Opinion
H028514
5-15-2007
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO LEONARD GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED
The Santa Clara County District Attorney charged appellant Armando Garcia by information with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(l), count one), battery with serious bodily injury (§§ 242, 243, subd. (d), count two), grand theft from a person (§§ 484,487, subd. (c), count three), possession of a billy (§ 12020, subd. (a)(l), count four), and petty theft with priors (§ 666, count five). As to count one, the information alleged that appellant personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). As to count two, the information alleged that appellant inflicted great bodily injury within the meaning of sections 667 and 1192.7. In addition, the information alleged that appellant had suffered one prior robbery conviction and had served a prior prison term (§§ 667, subd. (a), 667, subds. (b)-(i), 667.5, subd. (a)).
Unless noted, all unspecified statutory references are to the Penal Code.
On August 28, 2004, a jury found appellant guilty on count two, and found the great bodily injury (GBI) enhancement to be true. However, the jury found appellant not guilty on counts one, three, four, and five, but found appellant guilty of the lesser included misdemeanor assault on count one. The allegations regarding the priors were tried to the court and all found to be true.
On February 24, 2005, the court granted appellants Romero motion to strike his prior strike conviction for robbery and sentenced appellant to an aggregate state prison term of eight years consisting of the mid-term of three years on count two, plus a five-year enhancement for his prior serious felony conviction. (§ 667, subd. (a).) In addition, for the misdemeanor assault count, the court imposed a 60-day county jail sentence to be served concurrently to appellants prison sentence.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On February 25, 2005, appellant filed a notice of appeal.
On appeal appellant raises the following seven issues. First, he contends that his Fifth Amendment rights were violated because the prosecutor committed Doyle error. Second, the trial court erred in concluding that he was presumptively ineligible for probation. Third, if this court determines that he has waived his preceding claim, his counsel provided ineffective assistance. Fourth, this court should strike the true finding on a section 12022.7 allegation as to the lesser simple assault. Fifth, the trial court should have stayed his sentence on count one pursuant to Penal Code section 654. Sixth, this court should strike the prison prior. Finally, the abstract of judgment should be corrected to reflect that he received a five-year enhancement pursuant to section 667, subdivision (a), not section 667.5, subdivision (a). The Attorney General concedes the fourth, fifth and seventh issues. We agree with these concessions. Further, we agree with appellant that we must strike the prison prior enhancement. However, we disagree with appellants remaining contentions. Accordingly, we affirm the judgment.
Doyle v. Ohio (1976) 426 U.S. 610
Facts
On April 17, 2003, Michael Rodriguez was working as a bouncer at Mr. Ts Bar and Grill in San Jose. Rodriguez testified that Mr. Ts has three stages with bikini dancers. At some point in the late afternoon or early evening, Rodriguez responded to a disturbance near stage three. Rodriguez approached appellant and another patron, Gustavo Lopez. Both men were drunk and standing up. Appellant seemed agitated and angry. According to Rodriguez, appellant was "puffing his chest out, you know, as if saying he was gonna do something." On the other hand, Lopez was quiet, calm, and withdrawn. Appellant told Rodriguez that he had been "bumped." Appellant was with two people, and Rodriguez told "the older gentleman" to keep an eye on appellant.
Rodriguez separated appellant and Lopez, by moving Lopez to another area of the bar. Rodriguez chose to move Lopez, not because he believed Lopez was the aggressor, but because Lopez was alone, and it "was easier to move one person than three." When Rodriguez spoke to Lopez, Lopez seemed to have trouble understanding him, and Rodriguez believed that Lopez did not speak English fluently.
Later that evening, Juan Rodriguez, another patron at Mr. Ts, was on the patio and saw appellant and Lopez arguing. He testified that appellant was talking loudly and that he challenged Lopez to fight. Lopez told appellant to "leave me alone" in Spanish. Juan Rodriguez testified that he intervened, told appellant to relax, and encouraged him to go back inside the bar and have a drink. Appellant said that he was just trying to settle an argument with Lopez. Juan Rodriguez told appellant that he did not think Lopez could understand English. After Juan Rodriguez encouraged appellant to go back inside, appellant tried to apologize to Lopez in Spanish. Lopez ignored him, just as he had ignored appellants threats and invitations to fight. Lopez reiterated that he wanted to be left alone. Appellant got angry and said that if somebody apologizes, "you dont disrespect them, you accept their apology, or at least acknowledge it."
