Opinion
G055801
10-10-2019
THE PEOPLE, Plaintiff and Respondent, v. LAURIENA PEARL SARABIA et al., Defendants and Appellants.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant, Lauriena Pearl Sarabia. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant, George Aceves. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos and Seth M. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12CF1568) OPINION Appeal from judgments of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed in part, reversed in part, and remanded. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant, Lauriena Pearl Sarabia. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant, George Aceves. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Lauriena Pearl Sarabia and George Aceves appeal from judgments after a jury convicted them of numerous offenses, including kidnapping to commit robbery, based on their participation in armed robberies. Sarabia argues the trial court erred by denying her motion for judgment of acquittal on the kidnapping to commit robbery count and there were errors in the court's sentence, minutes, and abstract of judgment. Aceves contends the following: insufficient evidence supported his kidnapping to commit robbery conviction; the court erred by admitting prior bad acts evidence and failing to give the jury a limiting instruction for the use of that evidence, or alternatively he received ineffective assistance of counsel; there was cumulative error; and Senate Bill (S.B.) 1393 requires we remand the matter for the trial court to exercise its discretion to strike his prior serious felony convictions.
We agree with Sarabia, as does the Attorney General, the trial court made several sentencing errors. Her other contention has no merit. We reverse Sarabia's sentence, and in all other respects affirm her judgment.
As to Aceves, we conditionally reverse and remand the matter for the limited purpose of resentencing him pursuant to Penal Code sections 667, subdivision (a), and 1385, subdivision (b), as amended by S.B. 1393. None of his other contentions have merit, and we affirm his judgment in all other respects.
FACTS
I. Substantive Facts A. V.L. (Counts 1 through 3)
Late one evening, V.L. drove his truck to Arcelia Camillo's apartment. V.L. and Camillo had known each other for a few months. When V.L. arrived, Camillo took him to her bedroom and left. She returned with Sarabia and a man who had a handgun. The man pointed the gun at V.L.'s face, while Sarabia told him to give her all his things. V.L. gave her his wallet, keys, and cell phone. Sarabia demanded his ATM card PIN, but he gave her a fake number. The group told V.L. to stay in the bedroom, and they left. When V.L. eventually left, he went outside and saw his truck was gone. V.L. walked to a restaurant and called his brother, who called the police.
Later that night, Sarabia called V.L.'s home. V.L. answered, and Sarabia told him to "'call off the police.'" When V.L.'s brother grabbed the phone from V.L., Sarabia hung up. She called again, and V.L.'s brother answered. Sarabia identified herself, admitted she took V.L.'s truck, and made a threat. B. F.C. (Counts 4 through 8)
The next day, Camillo called F.C. and said she needed money to pay for her motel room. F.C. drove his car to the motel. Camillo met F.C. in the parking lot, and he gave her the money. After Camillo paid for the motel, she told F.C. that she was alone and took him to the room. When they got to the room, Sarabia and a man were there. The motel room had a front living area with a bed and a separate bedroom with its own door. They played cards for about 30 minutes until someone knocked on the door, and Sarabia let in Aceves. Sarabia, Aceves, and the other man went into the bedroom and closed the door.
A few minutes later, Aceves came out of the bedroom and approached F.C. Aceves pulled out a knife, held it to F.C.'s stomach, and told him to lie face down on the floor. They removed his belt and used it to tie his hands behind his back while Aceves held the knife to F.C.'s stomach. After they pulled his pants down, they took his car keys, wallet, and cell phone.
They dragged F.C. by his feet into the back bedroom. The distance was about 16 feet. They closed the door and put a sheet over his head. Aceves held the knife to F.C.'s stomach and threatened him.
After Sarabia obtained F.C.'s ATM card personal identification number (PIN) from him, she went to withdraw money but returned and said the PIN did not work. F.C. again disclosed the number, and she left. Sarabia successfully withdrew $10. Meanwhile, Aceves continued holding F.C. at knifepoint and threatening him.
