Opinion
E067357
10-02-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO HERRERA AGUILAR, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1101091) OPINION APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed with directions. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Roberto Herrera Aguilar is serving nine years in state prison after a jury found him guilty of 12 charges stemming from the discovery of illegal assault weapons and other items secreted in his vehicle. The weapons were obtained from a gun show in Arizona, and defendant drove them through an agricultural checkpoint into California. Defendant raises three issues on appeal. First, his sentences for unlawful possession of an assault weapon (Pen. Code, § 12280, subd. (b), counts 3 & 4) and possession of a firearm by a felon (§ 12021, subd. (a)(1), counts 5 & 6) should be stayed under section 654 because they arose from a course of conduct indivisible from the conduct that forms the basis of his convictions for importing the same two assault weapons into the state (§ 12280, subd. (a)(1), counts 1 & 2). Second, his prior prison term enhancement under section 667.5, subdivision (b), must be vacated because he was not advised of and did not waive his rights prior to admitting the conviction, and he did not admit all of the required elements. Third, the court erred when it imposed a minimum restitution fine under section 1202.4, subdivision (b), that was higher than the one in effect at the time he committed the offense. As discussed post, we find merit in each of defendant's contentions.
Section references are to the Penal Code except where otherwise indicated.
FACTS AND PROCEDURE
On December 4, 2010, a joint task force of federal, State of California, and Arizona and California local law enforcement agencies was conducting surveillance at a gun show in Phoenix. The task force was looking for signs of "straw purchases" by Arizona residents on behalf of persons who would then transport the assault weapons and other items into California, where such items were illegal to possess. The task force noticed a black Chevy Tahoe with California license plates and chrome rims in the parking lot of the gun show. The Tahoe was parked next to a Jaguar with Arizona license plates.
Later that evening, federal agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) saw the Tahoe at an agricultural checkpoint at the Arizona/California border heading into California and recognized it from the Phoenix gun show. The ATF agents and a Riverside County Sheriff's deputy followed the Tahoe.
The deputy eventually stopped the Tahoe after witnessing numerous traffic violations. Defendant was in the driver's seat and appeared very nervous. The officers searched the Tahoe and found the following items concealed in the interior panels: the two assault weapons that form the basis for the most serious charges in this case; four other weapons; 19 boxes of ammunition for one of the assault weapons; and two high-capacity firearm magazines that exceed the 10-round limit allowed under California law. At trial, the parties stipulated that defendant had suffered a prior felony conviction that prohibited his possession of any firearms or ammunition.
On October 28, 2016, the People filed an information charging defendant in counts 1 and 2 with transporting, importing, etc., an assault weapon, namely a TEC-9 and an AK-47; in counts 3 and 4 with unlawfully possessing the same two weapons; in counts 5 and 6 with being a felon in possession of the same two weapons; in counts 7 through 10 with being a felon in possession of other firearms; in count 11 with transporting, importing, etc., a large-capacity magazine (§ 12020, subd. (a)(2)); and in count 12 with being a felon in possession of ammunition (§ 12316, subd. (b)(1)). The People also alleged defendant had two prison term priors. (§ 667.5, subd. (b).)
On November 29, 2016, the court granted defendant's motion to bifurcate the trial on his prison term priors.
On December 1, 2016, a jury found defendant guilty on all counts. Later that day, the court dismissed one of the prison term priors at the People's request, and defendant admitted the remaining prior. The court then sentenced defendant to nine years in prison as follows: The upper term of eight years for count 1, plus a concurrent upper term of eight years for count 2, plus concurrent upper terms of three years for counts 3 through 12, plus a consecutive term of one year for the prison term prior. The nine-year term was to run concurrent with a term defendant was already serving in Los Angeles County for murder and shooting at an inhabited dwelling.
This appeal followed.
DISCUSSION
1. Section 654 and Firearm Possession/Importation
Defendant had hidden two assault weapons, a TEC-9 and an AK-47, in his vehicle that he had just brought into California from Arizona. Based on these facts and his status as a felon, he was convicted of and sentenced for two counts each of unlawfully transporting the assault weapons, unlawfully possessing the assault weapons, and being a felon in possession of the weapons. Defendant argues the sentences for unlawfully possessing the weapons and for being a felon in possession of the weapons should have been stayed under section 654 because all three crimes were based on the same act of possession and occurred as part of a single transaction—the importation of the weapons into California. The People respond that defendant committed separate acts, each separately punishable under section 654 because his unlawful possession of the assault weapons occurred much earlier than the importation and a considerable distance away at the gun show in Phoenix.