Finally, Juan Rodriguez convinced appellant to go inside the bar, and they turned away from Lopez. As they were walking away, Lopez muttered something under his breath. At that point, appellant turned around, took three or four steps, and punched Lopez on the left side of his face. Lopez was taking a drink from his beer bottle when appellant punched him. The first punch knocked Lopez unconscious and he fell to the ground. Then, appellant punched Lopez four or five more times. Juan Rodriguez tapped appellant on the shoulder and said, "thats enough." Appellant stood up and started backing away. Then, he reached down and took something from Lopezs jacket pocket. Appellant went inside the bar. Juan Rodriguez could not see what appellant had taken from Lopez.
Michael Rodriguez and some patrons from the bar followed appellant into the parking lot. When they got to the parking lot, appellant was holding an aluminum baseball bat. Another bar patron told appellant not to use the bat and to give it to the bouncer. Appellant gave the bat to a bouncer and then got into a car and drove away. Michael Rodriguez wrote down the license plate number and called the police.
The next day, Sergeant Lawrence Ryan arrested appellant. Appellant seemed nervous and the knuckles on his right hand were cut and swollen.
Lopez testified that he did not recall anything about the incident. He recalled going to Mr. Ts, having a few beers, and then waking up in the hospital.
Lopezs jaw was broken in two places and was wired shut for over a month. At the time of trial, Lopez still suffered from dizziness and confusion, and had to leave his job.
Appellant testified in his own defense. He claimed that he was acting in self-defense. According to appellant, he was having some drinks with his boss and a client when Lopez sat down directly behind their chairs at stage three. After their chairs bumped, appellant asked Lopez to move, indicating that there were plenty of open seats at the bar. Lopez ignored him. After another bumping incident, appellant asked Lopez to move again. Lopez said, "[Y]ou dont want me to hate you. You dont know me. . . . [Y]ou dont know what Ill do to you." Lopez had an accent but spoke broken English. Appellant felt threatened, but he did not move. After appellant accidentally bumped Lopez a third time, Lopez said, "I told you, you dont want me to hate you." Lopez stood up and said, "lets take this outside." At that point, the bouncer approached and asked if Lopez was "causing trouble again?" The bouncer told appellant to stay where he was, and he would take care of Lopez. The bouncer moved Lopez to another area of the bar.
After Lopez moved, appellant saw Lopez watching him like a "mad dog." Eventually, appellant went to the patio to get something to eat. No one was manning the food stand, so he turned to go back inside. He saw Lopez walking toward him. Lopez said, "[Y]our friends aint here now, what are you gonna do?" Lopez pushed him on the right shoulder. At that point, Juan Rodriguez approached and told them they should not be fighting. Appellant offered to buy Lopez a beer, and apologized to him in an effort to calm him down. During this exchange, Lopez kept one hand inside his jacket pocket, and held his beer bottle in the other hand.
Juan Rodriguez offered to buy appellant a beer and appellant accepted his offer. As they walked away, appellant heard Lopez say, "[S]on of a bitch." Appellant was scared and thought he was going to be attacked. He turned around, and Lopez was holding his beer bottle up in the air like he was going to hit appellant with it. Appellant hit Lopez on the left side of his face. He hit Lopez two or three more times.
Appellant claimed that he only reached into Lopezs pocket to see if he had a weapon. He stated that he did not take anything from Lopez. Appellant testified that he did not threaten anyone with the baseball bat. He grabbed it to protect himself from a man who had it in the back of his car.
Discussion
Doyle Error
Appellant contends that his Fifth Amendment rights were violated when the prosecutor commented on his post-arrest silence.
During cross-examination of appellant, the prosecutor asked appellant about his contact with Sergeant Ryan the day after the incident.
"Q. The next day when you were arrested you were trying to go out the back door of the business?
"A. No.
"Q. So you were cooperative at all times?
"A. Yes.
"Q. In fact, your first question to Detective Sergeant Ryan is, what is this all about?
"A. Could have been.
"Q. You dont remember?
"A. No.
"Q. You didnt say, hey, I had to defend myself?"