After Sarabia returned, Aceves cut the belt off F.C.'s hands, told him to stay there for 30 minutes, and threatened him. F.C. lay in the bedroom for about five minutes, got up, went outside, and saw his car driving away. He found a payphone and called the police.
Nine days later, police officers spotted F.C.'s car turn into a driveway and stop. Aceves was driving, and Sarabia in the passenger's seat. An officer arrested Sarabia, but Aceves fled into a house, where officers eventually found him.
In the days following the incident, F.C. identified Camillo, Sarabia, and Aceves from photographic lineups. Police officers collected DNA samples from beverage containers in the motel room. DNA tests revealed Sarabia and Camillo's DNA were present on some of these containers. Tests also revealed the presence of DNA belonging to two other men. But neither Aceves nor F.C.'s DNA were present in any of these samples.
Later, Sarabia told the police that she knew Camillo set up men to rob them. Sarabia admitted she was present during both the V.L. and F.C. robberies, but she denied witnessing or being involved in them. C. Procedural Facts
An amended information charged Sarabia and Camillo with the following: carjacking (Pen. Code, § 215, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1); first degree robbery in concert (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A)) (count 2); and unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 3).
The information charged Sarabia, Aceves, and Camillo with the following: kidnapping to commit robbery (§ 209, subd. (b)) (count 4); carjacking (§ 215, subd. (a)) (count 5); first degree robbery in concert (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A)) (count 6); criminal threats (§ 422) (count 7); and unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 8).
As to counts 1 and 2, the information alleged Sarabia and Camillo were armed with a firearm. (§ 12022, subd. (a)(1).) With respect to counts 4, 5, 6, 7, and 8, the information alleged Aceves personally used a deadly weapon. (§ 12022, subd. (b)(1).) The information alleged Aceves suffered eight prior strike convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), two prior prison terms (§ 667.5, subd. (b)), and two prior serious felony convictions (§ 667, subd. (a)(1)). Finally, the information alleged Sarabia suffered one prior prison term. (§ 667.5, subd. (b).) Before trial, Camillo pleaded guilty to counts 2 and 6.
At trial, F.C. identified Aceves and Sarabia as the people who robbed him at the motel and who he met the previous month. On direct examination, F.C. testified that about one month before the incident, he ate pizza with Camillo, Sarabia, and Aceves at an apartment. When the prosecutor asked how long Aceves stayed with them, F.C. replied, "Well, the fact is, I left because he took my phone away from me." Aceves's counsel objected on the grounds the reply was nonresponsive and moved to strike. The trial court sustained the objection and struck the answer. F.C. explained he, Camillo, and Sarabia were eating pizza in the living room when Aceves came out of a bedroom and F.C. stayed for a couple more minutes and left.
The next day on cross-examination, Aceves's counsel got F.C. to admit he never told the police about the pizza incident. F.C. said the first time he mentioned it was the prior week when he met with the prosecutor and his investigator. When counsel asked F.C. whether he thought the prior encounter was important, F.C. said he did not mention it "due to fear."
On redirect examination, the prosecutor asked F.C. what he meant by "fear." F.C. stated Aceves grabbed his cell phone and threatened to beat him up if he did not leave. Aceves gave the cell phone back, and F.C. left. Aceves's counsel did not object to this line of questioning.
On recross-examination, Aceves's counsel again questioned F.C. about not mentioning the pizza incident to anyone. At one point counsel asked him whether he ever told anyone "about somebody grabbing your phone, threatening you and telling you to get out of here." Counsel asked whether the man asked for F.C.'s cell phone, and F.C. stated he did not ask for the phone, "[h]e just took it from me." Counsel also suggested F.C.'s testimony concerning the incident was inconsistent.
After F.C. finished testifying, the prosecutor requested the trial court "reinstate" F.C.'s stricken testimony because the prosecutor was concerned the jury could conclude F.C. embellished his testimony overnight. Aceves's counsel objected, arguing the testimony was not relevant or responsive. The trial court and both defense counsel eventually agreed to stipulate F.C. had not mentioned the pizza incident before trial. The court indicated the parties should work on the stipulation and it would be entered later to not keep the jury waiting. It does not appear the parties offered such a stipulation.
