Opinion
F073682
04-27-2018
THE PEOPLE, Plaintiff and Respondent, v. JOEL VARGAS, Defendant and Appellant.
John F. Schuck under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DF012197A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. John F. Schuck under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
INTRODUCTION
Following a trial by jury, defendant Joel Vargas was convicted of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) (count 1), possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 2), carrying a loaded firearm in public as an active participant in a criminal street gang (§ 25850, subd. (c)(3)) (count 3), and active participation in a criminal street gang (§ 186.22, subd. (a)) (count 4). The jury also found true the gang enhancement allegation attached to count 1 (§ 186.22, subd. (b)(1)); that defendant used a firearm within the meaning of section 667, subdivision (e)(2)(C)(iii), as to count 2; and the enhancement allegations for personal use of a firearm attached to counts 1 and 4 (§ 12022.5, subd. (a)).
All further statutory references are to the Penal Code.
Effective June 27, 2017, section 29800 was amended to extend application of subdivision (a)(1) to persons with an outstanding felony warrant. (Legis. Counsel's Dig., Assem. Bill No. 103, approved by Governor, June 27, 2017 (2017-2018 Reg. Sess.) § 44.)
Defendant's trial counsel entered a waiver of trial by jury on the prior conviction allegations (§ 1025, subd. (b)) and, in a bifurcated proceeding, the trial court found true that defendant suffered a prior juvenile conviction for assault with a firearm (§ 245, subd. (a)(2)) within the meaning of the Three Strikes law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and served two prior prison terms (§ 667.5, subd. (b)).
The trial court also found true that defendant suffered a separate prior conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) within the meaning of section 667, subdivisions (a) and (e). However, upon realizing defendant's conviction did not qualify as a strike because he pled guilty to assault by means of force likely to cause great bodily injury rather than assault with a deadly weapon, the court vacated its true finding and granted the prosecutor's motion to strike the allegation.
The trial court sentenced defendant to the upper term of nine years on count 1, doubled to 18 years for the prior strike conviction, plus additional consecutive terms of four years for the gang enhancement, four years for personal use of a firearm, and two years for serving two prior prison terms, for a total determinate prison term of 28 years. On counts 2 and 3, the court imposed the upper term of three years for each, doubled to six years for the prior strike conviction, plus additional consecutive terms of two years for serving two prior prison terms, stayed pursuant to section 654. On count 4, the court imposed the upper term of three years, doubled to six years for the prior strike conviction, plus additional consecutive terms of four years for the personal use of a firearm and two years for serving two prior prison terms, stayed under section 654.
On appeal, defendant claims the jury was not presented with any evidence that he suffered a prior serious or violent felony conviction and, therefore, its finding that he used a firearm within the meaning of section 667, subdivision (e)(2)(C)(iii), must be reversed as unsupported by substantial evidence. He also claims the trial court's findings on the prior conviction allegations must be reversed because his waiver of the statutory right to a jury trial on the issue was not knowing, voluntary and intelligent. Finally, via supplemental briefing, defendant requests remand of this matter in light of the recent amendment to section 12022.5, subdivision (c), effective January 1, 2018, which permits the trial court, in the interest of justice, to strike or dismiss an enhancement otherwise required to be imposed under the statute. (Sen. Bill No. 620, approved by Governor Oct. 11, 2017 (2017-2018 Reg. Sess.) § 1.)
The People dispute defendant's entitlement to any of the relief sought, but they note the trial court erred in applying the prior prison term enhancement under section 667.5, subdivision (b), to each count rather than to the aggregate sentence. On this latter point, defendant agrees and requests the enhancements be stricken as to counts 2 through 4.