At that point, defense counsel objected, and both parties approached the bench. Following a bench conference, the prosecutor withdrew the question.
Relying on Doyle v. Ohio, supra, 426 U.S. 610 (Doyle), appellant claims that this sequence of events violated his "Fifth Amendment right to remain silent and denied him due process of law in violation of the Fourteenth Amendment to the U.S. Constitution."
In Doyle, supra, 426 U.S. 610, the United States Supreme Court specifically addressed comment by the prosecution on defendants exercise of the right to remain silent after having been given Miranda warnings, and held that the use of defendants silence for impeachment purposes deprived him of due process. (Doyle, supra, 426 U.S at p. 620.) The petitioners in Doyle were arrested on narcotics charges, immediately invoked their right to remain silent and made no post-arrest statements to police. (Id. at p. 611.) Thereafter at trial, the defendants testified that they had been "framed," and in fact, it was the person that the government used to set them up that was the person selling the drugs. (Id. at pp. 612-613.)
At trial in Doyle the following colloquy occurred:
"`Q. [PROSECUTOR:] [The officer] did arrive on the scene?
`A. [DEFENDANT:] Yes, he did.
`Q. And I assume you told him all about what happened to you?
`A. No.
`Q. You didnt tell [the officer]?
`A. No.
`Q. You didnt tell [the officer] this guy put $ 1,300 in your car?
`A. No, sir.
`Q. And we cant understand any reason why anyone would put money in your car and you were chasing him around town and trying to give it back?
`A. I didnt understand that.
`Q. You mean you didnt tell him that?
`A. Tell him what?
`Q. [I]f that is all you had to do with this and you are innocent, when [the officer] arrived on the scene why didnt you tell him?
`Q. But in any event you didnt bother to tell [the officer] anything about this?
`A. No, sir. " (Doyle, supra, 426 U.S. at pp. 613-614, fn. 4.)
The colloquy in Doyle was a focused inquiry into why the accused had not asserted his innocence to the arresting officer. (Doyle, supra, 426 U.S. at pp. 613-614.) The accused in that case ended up admitting that he had never told the arresting officer the exculpatory story that he told the jury. (Ibid.) The court in Doyle overruled defense objections to testimony that discussed the content of the communication. (Id. at p. 614.)
"The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony." (Wainwright v. Greenfield (1986) 474 U.S. 284, 292.)
"Silence" within the meaning of Doyle refers to the defendants personal refusal to speak, or his affirmative invocation of the right not to speak. In Gravley v. Mills (6th Cir. 1996) 87 F.3d 779, 787-788, the prosecutor breached the rule by repeated references to defendants invocation of his right to remain silent during police interrogation, his failure to testify at a preliminary hearing, and his failure to testify at a probation revocation hearing. In Wainwright v. Greenfield, supra, 474 U.S. at page 287, the error was the prosecutors suggestion that defendants post-arrest refusal to answer questions without consulting an attorney was inconsistent with an insanity defense. In Fields v. Leapley (8th Cir. 1994) 30 F.3d 986, 990, the prosecutor impermissibly referred to defendants statements, " I aint saying nothing, " and " I wont talk to you about that without an attorney, " during post-arrest interviews.
In Fletcher v. Weir (1982) 455 U.S. 603, 607 the Supreme Court made clear that its holding in Doyle applied only when the defendant had been given Miranda warnings. Therein it stated, "In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand."
In the years following Doyle, the courts of this state created what was denoted the "California rule." (See People v. Fondron (1984) 157 Cal.App.3d 390, 397; People v. Free (1982) 131 Cal.App.3d 155, 165.) That rule forbade cross-examination or commentary on a defendants postarrest silence whether Miranda warnings were given or not. However, also in 1982, Proposition 8 declared that the exclusionary rule applies only to matters for which federal law prohibits admission. Thus, in People v. OSullivan (1990) 217 Cal.App.3d 237, 240, the court held, "[A]fter Proposition 8, evidence of appellants pre-Miranda silence may be excluded only if application of the exclusionary rule is compelled by federal law. Since the admission of evidence of pre-Miranda silence to rebut a defense claimed for the first time at trial is permitted by federal law [citation], appellants pre-Miranda silence was admissible on cross-examination and rebuttal. . . ."
