of this; he testified that the victim went out to buy drugs, and by the time she came back, she had been beaten up.

In this appeal, both defendants contend that:

In addition, Garduno contends that:

We reject defendants' contention that, in a group beating context, a great bodily injury enhancement has a knowledge requirement. The People concede that one of Garduno's two prior serious felony conviction enhancements must be stricken. Doing so will eliminate any other asserted sentencing error.

Accordingly, we will affirm the judgment with respect to Jurado and modify the judgment with respect to Garduno.

I

PROCEDURAL BACKGROUND

After a jury trial, both defendants were found guilty of assault by means of force likely to result in great bodily injury (Pen. Code, § 245, subd. (a)(4)), with an enhancement for the personal infliction of great bodily injury. (Pen. Code, § 12022.7, subd. (a).) Both defendants were also found guilty of attempting to dissuade a witness. (Pen. Code, § 136.1, subd. (b)(1).) Jurado was found guilty, but Garduno was found not guilty, of making a criminal threat. (Pen. Code, § 422, subd. (a).)

With respect to Jurado, the trial court found two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) to be true. With respect to Garduno, the trial court found two "strike" priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), two prior serious felony conviction enhancements (Pen. Code, § 667, subd. (a)), and three prior prison term enhancements to be true. However, it struck one of the strikes.

Jurado was sentenced to a total of 11 years 8 months in prison. Garduno was sentenced to a total of 28 years in prison.

III

INSTRUCTION ON A GREAT BODILY INJURY ENHANCEMENT IN THE CONTEXT OF A GROUP BEATING

Defendants contend that, under the circumstances of this case, the great bodily injury enhancement had a knowledge requirement, on which the trial court erroneously failed to instruct.

Reduced to its essentials, their argument is as follows: Former CALJIC No. 17.20 stated that, in a group beating situation, the personal infliction of great bodily injury enhancement has a knowledge requirement. In People v. Modiri (2006) 39 Cal.4th 481 (Modiri), the California Supreme Court approved former CALJIC No. 17.20. Unlike former CALJIC No. 17.20, CALCRIM No. 3160, as given in this case, has no knowledge requirement. Hence, CALCRIM No. 3160 is erroneous.

The flaw in this argument is that, while Modiri did approve former CALJIC No. 17.20 in other respects, it expressly did not approve that instruction's knowledge requirement; to the contrary, it observed that it was "arguably" erroneous because it "impose[d] an additional evidentiary burden on the prosecution." (People v. Modiri, supra, 39 Cal.4th at p. 501.) Following Modiri's lead will hold that the knowledge requirement in former CALJIC No. 17.20 was, in fact, erroneous; thus, CALCRIM No. 3160 correctly omits any similar requirement.

A. Additional Factual Background.

The following facts relevant to the great bodily injury enhancement were shown at trial.

The victim was sitting in a folding chair when Jurado hit her in the left side of the face, hard, knocking her out of the chair and onto the floor. Jurado told Garduno to hit the victim; Garduno punched her in the left side of the face with a closed fist. Jurado then kicked the victim in the left side of the face and nose.

The victim remained on the floor, going in and out of consciousness, as both defendants continued to hit her. She estimated that, all told, Jurado hit her "[m]aybe five" times and kicked her "once or twice"; Garduno hit her "[t]wo or three times."

As a result, the victim's "cheekbone was shattered [and her] nose was broken." Both of her lips were cut through, so that her teeth were visible. Her left eye was swollen shut. She received stitches to her lips. A week after the beating, she had surgery, which included the installation of a metal plate to stabilize her cheekbone.

It took about a month for the swelling and bruising to go away. At the time of trial, the victim's left cheek was still swollen and usually numb, though occasionally painful. She had scars on her lips.

B. Additional Procedural Background.

Concerning the great bodily injury enhancement, the trial court gave CALCRIM No. 3160, which, as relevant here, stated:

Defendants' counsel were given an opportunity to object to the instruction, but they did not do so.

B. Discussion.

A great bodily injury enhancement applies to "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony." (Pen. Code, § 12022.7, subd. (a).)

"`"[T]he meaning of the statutory requirement that the defendant personally inflict the injury does not differ from its nonlegal meaning. Commonly understood, the phrase `personally inflicts' means that someone `in person' [citation], that is, directly and not through an intermediary, `cause[s] something (damaging or painful) to be endured' [citation]." [Citation.]' [Citation.]" (People v. Slough (2017) 11 Cal.App.5th 419, 423.)

People v. Corona (1989) 213 Cal.App.3d 589 (Corona) held that a defendant who is a "direct participant" in a group beating, and not a mere "aider and abettor," can be subject to a great bodily injury enhancement, even if "it is not possible to determine which assailant inflicted which injuries." (Id. at p. 594.) It cautioned, "We do not attempt to set forth a universally applicable test for when an individual ceases to be an accomplice and becomes a direct participant to the infliction of great bodily injury." (Ibid.) In the case before it, however, it found it sufficient that "the conduct of [the defendant] during the attack was of a nature that it could have resulted in the injuries inflicted." (Ibid.)