At the close of the prosecution's case-in-chief, Aceves and Sarabia filed a motion for acquittal on count 4 pursuant to section 1118.1, which the court denied.
The court denied Sarabia's motion for acquittal on count 7. On the prosecution's motion, the court dismissed the deadly weapon enhancement as to count 8.
The jury convicted Sarabia of all eight counts and found true the firearm enhancements. The jury convicted Aceves of all five counts and found true the deadly weapon enhancements as to counts 4, 5, 6, and 7.
Sarabia filed a motion to reduce count 4 to robbery (§ 211), which Aceves joined, and a motion to dismiss count 4 pursuant to section 1385, both of which the prosecution opposed.
At the first sentencing hearing, the trial court continued Sarabia's sentencing. As to Aceves, on the prosecution's motion, the trial court dismissed two of the prior strike convictions. The court denied his motion to reduce count 4. Aceves admitted he suffered the remaining six strike convictions, two prior prison terms, and two serious felony convictions. In denying Aceves's motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court stated the following: "This was a violent criminal episode that resulted in lasting psychological injury, as evidenced by the victim's impact statement. [Aceves] had only recently been released from custody. [Aceves] has exhibited a disregard for the safety of others and has suffered numerous probation and parole violation[s]. Hence, the court declines to dismiss any of the prior convictions in the interest of justice, under [section] 1385 in Romero." The court concluded there were four aggravating circumstances. The court sentenced Aceves to 110 years to life in prison. Later, the court recalled Aceves's sentence.
At the second sentencing hearing, the trial court denied the motions to reduce and dismiss count 4. With respect to Sarabia, after the trial court granted the prosecution's motion to dismiss the prior prison term allegation, the court sentenced Sarabia to prison for five years on count 1 and one year for the firearm enhancement. The court imposed and stayed sentences on counts 2, 3, 5, and 6 (§ 654). The court sentenced Sarabia to life with the possibility of parole on count 4. The court imposed an eight month consecutive term on count 7. The court stated Sarabia was sentenced to prison for life plus six years and eight months. The court revised the sentence on count 4, stating the sentence was "life plus two years." The court stated Sarabia was sentenced to prison for life plus eight years and eight months. The court imposed a concurrent term of two years on count 8.
As to Aceves, the trial court incorporated its previous statements denying the Romero motion and the aggravating circumstances. The court sentenced Aceves to prison for 28 years plus 52 years to life as follows: 27 years to life on count 6; 25 years to life on count 7; six years on count 8; two years for deadly weapon enhancements; and 20 years for the prior serious felony enhancements. The court imposed and stayed the sentences on counts 4 and 5 and struck the sentences on the prior prison terms. In sentencing Aceves, the court imposed the upper term on counts 5, 6, and 8, and imposed consecutive sentences on counts 7 and 8.
DISCUSSION
I. Count 4
Aceves contends insufficient evidence supported his conviction on count 4. Sarabia, who joins in Aceves's arguments, argues the trial court erred by denying her section 1118.1 motion on count 4. Neither claim has merit.
"An appellate court reviews the denial of a section 1118.1 motion under the standard employed in reviewing the sufficiency of the evidence to support a conviction. [Citation.] 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] . . . [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.' [Citation.] Review of the denial of a section 1118.1 motion made at the close of a prosecutor's case-in-chief focuses on the state of the evidence as it stood at that point. [Citation.]" (People v. Houston (2012) 54 Cal.4th 1186, 1215.)
Section 209, subdivision (b)(1), criminalizes kidnapping for the purpose of robbery. A person commits aggravated kidnapping only "if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (§ 209, subd. (b)(2).)
"With regard to the first prong, the jury considers the 'scope and nature' of the movement, which includes the actual distance a victim is moved. [Citations.] There is, however, no minimum distance a defendant must move a victim to satisfy the first prong. [Citations.]" (People v. Vines (2011) 51 Cal.4th 830, 870 (Vines), overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.) "Measured distance, therefore, is a relevant factor, but one that must be considered in context, including the nature of the crime and its environment. In some cases a shorter distance may suffice in the presence of other factors, while in others a longer distance, in the absence of other circumstances, may be found insufficient." (People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez).)