Accordingly, Doyle only bars questions about an accuseds silence where that silence followed the accuseds being informed of his constitutional right to remain silent. (People v. Delgado (1992) 10 Cal.App.4th 1837, 1842-1843.)
As appellant points out, it is unclear from the record whether the arresting officer read appellant his Miranda rights. Appellant urges this court to entertain a presumption that Miranda warnings were given.
Miranda v. Arizona (1966) 384 U.S. 436.
"`A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . ." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Since the record is silent on whether appellant was advised of his constitutional right to remain silent, he has failed to satisfy his burden of affirmatively showing error. We must presume that the predicate for his claim of Doyle error is absent.
Even if this court were to overlook this failure, we would not find Doyle error on this record. In Greer v. Miller (1987) 483 U.S. 756, 763 (Greer) the Supreme Court explained that a Doyle violation has two components. The first component is that the prosecution makes use of a defendants post-arrest silence for impeachment purposes. The second component is that the trial court permits that use, such as when it overrules a defense objection, thereby giving the jury the unmistakable impression that what the prosecution is doing is legitimate. Both elements are essential. (Id. at pp. 761-764.)
In Greer, defense counsel immediately objected to the prosecutors questioning of the defendant in which he asked the defendant "Why didnt you tell this story to anybody when you got arrested?" (Greer, supra, 483 U.S. at p. 759.) Out of the hearing of the jury, the defendants counsel moved for a mistrial on the ground that the prosecutors question violated the defendants right to remain silent after arrest. The trial judge denied the motion, but immediately sustained the objection and instructed the jury to "ignore [the] question, for the time being." The prosecutor did not pursue the issue further, nor did he mention it during closing argument. At the conclusion of the presentation of evidence, defense counsel did not renew his objections or request an instruction concerning the prosecutors question. Further, the judge specifically instructed the jury to " disregard questions . . . to which objections were sustained. " The defendant was convicted of murder, aggravated kidnapping, and robbery, and sentenced to 80 years in prison. (Id. at p. 759.)
The Greer court concluded that because the trial judge had sustained an objection to the only question that touched upon the defendants silence, no further questioning or argument with respect to the defendants silence occurred, and the trial judge specifically advised the jury that it should disregard any questions to which an objection was sustained, no Doyle violation occurred. (Greer, supra, 483 U.S. at pp. 764-765.)
On appeal the State argued that even if the prosecutors questions about the defendants post arrest silence was prohibited by Doyle, the error was harmless under the standards of Chapman v. California (1967) 386 U.S. 18. (Greer, supra, 483 U.S. at p. 759.) The Greer court agreed. (Id. at pp. 765-767.)
Here, after defense counsel objected to the prosecutors line of questioning, the prosecutor withdrew the question and did not refer to appellants silence again. Furthermore, the court instructed the jury on two occasions "if an objection [is] sustained to a question, do not guess what the answer might have been." Moreover, the court instructed the jury to "not assume to be true any insinuation suggested by a question asked a witness." Therefore, just as in Greer, the trial court did not permit the inquiry that Doyle forbids. Appellants post-arrest silence was never submitted to the jury as evidence from which it could draw an impermissible inference. Accordingly, no Doyle violation occurred.
The second time the court instructed the jury on this issue the court told the jury that "If an objection was sustained to a question, do not guess what the answer might have been."
Presumptive Probation Ineligibility
After the court granted appellants Romero motion, it found that appellant was presumptively ineligible for probation pursuant to Penal Code section 1203, subdivision (e)(4). According to the probation report, appellant has a robbery conviction in California as well as "two Felony violations of Section 265861(d) [sic] of the United States Federal Code (Unlawful Possession of an Unlicensed Firearm). The defendant was ordered to serve five months in Federal custody and was placed on three years supervised Probation."
Section 1203, subdivision (e)(4) provides in relevant part: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony."
Appellant contends that the court erred in concluding that he was presumptively ineligible for probation. He contends that section 265861(d) appears to refer to 26 United States Code section 5861, the elements of which, he argues, do not appear to constitute a felony in California. Respondent agrees that appellant was convicted of a violation of 26 United States Code section 5861, but argues that appellant did not object at the time of sentencing and has "waived" his claim on appeal.
