Opinion
F077789
09-06-2019
THE PEOPLE, Plaintiff and Respondent, v. DANIEL A. GARCIA, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF150986A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Meehan, J.
-ooOoo-
PROCEDURAL HISTORY
This matter is before us a second time after defendant Daniel A. Garcia was resentenced in accordance with our decision in People v. Garcia (Jan. 4, 2018, F072596) [nonpub. opn.]. The relevant procedural history is as follows.
I. First Appeal
After robbing a convenience store and shooting at a police officer, defendant was arrested and convicted by jury of the following six offenses: attempted murder of a peace officer (Pen. Code, §§ 664/187, subd. (a)) (count 1), assault with a firearm upon a peace officer (§ 245, subd. (d)(1)) (count 2), shooting at an occupied motor vehicle (§ 246) (count 3), robbery (§ 212.5, subd. (c)) (count 4), active participation in a criminal street gang (§ 186.22, subd. (a)) (count 5), and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 6). The jury found true the special allegations that the attempted murder of the peace officer was willful, deliberate and premeditated (§ 189) and that the victim was a known peace officer (§ 664, subd. (e)(1)). The jury also found true the gang enhancement allegations attached to counts 1 through 4 (§ 186.22, subd. (b)(1)), and the firearm enhancement allegations attached to counts 1 through 5 (§§ 12022.53, subd. (b)-(c), 12022.5, subd. (a)). In a bifurcated proceeding, the trial court found true that defendant suffered a prior serious felony conviction within the meaning of both section 667, subdivision (a)(1), and the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and that he served four prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
The facts underlying defendant's convictions are not relevant to the issues raised on appeal and, therefore, we do not summarize them further.
The jury made the following findings: as to counts 1 through 3, defendant personally and intentionally discharged a firearm under section 12022.53, subdivision (c); as to count 4, defendant personally used a firearm under section 12022.53, subdivision (b); and, as to count 5, defendant personally used a firearm under section 12022.5, subdivision (a).
The 2015 probation report reflects that only two of the four prior prison term allegations are valid, and the trial court imposed only two enhancements under section 667.5, subdivision (b).
The trial court sentenced defendant to an indeterminate term of 68 years to life for shooting at an occupied vehicle (count 3) and a consecutive determinate term of 37 years for robbery (count 4). Sentences on the remaining four counts were stayed pursuant to section 654.
On appeal, defendant claimed his convictions for attempted murder and active participation in a criminal street gang (substantive gang offense) were unsupported by substantial evidence, and the jury's findings as to the penalty enhancement for willful, deliberate and premediated attempted murder and the gang enhancement attached to counts 1 through 4 were unsupported by substantial evidence. He also argued the trial court erred in ruling that witness L.G.'s statements were admissible under the hearsay exceptions for spontaneous and contemporaneous statements. (Evid. Code, §§ 1240, 1241.) Finally, via supplemental briefing, defendant argued that under the California Supreme Court's then-recent decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), he was entitled to reversal of the substantive gang offense and the gang enhancements because the gang expert related case-specific facts drawn from hearsay evidence, some of which was also testimonial under Crawford v. Washington (2004) 541 U.S. 36.
We concluded that defendant's substantial evidence challenges and his hearsay challenge to L.G.'s statements lacked merit. We agreed with defendant, however, that much of the gang expert's testimony relied on hearsay now inadmissible under Sanchez and the error was prejudicial, entitling defendant to reversal of the substantive gang offense and the gang enhancements attached to counts 1 through 4. We remanded the matter for retrial or resentencing as to those counts and otherwise affirmed the judgment.
II. Resentencing
After remittitur was issued, defendant was resentenced on May 15, 2018, to an indeterminate term of 30 years to life, plus a total determinate term of 54 years in prison, as follows. On count 1 (attempted murder), the trial court imposed an indeterminate term of 15 years to life, doubled to 30 years under the Three Strikes law, and an additional 20 years for the firearm enhancement, 5 years for the prior serious felony conviction enhancement and 2 years for the two prior prison term enhancements, for a total determinate term of 27 years. On count 4 (robbery), the court imposed the upper term of 5 years, doubled to 10 years, plus an additional 10 years for the firearm enhancement, 5 years for the prior serious felony conviction enhancement and 2 years for the prior prison term enhancements, for a total determinate term of 27 years, to run consecutively to the sentence on count 1.