Thereafter, "[former] CALJIC No. 17.20 was revised . . . based on . . . Corona . . . to include a fourth paragraph designed for use when there is a group beating and it is not possible to determine who caused what injury. That paragraph provide[d]:

In Modiri, the issue before our Supreme Court was whether former CALJIC No. 17.20 erroneously allowed the jury to find that the defendant's crime was a serious felony under Penal Code section 1192.7, subdivision (c)(8) ["any felony in which the defendant personally inflicts great bodily injury on any person"] even if the defendant did not personally inflict the victim's great bodily injury. (Modiri, supra, 39 Cal.4th at p. 491.) Throughout its opinion, however, the court treated Penal Code section 1192.7, subdivision (c)(8) and Penal Code section 12022.7, subdivision (a) as substantively interchangeable. (Modiri, supra, at pp. 495-499.)

It began by holding that: "[P]articipation in a group attack may satisfy sections 1192.7(c)(8) and 12022.7(a) where the defendant personally uses force against the victim, and the precise injurious effect is unclear." (Modiri, supra, 39 Cal.4th at pp. 495-496.)

It added: "Some courts have upheld personal-infliction findings where the force personally used by the defendant during a group attack was serious enough that it may, by itself, have caused great bodily injury, even though the evidence did not show for certain that the defendant's acts alone perpetrated specific harm or that nobody else injured the victim. Under this approach, . . . `the blows were delivered, [the defendant] joined in that delivery and the victim suffered great bodily injury.' [Citations.]

"Other group beating cases permit a personal-infliction finding where the physical force the defendant and other persons applied to the victim at the same time combined to cause great bodily harm. . . . Critical here is . . . that the defendant's acts involved `more than aiding and abetting,' and that he was `directly responsible' for the resulting injuries. [Citations.]" (Modiri, supra, 39 Cal.4th at p. 496.)

The Supreme Court then further held that former CALJIC No. 17.20 "reasonably convey[ed]" these principles: "The instruction applies if they [the jurors] decide that [the defendant] `participate[d]' in a group beating, and that `it is not possible' to determine which assailant inflicted a particular injury. [Citation.] Both prongs of the instruction permit a personal-infliction finding in this instance only if the defendant personally `appli[es] unlawful physical force' to the victim. [Citation.] CALJIC No. 17.20 makes clear that the physical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants. Both group beating theories exclude persons who merely assist someone else in producing injury, and who do not personally and directly inflict it themselves." (Modiri, supra, 39 Cal.4th at pp. 493-494.)

The defendant specifically challenged the second prong of the instruction, arguing that its use of the words "knew" as well as "`knew, or reasonably should have known'" had the effect of "substitut[ing] his knowledge of the force applied by others for the injury that he was personally required to inflict. He claim[ed] this approach allowed `vicarious' liability . . . in violation of controlling law." (Modiri, supra, 39 Cal.4th at pp. 500-501.)

The court responded: "The asserted error did not occur. We have seen that section 1192.7(c)(8) requires the defendant to personally inflict, or contribute to the infliction of, great bodily harm while participating in a group attack. [Citation.] The second group beating theory in CALJIC No. 17.20 follows this principle by requiring the defendant to apply physical force directly to the victim to such a significant degree that he adds to the `cumulative' injurious effect. Contrary to what defendant claims, this language does not define the defendant's personal infliction of great bodily harm primarily or solely in terms of the harmful acts that others in the group commit.

"Moreover, we have said that section 1192.7(c)(8) simply requires an intent to do the act the statute proscribes. [Citation.] Instead of supplanting the personal-infliction requirement, the reference to what the defendant knew or should have known during the attack arguably imposes an additional evidentiary burden on the prosecution. We see no basis on which defendant can complain." (Modiri, supra, 39 Cal.4th at p. 501, fns. omitted, italics added.)

To summarize, while the Supreme Court did approve former CALJIC No. 17.20 in general, it did not approve the knowledge requirement in the second prong of the instruction. Quite the contrary — it observed that it was "arguably" erroneous, because it required knowledge, whereas the statute itself required only general intent. (Modiri, supra, 39 Cal.4th at p. 501.) Moreover, it indicated that the true second prong is satisfied "where the physical force the defendant and other persons applied to the victim at the same time combined to cause great bodily harm" and where "the defendant's acts involved `more than aiding and abetting,' and . . . he was `directly responsible' for the resulting injuries. [Citations.]" (Id. at p. 496.)

As far as we have been able to tell, the drafters of former CALJIC No. 17.20 made its knowledge requirement up out of whole cloth. Corona had held that "that when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature it could have caused the great bodily injury suffered." (Corona, supra, 213 Cal.App.3d at p. 594.) In other words, it dealt exclusively with what became the first prong of former CALJIC No. 17.20. Corona did not suggest the existence of a second prong, however phrased. A fortiori, it did not hold that the second prong includes any kind of knowledge requirement.