We reject defendant's characterization of the jury's determination as involving prior convictions for serious or violent felonies and find the determination made—that defendant used a firearm during the commission of the offense—is supported by substantial evidence. Further, we find defendant forfeited his claim that his jury trial waiver on the prior conviction allegations was invalid because he failed to object during trial; but in any event, the claim of error lacks merit and any arguable error is harmless. We agree with the parties that the trial court erred in applying the prior prison term enhancements to each count rather than to the aggregate sentence and order the enhancements attached to counts 2 through 4 stricken. Finally, we agree with defendant that this matter should be remanded in light of the amendment to section 12022.5, subdivision (c), to allow the court to consider whether to exercise its discretion to strike the firearm enhancement attached to counts 1 and 4.
FACTUAL SUMMARY
Resolution of the claims raised in this appeal do not require recitation of the underlying facts and, therefore, we only briefly summarize the incident underlying the convictions in this case.
Late one night, the victim in this case picked his girlfriend up from work and drove her back to his house. After he parked, defendant Joel Vargas and another man, both of whom were active members of the Myfas criminal street gang, approached the victim's car and demanded to know if he was GQ. The victim told the men he was not GQ and they had the wrong person. Defendant pulled a small handgun from under his shirt and continued to ask the victim if he was GQ from Delano. The victim told defendant he was not GQ and he had lived in McFarland his entire life, but defendant became aggravated. He pointed his gun within six inches of the victim's head and racked the slide.
Eventually, defendant's companion realized he knew the victim's sister and concluded they had the wrong man. After convincing defendant, the two men left. Before leaving, defendant told the victim, "I'm going to catch you on the next one." The victim again said he was not GQ and defendant repeated, "No, I'm going to catch you on the next one."
Shortly thereafter, the victim contacted the police. Defendant and his companion were located and arrested. Police searched the area where defendant was seen tossing something shiny and recovered a .25-caliber semiautomatic handgun.
DISCUSSION
I. Challenge to Jury's Section 667 , Subdivision (e)(2)(C)(iii), Finding
A. Background
Relevant to defendant's first claim, "[u]nder the 'Three Strikes' law as originally enacted in 1994, an individual convicted of any felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. (Pen. Code, former §§ 667, subds. (b)-(i), 1170.12, subd. (c)(2).) In 2012, the electorate passed the Three Strikes Reform Act of 2012 (Reform Act or Act) (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)), which amended the law to reduce the punishment prescribed for certain third strike defendants.... [¶] ... [¶]
"The Reform Act changed the sentence prescribed for a third strike defendant whose current offense is not a serious or violent felony. [Citation.] Under the Reform Act's revised penalty provisions, many third strike defendants are excepted from the provision imposing an indeterminate life sentence (see Pen.Code, § 1170.12, subd. (c)(2)(A)) and are instead sentenced in the same way as second strike defendants (see id., subd. (c)(2)(C)): that is, they receive a term equal to 'twice the term otherwise provided as punishment for the current felony conviction' (id., subd. (c)(1))." (People v. Conley (2016) 63 Cal.4th 646, 651-653; accord, People v. Frierson (2017) 4 Cal.5th 225, 230-231.) There are certain circumstances, however, which disqualify a defendant from this ameliorative change. (People v. Conley, supra, at p. 653; accord, People v. Frierson, supra, at p. 231.)
One of those disqualifying circumstances is set forth in subdivision (e)(2)(C)(iii) of section 667: "If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e) unless the prosecution pleads and proves ... [that] [d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." Thus, in alleging defendant used a firearm during the commission of count 2, the prosecutor sought to plead and prove a factor that would disqualify defendant from the ameliorative change under the Reform Act and permit him to be sentenced as a third strike defendant. (People v. Frierson, supra, 4 Cal.5th at pp. 234-235.)
B. Substantial Evidence Supports Finding Defendant Used a Firearm
Related to count 2, the jury found true that defendant used a firearm at the time of the commission of the offense within the meaning of section 667, subdivision (e)(2)(C)(iii). We agree with defendant that the jury's finding must be supported by substantial evidence, but we disagree with his characterization of the jury's determination in this instance. As the People contend, the jury was tasked only with determining whether defendant used a firearm at the time of the commission of count 2, and defendant does not challenge the sufficiency of the evidence on this point. Because the jury was not required to determine whether defendant had two or more serious or violent felonies within the meaning of section 667, subdivision (e)(2)(C), his substantial evidence challenge to the finding on the ground fails and we reject his claim.