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Where violations of different provisions of law are premised on multiple acts, a course of conduct is implicated, and the intent and objective test governs in determining whether section 654 applies. (People v. Jones (2012) 54 Cal.4th 350, 359.) Under that test, if evidence reveals multiple offenses were incident to one objective, then the course of conduct is indivisible, and a defendant may be punished for one of the offenses, but not for all of them. (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006.) However, if evidence reveals a defendant harbored independent, separate objectives in committing the multiple offenses, then the course of conduct is divisible, and the defendant may be punished for all of the offenses committed. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) A trial court's implied finding that a defendant harbored a separate intent and objective for each offense is a question of fact and will be upheld on appeal if it is supported by substantial evidence. (E.g., People v. Islas (2012) 210 Cal.App.4th 116, 129.)
Here, even if the importation and the two different types of possession were to be considered separate acts, the acts were committed in pursuit of a single objective—to bring the firearms over the state border into California. The evidence simply does not reveal that defendant harbored an intent when he possessed the weapons other than to import them into the state. Thus, the trial court's implied finding that he harbored a separate intent and objective for each offense is not supported by substantial evidence.
As defendant argues, when he crossed the border into California in possession of the firearms, he violated all three statutes by this single act.
The People base their argument on People v. Jones (2002) 103 Cal.App.4th 1139, which holds " ' "where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense." ' " (Id. at p. 1143.) Here, the defendant's possession of the assault weapons in counts 3 and 4, and his possession of firearms by a felon in counts 5 and 6, appear on this record to be only in conjunction with the primary offenses, transportation of the assault weapons in counts 1 and 3, rather than antecedent to and separate from them. Although the People argue that defendant's unlawful possession of those assault weapons occurred "much earlier and a considerable distance away at the gun show in Phoenix," such possession did not violate sections 12280, subdivision (b), or 12021, subdivision (a)(1), because it did not take place in California. This conclusion is consistent with the main case cited by defendant, People v. Jones, supra, 54 Cal.4th 350, 353, in which our Supreme Court held that "a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654." (Id. at p. 357.) The record in this case does not support a conclusion that defendant possessed the weapons for any reason other than to import them. For this reason, the sentences for counts 3, 4, 5, and 6 must be stayed.
In People v. Jones, supra, 54 Cal.4th 350, the defendant was a convicted felon. The police searched his car and found a loaded .38-caliber revolver. (Id. at p. 352.) A jury convicted him of three crimes: possession of a firearm by a felon (former § 12021, subd. (a)(1)), carrying a readily accessible concealed and unregistered firearm (former § 12025, subd. (b)(6)), and carrying an unregistered loaded firearm in public (former § 12031, subd. (a)(2)(F)). (Jones, at p. 352.) The superior court sentenced him to state prison for the upper term of three years on each count, to be served concurrently. (Ibid.) The California Supreme Court held that the trial court erred, noting that, when arrested, the defendant "was carrying, and thus possessing, a single firearm, which seem[ed] to be a single physical act." (Id. at p. 353.) That act was "made punishable by three different provisions of law, . . . Thus, by its terms, section 654 seem[ed] to preclude punishment for more than one of those provisions." (Ibid.)
2. Admission of Prison Term Prior
Defendant contends the one-year sentence enhancement for the prison term prior must be vacated because: (1) the trial court failed to advise him of his constitutional rights and this error was not harmless; and (2) defendant did not admit each element of the enhancement. We agree with defendant on the first issue, which makes the second issue moot.
a. The relevant proceedings
Prior to trial, the court asked if defendant wanted to bifurcate the trial on his prior convictions. The following exchange occurred.
"THE COURT: With respect to the bifurcation of issues, there are two prior offenses which have been alleged, and those—are those prison priors?
"[PEOPLE]: They are.
"THE COURT: All right. So it has been agreed, although I'll need you to put this on the record with your client, Mr. Schiff, that the prison priors will be bifurcated from the trial and tried by the court.
"Would you please inquire of your client?