The sentences on counts 2 (assault with a firearm), 3 (shooting at an occupied vehicle), and 6 (felon in possession of a firearm) were imposed and stayed under section 654 as follows. On count 2, the court sentenced defendant to the upper term of 8 years, doubled to 16 years, plus an additional 20 years for the firearm enhancement, 5 years for the prior serious felony conviction enhancement and 2 years for the prior prison term enhancements, for a total determinate term of 43 years, stayed. On count 3, the court sentenced defendant to the upper term of 7 years, doubled to 14 years, plus an additional 20 years for the firearm enhancement, 5 years for the prior serious felony conviction enhancement, and 2 years for the prior prison term enhancements, for a total determinate term of 41 years, stayed. Finally, on count 6, the trial court sentenced defendant to the upper term of 3 years, doubled to 6 years, stayed.
As discussed in part II.B. of the Discussion, the court's imposition of the firearm enhancement was unauthorized and is stricken. (§ 12022.53, subds. (a), (c).)
III. Second Appeal
Defendant advances two claims in this appeal. He requests remand so that the trial court may exercise its discretion to strike the prior serious felony conviction enhancement in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.) ch. 1013, §§ 1-2 (Senate Bill No. 1393 or Sen. Bill No. 1393), effective January 1, 2019. He also claims that the trial court inadvertently pronounced the judgment, in relevant part, as an indeterminate term of 54 years in prison rather than a determinate term. He requests remand for resentencing on both issues.
The People concede Senate Bill No. 1393 applies retroactively to this case, but contend remand would be futile given that the trial court declined to exercise its discretion during resentencing to strike or dismiss the firearm enhancements under Senate Bill No. 620 (2017-2018 Reg. Sess.) ch. 682, §§ 1, 2, effective January 1, 2018 (Senate Bill No. 620 or Sen. Bill No. 620). They also concede the court erred in its oral pronouncement of judgment, but contend that because the error was merely a technical one and the intended judgment is reflected correctly in the minute order and abstract of judgment, we may correct the sentence on review.
We agree with the People that in this instance, the court's comments in declining to exercise its discretion to strike or dismiss the firearm enhancements clearly indicate it would not exercise its discretion to strike or dismiss the serious felony conviction enhancement and, therefore, remand for resentencing is not necessary. We also agree with the parties that the trial court's error in pronouncing defendant's determinate sentence as 54 years "to life" is of the type that we may correct on review. On our own motion, we also correct, as to count 3, the erroneous reference to section 426 rather than section 246. Finally, again as to count 3 and on our own motion, we find that imposition of the sentence enhancement for personal and intentional discharge of a firearm under section 12022.53, subdivision (c), was unauthorized and we order it stricken.
Except as modified, the judgment is affirmed.
DISCUSSION
I. Prior Serious Felony Conviction Enhancement
A. Background
At the time of defendant's sentencing, the trial court was required to impose the five-year enhancement under section 667, former subdivision (a)(1), based on defendant's prior serious felony conviction. However, effective January 1, 2019, section 667, subdivision (a)(1), and section 1385 were amended to permit a trial court, in the furtherance of justice, to strike or dismiss a five-year enhancement under section 667, subdivision (a)(1). (Sen. Bill No. 1393.)
Defendant seeks remand of this matter so that the trial court may exercise its discretion whether to strike his prior serious felony conviction enhancement. The parties agree that the statutory amendments apply retroactively in this case. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-973; People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425.) The focus of their disagreement is whether remand for resentencing is required.
The controlling principle was articulated by the California Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1354. "'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Id. at p. 1391.)
The People contend that remand is not required because it is clear from the sentencing record that the trial court would not have exercised its discretion to strike the prior serious felony conviction enhancement had it then had discretion to do so. The People point to the court's selection of the upper terms on counts 2, 3, 4 and 6, its imposition of a consecutive term on count 4, and its denial of defendant's request to strike the firearm enhancements pursuant to Senate Bill No. 620. In addition, they contend the probation report identified numerous aggravating factors and no mitigating factors, and the record contains no indication of leniency.
Defendant responds that remand is required because there is no clear indication in the record that the trial court would not exercise its discretion to strike or dismiss the prior serious felony enhancement.
We agree with the People in this instance. At the time of defendant's original sentencing, the trial court lacked discretion to strike or dismiss the firearm enhancements and the prior serious felony conviction enhancement. At the time of resentencing, however, changes to the Penal Code pursuant to Senate Bill No. 620 were in effect and the court had newly acquired discretion to strike or dismiss the firearm enhancements.
Defense counsel asked the court to review the sentence as related to "the gun charge." The court responded, "There is a case that says that the Court now has—based upon amendment to one of the statutes—now has discretion to strike enhancements; however, in this case, the Court is not inclined to do that based upon the facts and the way that the gun was used and the manner—which could have possibly killed a police officer."