Given our rejection of defendant's claim on the ground identified, we need not address the People's alternative argument that because defendant did not have two or more prior serious and/or violent felony convictions, the jury's finding on the disqualifying factor was of no consequence. We observe, however, the absence of any citation to authority for this proposition. The statute at issue has a pleading and proof requirement and, as stated recently by the California Supreme Court, "If the prosecution wishes to have a third strike sentence imposed, it must indicate what circumstance makes a defendant subject to an indeterminate sentence and prove that circumstance beyond a reasonable doubt at trial." (People v. Frierson, supra, 4 Cal.5th at p. 238.) We know of no authority for the proposition that a defendant lacks entitlement to relief from a jury finding on which the People bear the burden of proof and which is unsupported by substantial evidence on the basis that the finding was ultimately of no consequence to his sentence. (See id. at p. 234, citing In re Winship (1970) 397 U.S. 358, 361-364.)
II. Waiver of Statutory Jury Trial Right on Prior Conviction Allegations
Under California law, "[a] defendant ... [has] a statutory right to a jury trial on 'the question of whether or not the defendant has suffered the prior conviction' - though not 'whether the defendant is the person who has suffered the prior conviction.'" (People v. Gallardo (2017) 4 Cal.5th 120, 125, quoting § 1025, subds. (b) & (c); accord, People v. Epps (2001) 25 Cal.4th 19, 29.) Defendant, through counsel, waived a jury trial on the fact of his prior convictions. He now claims the trial court failed to obtain an express, personal waiver of this statutory right from him and his waiver through counsel was not knowing, voluntary and intelligent, entitling him to reversal of the court's findings.
After briefing was complete in this case, the California Supreme Court disapproved People v. McGee (2006) 38 Cal.4th 682 to the extent it "authorizes trial courts to make findings about the conduct that 'realistically' gave rise to a defendant's prior conviction. The trial court's role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in 'judicial factfinding beyond the recognition of a prior conviction.'" (People v. Gallardo, supra, 4 Cal.5th at p. 134, quoting Descamps v. United States (2013) 570 U.S. 254, 269 [133 S.Ct. 2276, 2288].) In this case, the trial court did not stray beyond determining the fact of defendant's prior convictions and he does not advance any claim to the contrary.
As an initial matter, the People argue defendant forfeited his claim by failing to object during trial. Defendant's contention that the forfeiture rule does not apply here because "the improper waiver of rights was obtained before the jury was discharged" is unpersuasive. The California Supreme Court has held "the deprivation of the statutory right to jury trial on the prior prison term allegations does not implicate the state or federal constitutional right to jury trial. Absent an objection to the discharge of the jury or commencement of court trial, [the] defendant is precluded from asserting on appeal a claim of ineffectual waiver of the statutory right to jury trial of prior prison term allegations." (People v. Vera (1997) 15 Cal.4th 269, 278, italics added; accord, People v. Grimes (2016) 1 Cal.5th 698, 738; see People v. Gallardo, supra, 4 Cal.5th at p. 127; People v. Cross (2015) 61 Cal.4th 164, 172.) Thus, the forfeiture doctrine is applicable.
The California Supreme Court decided People v. Vera, supra, 15 Cal.4th 269 several years before the United States Supreme Court issued its opinion in Apprendi v. New Jersey (2000) 530 U.S. 466. In People v. French (2008) 43 Cal.4th 36, 47, the California Supreme Court clarified, "Although we held in [People v.] Vera that the defendant had forfeited his statutory right to a jury trial on prior-prison-term allegations by failing to object, we clearly implied that an express waiver would have been required if the right to a jury trial on those allegations had been based upon the state or federal Constitution." As previously stated, the claim in this appeal is limited to defendant's waiver of his statutory right to a jury trial.