"'"The second prong . . . refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased."' [Citations.]" (Vines, supra, 51 Cal.4th at p. 870.)
The two prongs are interrelated and require a "multifaceted, qualitative evaluation rather than a simple quantitative assessment." (Dominguez, supra, 39 Cal.4th at p. 1152.) Application of the two prongs depends on the totality of the particular facts and context of the case. (Id. at pp. 1152-1153.) A. Incidental?
Aceves and Sarabia rely on the following language from People v. Daniels (1969) 71 Cal.2d 1119 (Daniels), the leading case on the asportation requirement, to argue the movement of F.C. entirely inside the motel room was incidental to the robbery. In Daniels, the court stated the following: "[W]hen in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him -- whether it be a residence . . . or a place of business or other enclosure -- his conduct generally will not be deemed to constitute the offense proscribed by section 209. Movement across a room or from one room to another, in short, cannot reasonably be found to be asportation 'into another part of the same county.' [Citation.]" (Id. at p. 1140, italics added.) But Daniels did not hold movement within a premise can never support a finding of aggravated robbery.
Indeed, in Vines, supra, 51 Cal.4th at pages 870-871, where defendant moved the victim entirely inside a business, the Supreme Court affirmed defendant's conviction for aggravated kidnapping. Thus, Daniels does not carry the day for Aceves and Sarabia. (People v. James (2007) 148 Cal.App.4th 446, 456 (James) ["no rigid 'indoor-outdoor' rule by which moving a victim inside the premises in which he is found is never sufficient asportation for kidnapping for robbery while moving a victim from inside to outside (or the reverse) is always sufficient"].) But People v. Leavel (2012) 203 Cal.App.4th 823 (Leavel), is instructive.
In Leavel, the victim heard noises and came downstairs to find defendant in her kitchen. (Leavel, supra, 203 Cal.App.4th at pp. 826-827.) As the victim backed away, defendant assaulted and threatened her. (Id. at p. 827.) She gave him $70, and defendant looked in the purse and took her cellular telephone and cigarettes. (Ibid.) Defendant led the victim on a journey around the property, to the bedroom, where he rifled through her nightstand and found a gun, and to the kitchen, bathroom, office, outside, and back inside to the living room. (Ibid.) In rejecting defendant's assertion there was insufficient evidence to prove asportation, the Leavel court opined "the evidence supports a finding that [defendant's] forcible movement of [the victim] from the kitchen to her bedroom was unnecessary to facilitate a robbery." (Id. at p. 835.) The Leavel court reasoned, "[Defendant] had already taken her cell phone and $70 in cash from her purse. The bedroom contained no safe she was required to open, and he did not ask her where any of her belongings were located. Rather, on his own accord he rifled through her nightstand drawer and found a loaded gun." (Ibid.)
Here, viewing the evidence and drawing all inferences favorably to the verdict, Aceves's and Sarabia's movement of F.C. was not incidental to the commission of the robbery. Their movement of F.C. was not incidental to robbing him of his wallet, cell phone, and car keys because they took those items from him in the front living room before they dragged him to the bedroom. It is true Sarabia demanded his ATM card PIN after they moved him, but they did not need to take F.C. to the back bedroom to obtain his ATM card PIN. (James, supra, 148 Cal.App.4th at p. 455 [lack of necessity sufficient basis to conclude movement not merely incidental].) Like in Leavel, where the movement was unnecessary to commit the robbery and the movement occurred inside the house, the movement of F.C. from the front living room to the bedroom was unnecessary to robbing him because they had already taken his wallet, cell phone, and car keys before moving him.
Contrary to Sarabia's claim, the Attorney General does not concede the movement of F.C. "was incidental to stealing his ATM money." The Attorney General begins the sentence in question with the phrase, "even if." This was not a concession.