Based on the court's express recognition that it had the discretion to strike the firearm enhancements but was not going to do so based on the facts of this case, which include the attempted murder of a peace officer with a firearm, we conclude that remand to allow the court to consider whether to exercise its discretion to strike the serious felony conviction enhancement would be an idle act. (People v. Gutierrez, supra, 58 Cal.4th at p. 1391; accord, People v. Jones (2019) 32 Cal.App.5th 267, 274 [concluding trial court would not have dismissed prior serious felony conviction even if it had the discretion to do so and declining to remand matter in light of Sen. Bill No. 1393]; People v. McVey (2018) 24 Cal.App.5th 405, 419 [remand under Sen. Bill No. 620 would serve only "to squander scarce judicial resources" in light of express comments on record]; see People v. Garcia, supra, 28 Cal.App.5th at p. 973, fn. 3 [remand under Sen. Bill No. 1393 not futile where record did not indicate court would have declined to exercise its discretion]; People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111 [determination that record clearly indicates remand not required should not be based only on the original sentence].) Accordingly, we decline defendant's request to remand the matter for resentencing under Senate Bill No. 1393.
II. Sentencing Errors
A. Error in Pronouncement of Total Determinate Term
In pronouncing judgment, the trial court misspoke in part, stating it was imposing "an indeterminate term of 30 years to life, plus a determinate term of 54 years to life" in prison. (Italics added.) The minute order, the abstract of judgment and the probation report on which the court relied do not contain this error.
The court's oral pronouncement is the judgment of conviction. (People v. Jones (2012) 54 Cal.4th 1, 89.) However, we have the authority to correct clerical errors on our own motion (§ 1260; People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705-706; People v. Amaya (2015) 239 Cal.App.4th 379, 385), and "[a]s a general rule, a record that is in conflict will be harmonized if possible[] (People v. Smith (1983) 33 Cal.3d 596, 599)[.] If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case. (Ibid.)" (People v. Harrison (2005) 35 Cal.4th 208, 226.)
We agree with the parties that the court's reference to "life" in conjunction with its imposition of the 54-year determinate term was merely inadvertent and does not control. The record clearly demonstrates that the court simply misspoke, and the error was unrelated to the court's deliberate exercise of judicial discretion and did not affect the parties' substantial rights. (In re Candelario, supra, 3 Cal.3d at pp. 705-706.) Therefore, the error is of no effect. (People v. Thompson (2009) 180 Cal.App.4th 974, 978, citing People v. Cleveland (2004) 32 Cal.4th 704, 768.)
As well, we note that count 3 is erroneously identified in the reporter's transcript as a violation of section 426 rather than section 246. It is unclear if the trial court misspoke or there was a transcription error, but this error, too, is of no effect.
B. Imposition of Firearm Enhancement on Count 3
Finally, "a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Errors of this type "are reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.'" (People v. Smith (2001) 24 Cal.4th 849, 852.)
Although not raised by the parties, the trial court erred here in imposing the firearm enhancement on count 3 (shooting at an occupied vehicle) under section 12022.53, subdivision (c). Section 12022.53, subdivision (a), sets forth certain enumerated felonies to which the statute applies. However, shooting at an occupied vehicle in violation of section 246 is not one of those enumerated felonies. Relevant to defendant's original sentencing on count 3 for shooting at an occupied vehicle, the jury found true the gang enhancement under section 186.22, subdivision (b), and the enhancement for personal discharge of a firearm under 12022.53, subdivision (c). Given those findings, defendant was subject to section 12022.53 in accordance with subdivision (e) of the statute. However, we reversed the gang enhancement and, therefore, subdivision (e) no longer applies in this case.
We note that subdivision (d) of section 12022.53 applies, in relevant part, to shooting at an occupied vehicle where the personal and intentional discharge of a firearm causes great bodily injury or death, but this case did not involve injuries.
As shooting at an occupied vehicle in violation of section 246 is not one of the enumerated offenses under subdivision (a) of the statute, the court's imposition of a 20-year sentence enhancement on count 3 pursuant to section 12022.53, subdivision (c), was unauthorized. We have the authority to correct this error on review and order the enhancement stricken.
DISPOSITION
On count 3, the sentence enhancement for personal and intentional discharge of a firearm, imposed under section 12022.53, subdivision (c), is stricken. The trial court is directed to issue a minute order reflecting this modification. The judgment is otherwise affirmed.