"[DEFENSE]: Inquire as to the agreement to the bifurcation?
"THE COURT: And that they would be tried by the Court without a jury. Otherwise, I have to keep the jury longer.
"[DEFENSE]: Right.
"So, sir, do you understand that you're charged in the Information with having been found guilty of two offenses and separately sent to prison on them; they're alleged in the Information. Do you agree that we will bifurcate the truth or—of those prior offenses so that they will not be made known to the—in the presence of the jury and that the Judge, at the conclusion of the trial, if necessary, will hear as a Court trial whether or not you, in fact, suffered those prior offenses; yes?
"THE DEFENDANT: Yes.
"THE COURT: You agree to that?
"THE DEFENDANT: Yes.
"THE COURT: All right. Thank you."
After the trial, the parties and the court discussed how they would proceed with the bifurcated matters. The court granted the prosecution's motion to strike one of the prison term prior allegations because it did not qualify. Regarding the remaining prior, the following exchange took place:
"THE COURT: And so now we have prior offense number two. Do you want to proceed with that right now?
"[DEFENSE]: We'll admit to it, Judge.
"THE COURT: All right. You understand what that—what that means, Mr. Aguilar, admitting to the prior?
"[DEFENSE]: Just the one.
"THE DEFENDANT: Yes, Yes, Your Honor.
"THE COURT: And do you agree with that? You'll go ahead and admit that prior at this time?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right. The Court will accept that as being voluntarily and knowingly made and will accept that admission."
b. Advisement of constitutional rights
A criminal defendant who pleads guilty waives three constitutional rights: (1) the privilege against self-incrimination, (2) the right to a jury trial, and (3) the right to confront one's accusers. A waiver of these fundamental constitutional rights must be made knowingly, intelligently, and voluntarily, and such a waiver will not be presumed from a silent record. (Boykin v. Alabama (1969) 395 U.S. 238, 243.) In California, the same rule applies to admitting a prior conviction or prior prison term allegation. (In re Yurko (1974) 10 Cal.3d 857, 863.)
The California Supreme Court in In re Tahl (1969) 1 Cal.3d 122, 132-133, held that the trial court must advise a defendant, on the record, of his or her rights against self-incrimination, to a jury trial, and to confrontation, and the defendant must waive these rights, on the record, before the trial court accepts a guilty plea. (Ibid.) It later clarified that the requirement of such advisements is a matter of the court's own supervisory powers and not a matter of federal constitutional law. (People v. Howard (1992) 1 Cal.4th 1132, 1175.) Therefore, even when a trial court fails to advise a defendant of his or her constitutional rights, a guilty plea "is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (Ibid.) Where "the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of 'the entire proceeding' to assess whether the defendant's admission of the prior conviction was intelligent and voluntary in light of the totality of the circumstances." (People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby).)
In Mosby, the California Supreme Court distinguished between two types of cases in which defendants admitted prior convictions after a jury trial on the substantive charges: (1) truly silent record cases, those in which the record showed "no express advisement or waiver of the Boykin-Tahl rights before a defendant's admission of a prior conviction" (Mosby, supra, 33 Cal.4th at p. 361); and (2) incomplete Boykin-Tahl advisement cases, those in which defendants had been advised of their right to a jury trial, but not of the other two constitutional rights (id. at pp. 362-364). Mosby teaches that, with regard to truly silent record cases, "[it] cannot [be inferred] that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses." (Id. at p. 362.) In incomplete advisement cases, such an inference may sometimes be made. But the incomplete advisement may be held harmless only if the record affirmatively shows the admissions were voluntary and intelligent under the totality of the circumstances. (Id. at pp. 363-364.)
In Mosby, "immediately after the jury found defendant guilty . . . [he] was told he had a right to a jury trial on the prior conviction allegation. (Mosby, supra, 33 Cal.4th at p. 364.) He thereafter admitted the prior conviction. (Id. at pp. 357-359.) The Mosby court reasoned that "[the] defendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation." (Id. at p. 364.) In addition, the Mosby court pointed out that " 'a defendant's prior experience with the criminal justice system' is . . . 'relevant to the question [of] whether he knowingly waived constitutional rights.' " (Id. at p. 365, quoting Parke v. Raley (1992) 506 U.S. 20, 37; see U.S. v. Dawson (9th Cir. 1999) 193 F.3d 1107, 1110-1111.) On that basis, Mosby concluded that the "defendant voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to jury trial." (Mosby, at p. 365, fn. omitted.)
