Opinion
E041222.
2-27-2009
THE PEOPLE, Plaintiff and Respondent, v. EARNEST LEE JONES, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
A jury found defendant and appellant Earnest Lee Jones guilty of attempted voluntary manslaughter (Pen. Code, §§ 664 and 192, subd. (a), count 1), assault with a semi-automatic firearm upon four different individuals (§ 245, subd. (b), counts 2, 4, 6, 7), attempted murder (§§ 664 and 187, count 3), and discharging a firearm at an occupied vehicle (§ 246, count 5). The jury also found true various enhancement allegations as to each count. The trial court sentenced defendant to a determinate prison term of 17 years, plus an indeterminate term of 32 years to life.
All further statutory references will be to the Penal Code unless otherwise noted.
Defendant filed his first appeal (People v. Ernest Lee Jones (Dec. 17, 2004, E034706 [nonpub. opn.] (E034706 opn.)) and contended the trial court failed to instruct the jury sua sponte with CALJIC No. 8.40, defining voluntary manslaughter. (E034706 opn. p. 4.) We affirmed the judgment but agreed with the People that the court had improperly struck or stayed the imposition of an enhancement under section 12022.53, subdivision (d), on count 5. (E034706 opn. p. 12.) We thus remanded the matter for resentencing. (E034706 opn. p. 13.) On remand, the trial court imposed the section 12022.53, subdivision (d) enhancement on count 5.
Defendant now appeals again, contending that: 1) at the resentencing hearing, the trial court erred by imposing a consecutive enhancement of 25 years to life under section 12022.53, subdivision (d), on count 5; 2) the court erred under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi ), in imposing the upper term as to count 6; and 3) on count 3, the court sentenced him to the indeterminate term of life with a minimum parole eligibility of seven years, but then improperly added the 25-year-to-life enhancement under section 12022.53, subdivision (d), for a total term of 32 years to life. We remand for resentencing on count 6. Otherwise, we affirm the judgment.
A petition for writ of habeas corpus (writ petition) was filed after the tentative opinion in this case was mailed out. An order was filed on September 10, 2008, stating that the writ petition would be considered with the appeal. The writ petition has been decided by a separate order to be filed on the same date as this opinion.
FACTUAL BACKGROUND
Ashley Boggs was driving her car, and Matthew Lopes (her boyfriend), Leander Tillman, and Lopess two-year-old nephew, J.C., were with her. Boggs was driving Lopes and Tillman to find defendant and 14-year-old F.C. Boggs wanted F.C. to apologize for choking her earlier that month. When Boggs found them, she stopped the car, and Lopes and Tillman got out. Tillman spoke with defendant, while Lopes confronted F.C. Lopes grabbed F.C.s shirt and shook him. Defendant tried to intervene, but Tillman told him to calm down and let Lopes and F.C. handle their dispute. After Lopes let F.C. go, F.C. started walking off. Lopes then saw defendant reach for his pocket. Believing defendant had a gun, Lopes told Boggs to open the trunk so he could find his baseball bat. While Lopes was looking in the trunk, Erica Aieulo grabbed Boggs by the hair and tried to pull her out of the car. Lopes grabbed Aieulos throat and told her to let go of Boggs. Defendant then fired a shot at Lopess head. Lopes released Aieulo and ran around Boggss car. Defendant followed him and fired more shots. One bullet hit the trunk of Boggss car and another struck Tillman, who was standing nearby. Lopes got in the car, and Boggs drove away. Defendant continued to shoot at Lopes and the car. (E034706 opn. pp. 2-3, 12.)
ANALYSIS
I. The Trial Court Properly Imposed the Consecutive 25-year-to-life Enhancement on Count 5, Under Section 12022.53, Subdivision (d)
Defendant contends the trial court erred by imposing a consecutive enhancement of 25 years to life under section 12022.53, subdivision (d), on count 5, because a concurrent sentence had been imposed on the underlying section 246 conviction. He claims a consecutive enhancement cannot attach to an underlying concurrent term. In other words, he argues that once the court decided to run the sentence on count 5 concurrently, it was required to run the section 12022.53, subdivision (d) enhancement concurrently also. We reject defendants claim.
A. Procedural Background
After he was initially sentenced, defendant filed an appeal with this court (People v. Ernest Lee Jones, supra, case No. E034706). The sole claim raised was that the trial court failed to sua sponte instruct the jury with CALJIC 8.40. (E034706 opn. pp. 4-6.) In their response brief and at oral argument, the People raised the issue that the trial court had improperly struck/stayed the section 12022.53, subdivision (d) enhancement on count 3. In this courts opinion, we noted the record did not show that the trial court struck/stayed the enhancement that accompanied count 3. Rather, the record showed that the court imposed and struck/stayed the section 12022.53, subdivision (d) enhancement on count 5, pursuant to section 12022.53, subdivision (f). We observed that the jury convicted defendant in count 5 of discharging a firearm at an occupied vehicle. (§ 246). The jury also found that defendant personally discharged a firearm, proximately causing great bodily injury to a person other than an accomplice, during the commission of count 5. Thus, we found that the requirements of the section 12022.53, subdivision (d) enhancement had been satisfied, and that subdivision (f) of section 12022.53 required the enhancement to be imposed. (E034706 opn. p. 9.) Pursuant to People v. Oates (2004) 32 Cal.4th 1048, 1068-1069 (Oates), we concluded that the trial courts decision to strike/stay the section 12022.53, subdivision (d) enhancement on count 5 constituted an unauthorized sentence. We therefore remanded for resentencing. (E034706 opn. p. 12.)