In People v. Scott (1994) 9 Cal.4th 331, (Scott), the California Supreme Court considered whether complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons can be raised for the first time on appeal. The Supreme Court reasoned "[r]outine defects in the courts statement of reasons are easily prevented and corrected if called to the courts attention." (Id. at p. 353.) Thus, the Supreme Court found that "the waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices." (Ibid.)
Appellant contends that Scott should not apply in a situation such as this where the trial court lacked sentencing discretion. He argues that the trial courts finding that he was presumptively ineligible for probation "was not an exercise of sentencing discretion as Scott envisioned it."
In its analysis in Scott, the Supreme Court noted that the "parties have ample opportunity to influence the courts sentencing choices under the determinate scheme. As a practical matter, both sides often know before the hearing what sentence is likely to be imposed and the reasons therefor. Such information is contained in the probation report, which is required in every felony case and generally provided to the court and parties before sentencing. [Citations.] In anticipation of the hearing, the defense may file, among other things, a statement in mitigation urging specific sentencing choices and challenging the information and recommendations contained in the probation report. [Citations.] Relevant argument and evidence also may be presented at sentencing. [Citations.]" (Scott, supra, 9 Cal.4th at pp. 350-351.) Here, however, there was nothing contained in the probation report that would have put appellant on notice that the court would find he was presumptively ineligible for probation once the court struck his prior strike conviction.
The probation report did note that appellant was ineligible for probation pursuant to section 667, subdivision (c)(2).
Nevertheless, "[a] defendants eligibility for probation is determined, by deductive reasoning, from statutes identifying the types of offenses or offenders who are ineligible to receive it. It is absolutely unavailable as a sentencing choice in many serious felony cases and presumptively unavailable in others unless unusual circumstances are present and the interests of justice are best served thereby. [Citations.]" (People v. Welch (1993) 5 Cal.4th 228, 233.) Certainly, "a defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent. [Citations.]" (Scott, supra, 9 Cal.4th at p. 351.)
For these reasons, we conclude that appellant has "waived" this issue on appeal. Appellant is barred from raising this contention for the first time on appeal because his trial counsel did not assert it at sentencing.
More technically, appellant has forfeited this issue. (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6 ["the terms waiver and forfeiture have long been used interchangeably. . . . Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." [Citations.] [Citation.]"].)
Naturally, appellant argues that his trial counsel was ineffective in failing to make this objection. We are not persuaded by appellants argument because any objection would have been futile. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091 [defense counsel does not have to make "futile motions" or "indulge in idle acts to appear competent"].)
"To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsels representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the petitioner. (Strickland v. Washington (1984) 466 U.S. 668, 687 . . . ; In re Wilson (1992) 3 Cal.4th 945, 950 . . . .) `A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland, supra, 466 U.S. at p. 694 . . . .)" (In re Neely (1993) 6 Cal.4th 901, 908-909.)
The premise of appellants ineffective assistance of counsel argument is that in failing to point out that appellants federal convictions did not render him presumptively ineligible for probation, "appellants counsel violated the applicable standard of care."
Appellant concedes he was convicted of two violations of title 26 United States Code section 5861(d), for which he served five months in federal custody and was placed on three years supervised probation. Appellant argues, however, that the elements of a violation of 26 United States Code section 5861(d) do not appear to constitute a felony in California.
26 United States Code section 5861 provides: "It shall be unlawful for any person— . . . [¶] (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." "[U]nder 26 U.S.C. § 5861(d), not all firearms must be registered, only those that Congress found to be inherently dangerous and lacking in lawful purposes, such as sawed-off shotguns and grenades." (United States v. Fortes (1st Cir. 1998) 141 F.3d 1, 7.)
As noted, under section 1203 a defendant is presumptively ineligible for probation if he or she "has been previously convicted twice in this state of a felony, or in any other place of a public offense which, if committed in this state, would have been punishable as a felony." (§ 1203, subd. (e)(4).)
Thus, the resolution of this issue rests, in part, on what constitutes a felony under California law, or whether a violation of 26 United States Code section 5861 is a public offense which, if committed in this state, would have been punishable as a felony.
It is not clear from the record where the prosecution took place, but appellant was under the jurisdiction of the Federal court.