Aceves and Sarabia cite to a number of cases, without any discussion of each case, to support their claim the movement of F.C. was incidental to the robbery. In a few of these cases, the Supreme Court reversed defendants' aggravated robbery convictions in light of Daniels in summary fashion that do not alter our conclusion here. (People v. Morrison (1971) 4 Cal.3d 442, 443; People v. Smith (1971) 4 Cal.3d 426, 427; People v. Killean (1971) 4 Cal.3d 423, 424; People v. Adame (1971) 4 Cal.3d 417, 418.)
In other cases, defendant's movement of the victims was necessary to obtain the money. (People v. Mutch (1971) 4 Cal.3d 389, 397-399 [movement to safe]; People v. Williams (1970) 2 Cal.3d 894, 902-904 [facts concerning movement not fully developed but movement necessary to obtain property]; People v. Washington (2005) 127 Cal.App.4th 290, 295-303 [movement of bank employees from front counter to vault]; People v. Hoard (2002) 103 Cal.App.4th 599, 602-607 [movement of store employees "served only to facilitate the crime"]; People v. John (1983) 149 Cal.App.3d 798, 806 [movement "integral" part of robbery and burglary].) Again, here the movement was unnecessary to obtain property and was not incidental. B. Risk of Harm?
Substantial evidence also supports a finding Aceves's and Sarabia's movement of F.C. increased the risk of harm to him. First, moving F.C. from the front living area to the back bedroom decreased the likelihood of detection. Had they kept F.C. in the front living area it was possible that if one of the assailants opened the motel room door, someone could have seen F.C., or a passerby could have heard any commotion. Second, moving F.C. to the back bedroom increased the danger of a foreseeable escape attempt. Had F.C., who had his hands tied behind his back, tried to escape, he would have had to overcome his captors and navigate the bedroom door and the motel room door with a sheet over his head and his pants down. These obstacles would have severely impeded F.C.'s attempt to escape, and were more onerous than an escape attempt from the front living area. Finally, moving F.C. enhanced the attackers opportunity to commit additional crimes against F.C. Behind the closed bedroom door, Aceves held F.C. at knifepoint, and he could have stabbed or killed F.C. without anyone seeing or hearing what was happening. "'"The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased."' [Citations.]" (Vines, supra, 51 Cal.4th at p. 870.)
Sarabia's reliance on People v. Perkins (2016) 5 Cal.App.5th 454 (Perkins), is misplaced. In Perkins, defendant sodomized an 11-year-old victim in the apartment bathroom and took her to the bedroom, about 10 to 30 feet away,. (Id. at p. 460.) In the bedroom, defendant sodomized and had sexual intercourse with the victim. (Ibid.) The Perkins court stated the following: "The movement was for a short distance inside a small private residence from one room to another. We agree with Daniels's observation that movement from one room to another inside a small apartment, without a substantial increase in the risk of harm or other characteristic showing the movement to be a separate crime, does not constitute a movement 'into another part of the same county' that is not merely incidental to the underlying sex crime. [Citation.]" (Perkins, supra, 5 Cal.App.4th at p. 470.)
Here, although the movement was for a short distance from one room to another inside one location, distance is not determinative and the movement, which increased the risk of harm to F.C., was unnecessary to rob F.C. because they had already robbed him, and thus Perkins is inapposite. Sufficient evidence supports Aceves's and Sarabia's conviction for count 4. (Dominguez, supra, 39 Cal.4th at pp. 1152-1153 [application of two prongs depends on totality of unique facts of case].) II. Prior Bad Acts Evidence and Instruction & Ineffective Assistance of Counsel
Aceves asserts the trial court erred by admitting evidence that at the pizza incident Aceves took F.C.'s cell phone and threatened to beat him up because the evidence was improper character evidence (Evid. Code, § 1101, subd. (a)), and its admission violated his federal due process rights. He also claims the court erred by failing to instruct the jury sua sponte on the limited use of this evidence pursuant to CALCRIM No. 375.