At the resentencing hearing, the trial court referred to Oates, as well as this courts findings in the opinion. The court then imposed the 25-year-to-life enhancements, under section 12022.53, subdivision (d), on defendants two qualifying convictions—for the attempted murder of Lopes in count 3, and for the discharge of a firearm at an occupied vehicle in count 5.
B. The Claim Is Forfeited
At the outset, we note that during the resentencing hearing, defendant did not object to the imposition of the consecutive enhancement imposed on count 5, even though he knew that the imposition of the enhancement was the sole reason for the remand. Thus, defendant has forfeited this claim on appeal. (See People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072.)
C. The Court Properly Imposed the Section 12022.5, Subdivision (d) Enhancement
In any case, defendants claim that the court could not impose a consecutive enhancement under section 12022.53, subdivision (d) on count 5, because the court imposed a concurrent sentence on the underlying conviction, is meritless. Section 12022.53, subdivision (d) provides: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." (Italics added.)
By its express terms, the section 12022.53 subdivision (d) enhancement applies "[n]otwithstanding any other provision of law" to anyone who, in the commission of a listed felony, "personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice . . . ." (§ 12022.53, subd. (d).) Nothing in section 12022.53 bars the enhancement from being attached and imposed on a count that the court has ordered to run concurrently to the principal term. Moreover, section 12022.53, subdivision (d) requires the enhancement to run consecutively. Defendant cites, and we find, nothing in the statutory language supporting his contrary interpretation.
For example, in Oates, the defendant fired two shots at a group of five people, but hit and injured only one. A jury convicted the defendant of five counts of attempted premeditated murder and found true section 12022.53 enhancement allegations as to all counts. (Oates, supra, 32 Cal.4th at p. 1052.) For the attempted murder convictions in counts 3, 4, and 5, the trial court imposed concurrent sentences and imposed section 12022.53, subdivision (d) enhancements on each count. (Oates, supra, at pp. 1053-1054.) One of the issues on appeal was whether section 12022.53 called for the imposition of multiple subdivision (d) enhancements based on a single injury. (Oates, supra, at pp. 1054-1055.) The California Supreme Court concluded that the imposition of multiple subdivision (d) enhancements was proper under those circumstances. (Oates, supra, at pp. 1053, 1057.) Although the court did not address the question of whether a court may impose a section 12202.53, subdivision (d) enhancement consecutively when it is attached to an underlying term that is concurrent, the court did conclude that the trial court properly imposed multiple section 12022.53, subdivision (d) enhancements, three of which were attached to concurrent underlying sentences. (Oates, supra, at pp. 1054, 1066.)
Defendant relies solely upon People v. Mustafaa (1994) 22 Cal.App.4th 1305 (Mustafaa) to support his position. However, this reliance is misplaced since Mustafaa concerned the imposition of a gun use enhancement under section 12022.5, subdivision (a), not the enhancement under section 12022.53, subdivision (d). (See Mustafaa, supra, at p. 1309.)
In sum, the court properly imposed the consecutive section 12202.53, subdivision (d) enhancement on count 5.
II. The Matter Is Remanded for Resentencing on Count 6
Citing Cunningham, Blakely, and Apprendi, defendant contends the imposition of the upper term on count 6 violated his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution because the court relied upon an aggravating factor which was not found true by the jury. We agree.
A. Background
During the first sentencing hearing, the court imposed the aggravated term on count 6, stating: "As to the other determinate terms, the principal term would be [c]ount 6, a [section] 245[,] [subdivision] (b), on [J.C.], who was a sitting duck strapped in his car seat. He was particularly vulnerable. He was age 3. He had absolutely no opportunity to defend himself. And the defendant in his statement showed absolutely no remorse and seemed to be totally self-concerned. [¶] So I would impose the upper term of nine years . . . ." In resentencing defendant following remand, the trial court again imposed the upper term as to count 6, citing the same reason: "[T]he principal determinate term will be [c]ount 6, the [section] 245[,] [subdivision] (b) on [J.C.], who was three years old at the time of the offense, and, as I said previously, he was essentially a sitting duck in the car strapped in the car seat. For that reason, he was particularly vulnerable."