Section 17 provides "(a) A felony is a crime which is punishable with death or imprisonment in the state prison." Accordingly, under California law whether an offense is a felony "is determined by the place of imprisonment, the term of imprisonment authorized not being a factor." (Ex Parte Humphrey (1923) 64 Cal.App. 572, 575.) In contrast, "[u]nder the federal law, the question whether a crime, not punishable by death, is a felony or a misdemeanor depends upon the term of imprisonment which a court is authorized to impose . . . ." (Ibid.)
A violation of title 26 United States Code section 5861(d) is a felony. (United States v. Booker (6th Cir. 1972) 461 F.2d. 990, 992.) In fact, for immigration purposes, it is considered an aggravated felony under 8 United States Code section 1101(a)(43)(E)(iii).
Hence, since appellant was not imprisoned in the state prison for his violations of 26 United States Code section 5861, he has not been "previously convicted twice in this state of a felony."
Respondent points out that for purposes of 26 United States Code section 5861, a firearm is defined as " (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. [¶] (26 U.S.C. § 5846). "
26 United States Code section 5845(e) defines any other weapon as "any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire."
Citing to section 12020, subdivisions (a) and (c)(1)(A)-(D) [short-barreled shotguns and devices that can fire a fixed shotgun shell], (a) and (c)(2)(A)-(C) [concealed weapons], section 12220 [machine guns], section 12520 [silencers], and 12303 [destructive devices], respondent argues that possession of any of the firearms defined by 26 United States Code section 5845 would be punishable as a felony in California regardless of its registration status.
We agree with respondent that possession of a machine gun is a felony in California. (§ 12220, subd. (a), ["[a]ny person . . . who within this states possesses or knowingly transports a machinegun . . . is guilty of a public offense and upon conviction thereof shall be punished by imprisonment in the state prison, or by a fine not to exceed ten thousand dollars ($10,000), or by both such fine and imprisonment"].) Further, we agree that possession of a silencer is a felony. (§ 12520, ["Any person . . . who within this state possesses a silencer is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state prison or by a fine not to exceed ten thousand dollars ($10,000) or by both"].) However, possession of a short barreled shotgun, short barreled rifle or destructive device is a so called "wobbler offense"—punishable either as a felony or misdemeanor. (§§ 12020, subd. (a), 12025, subds. (b) (1)-(7), 12303.) Nevertheless, possession of any of these firearms in California "would have been punishable as a felony."
Appellant contends that section 1203 is limited to " public offenses " under sister state or federal law that are also felonies under California law. Without citation to any authority, he contends that it does not create a disqualifying felony for all conduct proved up in a sister state or federal prosecution that happens to be illegal in California. We disagree. If in substance the crime comes within Californias definitions of an enumerated crime, it does not matter what the crime is designated under federal or sister state law. (See Ex Parte McVickers (1946) 29 Cal.2d. 264, 267.)
"A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: [¶] 1. Death; [¶] 2. Imprisonment; [¶] 3. Fine; [¶] 4. Removal from office; or, [¶] 5. Disqualification to hold and enjoy any office of honor, trust, or profit in this State." (§ 15.) The penalty for a violation of 26 United States Code section 5861 is a fine of not more than $10,000 or imprisonment for not more than 10 years or both. (26 U.S.C. § 5871.)
"The National Firearms Act, 26 U.S.C. § 5801, et seq. . . . , establishes a statutory framework to ensure that manufacturers, importers, and dealers of firearms pay a tax upon and properly register all firearms prior to transfer." (United States v. Lim (7th Cir. 2006) 444 F.3d 910, 912.) "Section 5811 requires the transferor to pay a tax on each firearm transferred. Section 5841(b) additionally requires that each transferred firearm be registered to the transferee by the transferor in the National Firearms Registration and Transfer Record . . . . And section 5861(d) prohibits any individual from receiv[ing] or possess[ing] a firearm which is not registered to him in the [Firearms Record]. " (Ibid.)
Thus, the essence of a violation of 26 United States Code section 5861 is possession of a firearm. The fact that the federal crime requires an additional element of non-registration is of no consequence. Appellants possession of any of the enumerated firearms, with or without the element of registration, would have been punishable as a felony in California. Simply put, the adjudicated element of a violation of 26 United States Code section 5861 (possession of a "firearm") is in substance a crime as defined by the laws of California and enumerated in sections 12020, subdivisions (a) and (c)(1)(A)-(D), (a) and (c)(2)(A)-(C), section 12220, section 12520, and 12303. (See Ex Parte McVickers, supra, 29 Cal.2d. 264, 267; People v. Christenbery (1959) 167 Cal.App.2d 751, 757.)