As to admission of the evidence, preliminarily, we note the trial court sustained Aceves's objection and struck F.C.'s initial statement he left the apartment because Aceves took his cell phone from him. If a trial court strikes testimony, the jury must disregard the testimony and not consider it for any purpose. (People v. Horton (1995) 11 Cal.4th 1068, 1121.) On redirect examination, F.C. testified concerning his fear, in response to Aceves's counsel's question on cross-examination. A failure to object to evidence on the grounds asserted on appeal forfeits the claim. (People v. Cage (2015) 62 Cal.4th 256, 287.) Aceves concedes his defense counsel did not object to admission of this evidence pursuant to Evidence Code sections 1101 and 352 or on federal due process grounds. Thus, his claim the trial court erred by admitting this evidence is forfeited. We note not only did counsel not object, counsel continued to question F.C. about the pizza incident on recross-examination, in an attempt to impeach his credibility.
With respect to a limiting instruction, Aceves again concedes his defense counsel did not request the trial court instruct the jury with CALCRIM No. 375, or any other limiting instruction. A trial court has no sua sponte duty to instruct on prior acts evidence, CALCRIM No. 375, except in the "extraordinary case" where the prior acts evidence was "a dominant part of the evidence against the accused[]" and minimally relevant and highly prejudicial. (People v. Collie (1981) 30 Cal.3d 43, 64.) Aceves claims the evidence was minimally relevant and highly prejudicial, but he does not assert the evidence was a dominant part of the prosecution's case. It was not. This evidence was of minor, if any significance, to the prosecutor's case. The dominant part of the prosecution's case was F.C.'s extensive testimony about the motel incident. Thus, the court did not have a sua sponte duty to instruct the jury with CALCRIM No. 375, and because Aceves's counsel did not request that instruction, or any limiting instruction, his claim is forfeited.
Aceves alternatively asserts that if we conclude his claims are forfeited his counsel was prejudicially ineffective. We will address his claims in that context.
To prevail on an ineffective assistance of counsel claim, appellant "must prove '"that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant."' [Citation.] '"A reasonable probability is a probability sufficient to undermine confidence in the outcome."' [Citation.] If a claim of ineffective assistance of counsel can be determined on the ground of lack of prejudice, a court need not decide whether counsel's performance was deficient. [Citations.]" (In re Crew (2011) 52 Cal.4th 126, 150.) A failure to object to evidence or argument rarely establishes ineffective assistance of counsel. (People v. Centeno (2014) 60 Cal.4th 659, 676.)
Here, Aceves was not prejudiced because it was not reasonably probable he would have received a more favorable result either had the court excluded the evidence or given the jury a limiting instruction. Contrary to Aceves's claim otherwise, the evidence against him was strong. Although Aceves's DNA was not found in the motel room, F.C. identified Aceves as the person who robbed him and held the knife to his stomach within days of the incident and at trial. And nine days after the incident, police officers caught Aceves driving F.C.'s car; Sarabia was the passenger. Therefore, even if defense counsel had objected and the trial court had excluded the evidence, or given the jury a limiting instruction, we cannot conclude there was a reasonable probability the result of the proceeding would have been different.
Aceves asserts the cumulative effect of these errors was prejudicial. "'Under the cumulative error doctrine, the reviewing court must "review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence."' [Citation.] 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial."' [Citation.]" (People v. Mireles (2018) 21 Cal.App.5th 237, 249.) We have concluded it was not reasonably probable the result of the proceeding would have been different. Based on our review of the record, Aceves received due process and a fair trial, and his cumulative error claim is meritless. III. Aceves's Sentence
Aceves argues S.B. 1393's recent amendments of sections 667, subdivision (a), and 1385, subdivision (b), apply retroactively and we must remand the matter for the trial court to exercise its discretion pursuant to these provisions. The Attorney General agrees that because this case was not final before S.B. 1393's effective date, January 1, 2019, the law applies retroactively to Aceves. The Attorney General adds, however, remand is unnecessary because the trial court's comments at sentencing made it clear it would not strike the five-year term on the prior serious felony convictions.