Here, the court did not expressly advise defendant that he had a right to a jury trial on the prison prior allegations. The People argue that the court so advised defendant when it informed him prior to trial that the allegations "would be tried by the court without a jury," and that "if necessary, will hear as a Court trial whether or not you, in fact, suffered those prior offenses." This is not an explicit advisement of the right to a jury trial, which would have sounded more or less like "you have the right to a jury trial on the priors." The trial court did not expressly inform defendant of this right on the record and, therefore, case law does not allow us to infer from the totality of the circumstances that his admission of his prior conviction was made knowingly and intelligently. We therefore vacate the true finding on the prison prior allegation and remand the matter for a new trial on that allegation. Because the true finding is vacated, we need not determine whether defendant admitted each element of the enhancement.
3. Restitution Fines Must Be Reduced to $200 Each
At sentencing, the court imposed "the standard fines and fees . . . for each conviction, and the parole revocation, and all of those standard fees." Defense counsel declined the court's offer to "go through those" fines and fees individually. The minute order reflects that the restitution fine imposed pursuant to section 1202.4, subdivision (b), was $300, as was the accompanying parole revocation restitution fine imposed but stayed pursuant to section 1202.45, subdivision (c).
Defendant claims the $300 restitution fine violates ex post facto principles because it was $100 more than the minimum $200 restitution fine that was in effect on the date he committed the crimes in 2010.
It is well settled that the imposition of restitution fines constitutes punishment and, as such, is subject to state and federal constitutional proscriptions against ex post facto laws. (People v. Souza (2012) 54 Cal.4th 90, 143; In re Vicks (2013) 56 Cal.4th 274, 287 ["The purpose of the ex post facto doctrine is to ensure fair notice of the conduct that constitutes a crime and of the punishment that may be imposed for a crime."].)
The version of section 1202.4 in effect on December 4, 2010, governs because that is the date defendant committed the offenses. Under the version of section 1202.4 in effect at that time, $200 was the minimum restitution fine. (Stats. 2009, ch. 454, § 1.) At the time of sentencing in December 2016, section 1202.4 had since been amended to increase the minimum restitution fine to $300 (§ 1202.4, subd. (b)(1); Stats. 2012, ch. 873, § 1.5, pp. 7236-7242), but that amendment applied only to felonies committed after January 1, 2014.
The People argue defendant waived his right to appeal the restitution fine because he failed to object at trial, citing People v. Gibson (1994) 27 Cal.App.4th 1466, 1469. However, Gibson involved the defendant's failure to challenge the insufficiency of the evidence to support his ability to pay a $2,200 restitution fine under Government Code section 13967, subdivision (a). That was a fact-based inquiry that should have been raised in the trial court so it could have been corrected if necessary. (Gibson, at p. 1469.) In the present case, the lack of an objection in the trial court does not forfeit the ex post facto issue because such an error constitutes an unauthorized sentence and may be corrected at any time. (People v. Zito (1992) 8 Cal.App.4th 736, 741-742.) The People also argue that the $300 restitution fine was legal under Penal Code section 1202.4, subdivision (b), as it was written at the time of the crime, because the court was authorized to impose the fine in an amount between $200 and $10,000. However, even though the court did not specifically state that it intended to impose the minimum fine, it did state that it would be imposing the "standard fines and fees," which from the context implies the court intended to impose the minimum restitution fine and other fees. This also goes to excusing defense counsel's rejection of the court's invitation to go over the fines and fees individually, as defense counsel could reasonably have expected the court to impose the minimum fines and fees authorized under the applicable law.
In addition, because the parole revocation fine must equal the restitution fine, we amend the judgment to reduce each fine from $300 to $200. (People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court has authority to modify a defendant's sentence under § 1260 in lieu of remanding the matter to the trial court].)
DISPOSITION
The true finding on the prison term prior is vacated, and the matter is remanded for a new trial on that allegation. The sentence is modified to stay the sentences on counts 3, 4, 5 and 6 and to reduce the restitution and parole revocation fines to $200 each. The trial court is directed to prepare (1) a supplemental sentencing minute order and (2) an amended abstract of judgment reflecting these modifications, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.