Accordingly, the court correctly determined that appellant was presumptively ineligible for probation. Consequently, appellants counsel was not ineffective in failing to raise this issue at sentencing.
The True Finding on the 12022.7 Allegation
The jury found appellant not guilty of a felony on count one, assault by force likely to produce great bodily injury. Nevertheless, the jury found appellant guilty on the lesser-included misdemeanor assault charge and found the allegation of GBI attached to count one to be not true. The jury found appellant guilty on count two and found true the GBI allegation. Thereafter, reasoning that the verdicts were inconsistent, the court sent the jury back to deliberate on the GBI allegation attached to count one. Subsequently, the jury found the GBI allegation attached to count one to be true.
Appellant contends that once the jury found him guilty of only the lesser-included misdemeanor assault, the GBI allegation should not have been resubmitted to the jury. Respondent concedes the issue and points out that because a GBI allegation applies only to the commission of a felony, the true finding by the jury was unnecessary and could not be applied to the misdemeanor assault. We agree.
"Section 12022.7 imposes additional punishment upon a person who inflicts great bodily injury . . . in the commission . . . of a felony . . . " (People v. Mixon (1990) 225 Cal.App.3d 1471,1488.)
The GBI finding is inapplicable to a misdemeanor conviction. The abstract of judgment reflects the following notation — "Count 1 misd[PC 240/241] (w/PC12022.7(a)/1202(e)(3) does not apply) . . . ." Even though the abstract of judgment reflects that the GBI finding does not apply we will order the trial court to strike the finding from the abstract of judgment to avoid confusion.
Section 654As noted, the jury convicted appellant of misdemeanor assault in count one and of felony battery with GBI in count two. The trial court sentenced appellant to state prison on count two. Thereafter, the court imposed a 60-day county jail sentence for count one, to run concurrently with the sentence on count two.
Appellant contends that pursuant to section 654, the county jail sentence should have been stayed. Respondent concedes the issue. We agree.
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 . . . ."
"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) It is the defendants intent and objective that determines whether the course of conduct is indivisible. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Accordingly, " [i]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. " (People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.)
Here the assault and battery convictions were both based on appellants attack on Lopez. For that reason, the trial court should have stayed the misdemeanor sentence on count one. "When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Such stay is to be effective pending the successful service of sentence for the more serious conviction, at which time the stay is to become permanent." (People v. Miller (1977) 18 Cal.3d 873, 886, overruled on another ground as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8.) Accordingly, we will stay execution of sentence on the assault count.
The Prison Prior
Based on appellants prior robbery conviction, the court imposed a five-year enhancement pursuant to Penal Code section 667, subdivision (a). It appears the court stayed a three-year prior prison term enhancement pursuant to section 667.5, subdivision (a). In so doing, the court stated that it was "aware that there was an enhancement that was found to be true by the jury pursuant to 667.5 (a)."
Appellant contends that the section 667.5, subdivision (a) enhancement was improperly imposed because battery causing serious bodily injury is not listed as a crime for which the three-year enhancement applies.
Section 667.5, subdivision (a) provides: "Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction."
Appellant concedes that his prior conviction for robbery qualifies as a violent felony, but argues that his conviction for battery causing serious bodily injury is not listed under subdivision (c) of section 667.5.
Respondent agrees with appellant that battery with serious bodily injury is not included in subdivision (c) of Penal Code section 667.5. However, respondent notes that subdivision (c) does include "[a]ny felony in which the defendant inflicts great bodily injury on a person other than an accomplice which has been charged and proved as provided for in Section 12022.7 . . . ." Thus, since the jury found that in the commission of count two, "appellant personally inflicted great bodily injury on another person, Gustavo Lopez " this was sufficient to permit the enhancements.
Section 667.5, subdivision (c)(8) so provides.
Appellant counters that serious bodily injury was an element of count two and he did not receive any additional time for it. Further, the allegation of GBI was charged under Penal Code sections 667 and 1192.7, not section 12022.7. Accordingly, he argues the prison prior must be set aside.