Under the versions of sections 667, subdivision (a), and 1385, subdivision (b), effective until December 31, 2018, courts were required to impose a five-year consecutive term for "[a]ny person convicted of a serious felony who previously has been convicted of a serious felony" (§ 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667" (§ 1385, subd. (b)). On September 30, 2018, the Governor signed S.B. 1393 which, effective January 1, 2019, amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court to exercise its discretion to strike or dismiss for sentencing purposes a prior serious felony conviction. (Stats. 2018, ch. 1013, §§ 1-2.) S.B. 1393 applies retroactively. (In re Estrada (1965) 63 Cal.2d 740, 745; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308; People v. Garcia (2018) 28 Cal.App.5th 961, 971-973.)
"We begin by discussing the general standard for assessing when a remand is required for a trial court to exercise sentencing discretion. '[W]hen the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.' [Citation.] But if '"the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required."' [Citation.]" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
Here, we conclude the trial court would not have exercised its discretion to strike the section 667, subdivision (a)(1), enhancements even if it believed it could do so. In Aceves's Romero motion, the trial court explained Aceves had just been released from custody when he committed a violent crime that resulted in lasting psychological injury to F.C. Although the court struck the prior prison term enhancements (§ 667.5, subd. (b)), the court detailed the aggravating circumstances and reasons for imposing consecutive sentences. The court imposed upper term sentences on three of the counts, indicating its intent to impose a maximum sentence. Additionally, the court could have imposed a concurrent sentence on count 8 but it imposed a consecutive sentence. Thus, the record indicates the court would not exercise its discretion to strike the two prior serious felony convictions.
Out of an abundance of caution though, we remand the matter to the trial court for the limited purpose of addressing the applicability of S.B. 1393. We conditionally reverse the judgment and remand the matter for the trial court to exercise its discretion pursuant to sections 667, subdivision (a), and 1385, subdivision (b). IV. Sarabia's Sentence
Sarabia contends the minute order and abstract of judgment on count 1 must be corrected because they conflict with the court's oral pronouncement of judgment. The Attorney General agrees, and adds the court's oral pronouncement of judgment is unclear because the court initially sentenced her to life plus six years and eight months and then sentenced her to life plus eight years and eight months. The Attorney General, and Sarabia in reply, assert it is unclear where these two years came from.
The trial court sentenced Sarabia to prison for five years on count 1 and one year for count 1's firearm enhancement. However, the court's minutes and abstract of judgment state the court's sentence on count 1 was 12 years.
Section 12022, subdivision (a)(1), provides for an additional one-year term in prison for a person armed with a firearm in the commission of a felony. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The minute order and abstract of judgment must be corrected to reflect Sarabia's correct sentence on count 1.
The trial court's oral pronouncement of judgment suggests the additional two years corresponded to the court's sentence on count 4. The court initially sentenced Sarabia to life with the possibility of parole on count 4. A little later the court revised the sentence on count 4, stating "life plus two years."
We agree the basis for these two years is unclear. Again, the court's oral pronouncement of judgment controls and because the court's comments were inconsistent, and we cannot be certain of the basis for the additional two years, we may not correct it. (People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295 [appellate courts inherent power to correct erroneous sentence if oral pronouncement contrary to court's intention].) As neither the Attorney General nor Sarabia object to remand, we order the matter remanded for the trial court to clarify the basis of its sentence on count 4.
DISPOSITION
As to Sarabia, we reverse her sentence on count 4 and remand the matter for the trial court to resentence her on that count. After resentencing, the clerk of the superior court is ordered to prepare a new abstract of judgment for Sarabia's indeterminate sentence and forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. The clerk of the superior court is also ordered to prepare a new abstract of judgment for Sarabia's determinate sentence reflecting the trial court sentenced her to prison for five years on count 1 and one year for the corresponding firearm enhancement and forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, we affirm Sarabia's judgment.
With respect to Aceves, we conditionally reverse his sentence and remand the matter to the trial court for resentencing with directions to the trial court to exercise its new discretion to determine whether to strike his five-year enhancements, imposed pursuant to section 667, subdivision (a)(1). We express no opinion on how the trial court should exercise its discretion. In all other respects, Aceves's judgment is affirmed.
O'LEARY, P. J. WE CONCUR: ARONSON, J. IKOLA, J.