Opinion
B297604
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DANIEL JIMENEZ, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Michael Katz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA109517) APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed as modified with directions. Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Anthony Daniel Jimenez appeals his conviction of premeditated attempted murder, arguing the trial court erroneously denied his request for an instruction on the lesser included offense of assault with a firearm. He also contends, and respondent concedes, that the one-year enhancement pursuant to Penal Code section 667.5 must be stricken. We modify the judgment to strike the enhancement, but otherwise affirm.
BACKGROUND
Defendant is a member of the Azusa 13 gang. On March 27, 2015, defendant and a gang associate confronted the victim and a friend, asking where they were from. Moments later, as the victim attempted to flee, defendant fired a shot, striking the victim on the nose.
Defendant was charged by information with attempted murder (Pen. Code, §§ 187, 664), firearm enhancements (§§ 12022.53, subds. (b), (c), (d)), gang allegations (§ 186.22, subd. (b)), and prior conviction and prison term allegations (§§ 667, 667.5, subd. (b), 1170.12). The jury convicted defendant of premeditated attempted murder, found the gang enhancements to be true, but found the firearm enhancements to be not true. The trial court found in a bifurcated trial after defendant waived a jury trial of the prior conviction allegations that they were true, including a prior strike conviction. The trial court sentenced defendant to an aggregate term of 36 years to life, consisting of 15 years to life for the attempted murder, doubled due to the strike prior, plus five years for the serious felony prior, and one year for the prior prison term pursuant to section 667.5, subdivision (b).
Defendant timely appealed.
DISCUSSION
1. Lesser Included Offense
Defendant contends the trial court erred by failing to instruct on the lesser offense of assault with a firearm. The trial court refused the requested instruction, after it concluded assault with a firearm is not a lesser included offense of attempted murder, and it did not become a lesser included offense because defendant was charged with firearm enhancements.
A trial court has a sua sponte duty to instruct on all necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) "[A] 'lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.' " (People v. Smith (2013) 57 Cal.4th 232, 240.) When applying the accusatory pleading test, a court considers whether the charging allegations describe the offense in such a way that, if committed as alleged, the lesser offense is necessarily committed. (People v. Alarcon (2012) 210 Cal.App.4th 432, 436 (Alarcon).)
It is well settled that assault with a firearm is not a lesser included offense of attempted murder. (People v. Parks (2004) 118 Cal.App.4th 1, 6.) Moreover, assault with a firearm does not become a lesser included offense of attempted murder when the accusatory pleading includes firearm allegations. (People v. Wolcott (1983) 34 Cal.3d 92, 98, 100-102 (Wolcott) [holding assault with a deadly weapon was not a lesser included offense of robbery, and the "addition of an allegation that defendant used a firearm . . . does not alter this conclusion"]; Alarcon, supra, 210 Cal.App.4th at pp. 436-439 [assault with a firearm not a lesser offense of attempted murder with firearm enhancement].)
In Wolcott, our Supreme Court explained that the inclusion of firearm allegations did not result in a new offense, but merely provided for additional punishment for an offense in which a firearm was used. (Wolcott, supra, 34 Cal.3d at p. 100.) The court reasoned that considering the enhancement allegation as part of the accusatory pleading for the purpose of defining a lesser included offense would "confuse the criminal trial." (Id. at p. 101.)
Defendant argues Wolcott was wrongly decided, or in the alternative, was overruled "sub rosa" by Apprendi v. New Jersey (2000) 530 U.S. 466, 494, footnote 19 (holding that any fact that increases punishment beyond the statutory maximum for the charged offense "is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict" and must be found true beyond a reasonable doubt by a jury). Defendant posits Wolcott's conclusion that the enhancement was not part of the substantive crime was wrong. This same argument was rejected in Alarcon, supra, 210 Cal.App.4th at pages 436, 438. We can discern no reason to depart from these well-reasoned precedents, and conclude the trial court properly refused to instruct on a lesser charge of assault with a firearm.
In any event, there is no possibility of prejudice, as the jury found the attempted murder was premediated, necessarily concluding that defendant intended to kill the victim. Therefore, failure to instruct on any lesser offense was harmless. (See People v. Beames (2007) 40 Cal.4th 907, 928.)
2. Enhancement
Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended Penal Code section 667.5, subdivision (b) to provide that a one-year prior prison term enhancement will apply only if a defendant served a prior prison term for a sexually violent offense. (See Stats. 2019, ch. 590, § 1.) There is no dispute that defendant's prison prior was not a sexually violent offense. Defendant argues, and respondent agrees, that his one-year prison enhancement must be stricken, and that remand for resentencing is not required as the trial court imposed the maximum possible sentence. (People v. Lara (2019) 6 Cal.5th 1128, 1134.) We agree and strike the one-year enhancement pursuant to Penal Code section 667.5.
DISPOSITION
The judgment is affirmed, as modified, to strike the one-year enhancement pursuant to Penal Code section 667.5. The superior court is directed to amend the abstract of judgment accordingly, and to send a certified copy to the Department of Corrections and Rehabilitation.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.