B. Defendant Has Not Forfeited the Issue
The People contend that the Cunningham claim cannot be raised now, for the first time, because the remand following the first appeal was limited to the imposition of the 25-year-to-life enhancement in count 5. The People point out that, after remand with directions, the trial court has jurisdiction only to follow the directions of the appellate court, and it cannot modify or add to those directions. On remand, the trial court here properly reimposed the earlier terms and included the 25-year-to-life term under section 12022.53, subdivision (d) on count 5.
The People also argue that the issue has been forfeited because trial counsel failed to raise the issue during the May 12, 2005, resentencing hearing. We note that, after the court pronounced defendants sentence at the May 12, 2005, hearing, defendant asked his trial counsel why he was not objecting. The court stated to defense counsel that defendant appeared to want him to say something. Defense counsel said, "I think he wanted to address the Court personally." Defendant then stated, "Why didnt the parents come to the courtroom at my trial? I never seen [sic] a car seat in my transcripts. All the pictures I have, I never seen [sic] a baby seat in the back of that car." Although defense counsel did not articulate a Blakely argument, we consider defendants statements to the court sufficient to raise an objection.
C. The Courts Finding Did Not Satisfy Sixth Amendment Requirements
Defendants have a constitutional right to have the jury, not the trial judge, decide all facts increasing the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301.) In Cunningham, the United States Supreme Court held that Californias determinate sentencing law runs afoul of the Sixth and Fourteenth Amendments because it allows a judge to impose an upper term sentence based on facts found true by the judge rather than the jury. (Cunningham, supra, 127 S.Ct. at p. 860.) As the high court explained, "[T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]" (Ibid.) The California Supreme Court decided in People v. Black (2007) 41 Cal.4th 799, that "Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not `legally entitled to the middle term sentence, and the upper term sentence is the `statutory maximum." (Id. at p. 813, fn. omitted.)
Here, however, defendant did not have any prior felony convictions and the trial court did not rely on any facts admitted by defendant. The sole factor relied upon by the court in imposing the upper term was that J.C. was particularly vulnerable. We therefore conclude the trial court erred in imposing the upper term sentence for count 6 based on an aggravating factor not found by the jury. We further note that the court found J.C. particularly vulnerable because "he was essentially a sitting duck in the car strapped in the car seat." However, there does not appear to be any evidence to support that finding. The only apparent testimony on the subject of the car seat was from Lopes, who said he did not remember if J.C. was in a car seat or not.
Because the trial court imposed the upper term sentence based on a fact other than a prior conviction and the fact was not the result of a jury finding, we must strike the upper term sentence the court imposed on count 6 and remand this matter to the trial court for further proceedings.
III. The Court Properly Sentenced Defendant on Count 3
Defendant contends the trial court erred in sentencing him to life with the possibility of parole, with a minimum term of seven years, and then adding the 25-year-to-life term under section 12022.53, subdivision (d), for a total prison term of 32 years. He claims the seven-year minimum term was not a prison term, but rather "a minimum parole eligibility time." Since defendant "will have certainly served that [seven years] before he becomes eligible for parole in this case," under the 25-year-to-life enhancement, he argues the court should have struck the seven years from the total term. We disagree.
The punishment for attempted premeditated murder is "imprisonment in the state prison for life with the possibility of parole." (§ 664, subd. (a).) For the attempted premeditated murder in count 3, the court stated that it "carries a life with possibility of parole mandatory term, with a minimum term of seven years." It appears the court imposed the seven-year minimum based on section 3046, which provides that no one imprisoned under a life sentence may be paroled until he or she has served "at least seven calendar years." (§ 3046, subd. (a)(1).)
The Supreme Court has rejected the claim that the seven-year minimum was not a prison term. In People v. Jefferson (1999) 21 Cal.4th 86 (Jefferson), the court considered what term should be imposed on a defendant with one prior "strike" who is convicted of attempted premeditated murder. Section 667, subdivision (e)(1), provides that for a defendant with a prior strike, the "minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." (See Jefferson, supra, at p. 96.) The Jefferson defendants argued that "the sentence for attempted premeditated murder does not have a minimum term, because section 664, the relevant penalty provision, does not mention service of any minimum term, stating only that the punishment is `imprisonment in the state prison for life with the possibility of parole." (Ibid.) The court held, however, that "the minimum term for a defendant found guilty of attempted premeditated murder is found not in section 664 but in section 3046. The parole ineligibility period set by section 3046 is a minimum term within the sentence-doubling language of section 667[,] [subdivision] (e)(1)." (Ibid.)
Although this is not a "Three Strikes" case, Jeffersons holding— that the minimum term for attempted premeditated murder is seven years—applies equally here. Furthermore, since "[a] sentence enhancement is `an additional term of imprisonment added to the base term[,]" (Jefferson, supra, 21 Cal.4th at p. 101) the court properly added the 25-year-to-life enhancement under section 12022.53, subdivision (b), for a total term of 32 years.
Thus, the trial court properly imposed a term of 32 years to life on count 3.
DISPOSITION
The matter is remanded to the trial court for resentencing on count 6. In all other respects, the judgment is affirmed.
We concur:
RAMIREZ, P.J.
GAUT, J.