It is firmly established that Penal Code section 12022.7(a) "require[s] only a general criminal intent, i.e., the defendant need not intend great bodily injury result, the only intent required is that for the underlying felony. [Citations.]" (People v. Lewis (2004) 120 Cal.App.4th 837, 853, fn. omitted; accord, People v. Poroj (2010) 190 Cal.App.4th 165, 173; People v. Carter (1998) 60 Cal.App.4th 752, 755-756.) The group beating portion of CALCRIM No. 3160 quite properly omits the knowledge requirement of former CALJIC No. 17.20, because it is inconsistent with these cases.

We therefore conclude that CALCRIM No. 3160 correctly omits any knowledge requirement applicable to a group beating case.

IV

THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT TWO PRIOR SERIOUS FELONY CONVICTION ENHANCEMENTS

Garduno contends that there was insufficient evidence that the charges underlying her two prior serious felony enhancements were brought and tried separately. The People concede the error.

We agree. This enhancement applies to a prior serious felony conviction only if it was "on charges brought and tried separately." (Pen. Code, § 667, subd. (a)(1).) "[T]he requirement . . . that the predicate charges must have been `brought and tried separately' demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt." (In re Harris (1989) 49 Cal.3d 131, 136.) The record shows that both prior serious felonies had the same case number, No. FSB1102517, and that Garduno pleaded guilty to both on the same date, August 31, 2011.

Accordingly, we will strike one of these two enhancements.1 This will reduce the total sentence from 28 years to 23 years.

V

IMPOSITION OF BOTH A PRIOR SERIOUS FELONY CONVICTION ENHANCEMENT AND A PRIOR PRISON TERM ENHANCEMENT BASED ON THE SAME PRIOR CONVICTION (JONES ERROR)

Garduno contends that the trial court erroneously used the same prior conviction as both a prior serious felony conviction enhancement and a prior prison term enhancement.

In 2011, Garduno pleaded guilty to two serious felonies: attempted robbery (Pen. Code, §§ 211, 664, subd. (a)) and making a criminal threat (Pen. Code, § 186.22, subd. (a)). As we mentioned in part IV, ante, based on these two convictions, the information alleged, and the trial court found true, two prior serious felony conviction enhancements. However, based on the 2011 conviction for making a criminal threat, the information also alleged, and the trial court also found true, one prior prison term enhancement.

Under People v. Jones (1993) 5 Cal.4th 1142, a single prior conviction cannot be used as both a prior serious felony conviction enhancement and a prior prison term enhancement. (Id. at pp. 1144-1145, 1150, 1153.) Accordingly, the trial court erred. Indeed, the People concede as much.

In part IV, ante, however, we held that one of these two prior serious felony conviction enhancements must be stricken. If the one based on the attempted robbery conviction is stricken, so that the one based on the criminal threat conviction remains, then the prior prison term enhancement cannot stand. If, however, the one based on the criminal threat conviction is stricken, then that conviction is still available to support the prior prison term enhancement.

Both sides therefore ask us to remand the matter to the trial court with directions to determine which prior serious felony conviction enhancement should be stricken. A remand, however, is not necessary.

"[T]he trial court must impose a consecutive five-year term for each . . . prior [serious felony] conviction that has been brought and tried separately. The trial court has no discretion in the matter; the imposition of such a term is mandatory. [Citation.]" (People v. Ayon (1996) 46 Cal.App.4th 385, 395, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) The trial court cannot even strike it in its discretion under Penal Code section 1385. (Pen. Code, § 1385, subd. (b).)

Similarly, the imposition of a one-year prior prison term enhancement is mandatory, except that the trial court can strike it under Penal Code section 1385. (People v. Espinoza (1979) 99 Cal.App.3d 59, 75; see also People v. Bradley (1998) 64 Cal.App.4th 386, 391.) Here, however, if the trial court was inclined to strike one of the prior prison term enhancements in the interest of justice, it could have done so. Evidently it felt that it was not in the interest of justice to reduce a 28-year prison term to 27 years. We may fairly conclude that it would not use its discretion to strike a prior prison term enhancement in order to bring a 23-year prison term down to 22 years. In other words, the only possible reason not to impose both otherwise mandatory enhancements does not exist.

"Where, as here, the trial court's intention is clear, there is no need to remand for resentencing as we have the statutory power to modify the judgment. [Citation.] . . . Remand for resentencing would exalt substance over form. [Citation.]" (People v. Chacon (1995) 37 Cal.App.4th 52, 67.) We will therefore strike the prior serious felony conviction enhancement that was based on the criminal threat conviction, leaving Garduno still subject to the prior prison term enhancement that was based on the criminal threat conviction.

VI

DISPOSITION

The judgment with respect to Jurado is affirmed. The judgment with respect to Garduno is modified by striking the first prior serious felony conviction enhancement (the one that was based on a conviction for making a criminal threat). As a result, her total term of imprisonment is reduced from 28 years to 23 years. As thus modified, the judgment is affirmed.

With respect to Garduno, the superior court clerk is directed to prepare an amended sentencing minute order and an amended abstract of judgment and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)

SLOUGH, J. and FIELDS, J., concurs.