Respondent argues that People v. Cory (1984) 157 Cal.App.3d 1094 (Cory) supports the proposition that whether or not the verdict alleged the infliction of GBI pursuant to section 1192.7 or section 12022.7, the factual finding required by the jury was the same and was sufficient to permit the enhancement. In Cory, the defendant was charged with robbery. The information alleged, for purposes of both probation ineligibility (§ 1203.06, subd. (a)(1)) and sentence enhancement (§ 12022.5), that he used a firearm. (Id. at p. 1101-1102.) The jury returned a finding " that said defendant personally used a firearm within the meaning of Penal Code Section 1203.06(a)(1) "; it did not return a separate finding with regard to section 12022.5. (Id. at p. 1102.) The court held the facts to be found under both statutes were the same, and hence a single finding was sufficient for both purposes. (Id. at pp. 1102-1104.) Thus, the Cory court held that it was immaterial that only one of two charged firearm use statutes was enumerated in the verdict form. (Id. at p. 1104.)
Appellant contends that Cory supports his position, because in Cory both firearm enhancements were charged in the accusatory pleading. Appellant asserts that here the prosecution could not and did not charge him pursuant to section 12022.7. Therefore, the prison prior must be set aside.
Section 12022.7, subdivision (g) provides: "Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense."
In People v. Hawkins (2003) 108 Cal.App.4th 527, the court found that the defendants conviction for battery with serious bodily injury (§ 243, subd. (d)) could never be a violent felony under section 667.5, subdivision (c)(8). This was because section 12022.7, as it read at the time of Hawkins, precluded its application where great bodily injury was an element of the offense, unless the offense involved domestic violence. (Id. at pp. 529-531.)
The version of section 12022.7 in effect at the time of the Hawkins decision contained no subdivisions. (Hawkins, supra, 15 Cal.App.4th at p. 1375.) It provided in language substantially the same as subdivision (g) of the version of section 12022.7 in effect at the time of appellants sentencing, that no enhancement under the section was to be imposed if "infliction of great bodily injury is an element of the offense of which [the defendant] is convicted." (Stats 1979, ch. 145, § 17, p. 341.)
Although section 667.5, subdivision (c)(8), permits an offense to be characterized as violent when a defendant is charged and proven to have inflicted great bodily injury under section 12022.7, by its own terms section 12022.7, is inapplicable to crimes in which great bodily injury is an element of the offense, except when domestic violence is involved. Accordingly, we agree with the Hawkins court that appellants conviction for battery with serious bodily injury (§§ 242/243, subd. (d)) could never be a violent felony under section 667.5 subdivision (c)(8).
As a result, we conclude that we must strike the three-year enhancement for the prison prior.
Abstract of Judgment
Appellant contends that the abstract of judgment incorrectly reflects that the five-year enhancement to his sentence was imposed pursuant to section 667.5, subdivision (a), and the stayed three-year enhancement was based on section 667, subdivision (a). Appellant asserts that regardless of whether or not this court strikes the enhancement for the prison prior, the abstract of judgment should be corrected to reflect the correct statutory basis. Respondent concedes the issue. We agree.
Generally, discrepancies between the judgment as orally pronounced and as entered are presumably the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
"It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases." (In re Candelario (1970) 3 Cal.3d 702, 705.) "The court may correct such errors on its own motion or upon application of the parties." (Ibid.)
"Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
This nunc pro tunc authority is limited to true clerical errors. "An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion." (In re Candelario, supra, 3 Cal.3d at p. 705.) "The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. " (Ibid.)
Here it appears the error in the abstract of judgment is true clerical error. The trial court imposed a five-year enhancement pursuant to section 667, subdivision (a). We will order the abstract of judgment corrected accordingly.
Disposition
The trial court is ordered to strike the great bodily injury enhancement attached to count one and the Penal Code section 667.5, subdivision (a) enhancement. The imposition of sentence on count one is stayed pursuant to Penal Code section 654. We order the abstract of judgment corrected to reflect that the court imposed the five-year enhancement pursuant to Penal Code section 667, subdivision (a). The trial court is directed to forward a certified copy of the amended abstract to the Department of Corrections. As so modified, the judgment of conviction is affirmed.
We Concur:
RUSHING, P. J.
PREMO, J.