Notwithstanding forfeiture of the claim, however, we are also unpersuaded by defendant's contention that his waiver of a jury trial on the fact of his prior convictions had to be express and personal. In People v. Vera, the court recognized that "[w]hen the defendant seeks to bifurcate the determination of the truth of the prior conviction allegation from determination of the defendant's guilt of the charged crimes, ... only the statutory right to jury trial is implicated in the trial of the sentencing allegations. Since there is no constitutional right to have the jury determine the truth of a prior conviction allegation [citation], it follows that the failure to obtain an express, personal waiver of the right to jury trial of prior conviction allegations does not constitute a violation of the state constitutional mandate." (People v. Vera, supra, 15 Cal.4th at p. 277; accord, People v. Cross, supra, 61 Cal.4th at pp. 172-173; People v. French, supra, 43 Cal.4th at pp. 46-47; People v. Thomas (2001) 91 Cal.App.4th 212, 223.) The cases cited by defendant for the proposition that the trial court was required to secure an express, personal waiver from him involved not waiver of a jury trial in favor of a bench trial on the fact of a prior conviction, but the admission of prior conviction allegations and jury trial waivers relating to the guilt phase. (E.g., People v. Mosby (2004) 33 Cal.4th 353, 359-360 [admission of prior conviction allegation]; People v. Lloyd (2015) 236 Cal.App.4th 49, 52-53, 56-60 [admission of prior conviction allegations]; People v. Sifuentes (2011) 195 Cal.App.4th 1410. 1420 [admission of prior conviction allegations]; People v. Traugott (2010) 184 Cal.App.4th 492, 500 [waiver of trial by 12-person jury on guilt]; People v. Smith (2003) 110 Cal.App.4th 492, 500 [waiver of jury trial on guilt].) Thus, those cases are not authority for the proposition advanced on appeal. Defendant does not claim the court trial itself was unfair (People v. Cross, supra, at pp. 172-173), and given the absence of a claim arising from violation of a constitutional right under state or federal law, the trial court was not required to secure an express, personal waiver from defendant (People v. Vera, supra, at p. 277). Trial counsel's waiver of the statutory right to a jury trial, entered on behalf of defendant and a discussion with him, sufficed. (Ibid.)
Defendant's claim is premised on the court's failure to obtain an express waiver from him personally. Defendant does not dispute that trial counsel entered a waiver on his behalf and, in doing so, she stated she had discussed the issue with him. --------
Finally, even if we assume error for the sake of argument, we agree with the People that no prejudice resulted. In his reply brief, defendant argues the error was not harmless because "the certified records are confusing and a jury may not have been able to discern whether [he] had actually suffered the prior [conviction]" lacks merit. This assertion lacks merit.
As we have stated, the finding in this case was limited to the fact of defendant's prior convictions. We do not agree the certified records are confusing on their face, but had defendant elected to have the jury decide the fact of the prior conviction allegations, both parties would have had the opportunity to address the contents of the documents. An error under state law, such as is asserted here, is evaluated under the test articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson) and, applying Watson, "it is [simply] not 'reasonably probable that a result more favorable [to defendant] would have been reached' ([id.] at p. 836) if the jury, instead of the court, had determined that defendant 'suffered' (Pen. Code, § 1025) the prior convictions." (People v. Epps, supra, 25 Cal.4th at p. 29; see People v. Blackburn (2015) 61 Cal.4th 1113, 1135-1136.)
Accordingly, in sum, defendant forfeited his claim of error as to the statutory waiver of his right to a trial by jury on the prior conviction allegations, but regardless, the trial court was not required to secure an express, personal waiver of the right, as defendant contends, and any error was harmless.
III. Application of Prior Prison Term Enhancements to Each Count
Next, the People point out that the trial court erred in applying the prior prison term enhancements to each count rather than to the aggregate sentence and the enhancements should therefore be stricken as to counts 2 through 4. (§ 667.5, subd. (b).) Defendant agrees.
Regarding determinate sentences such as at issue in this case, it is settled that sentencing enhancements for prior prison terms, which go to the nature of the offender rather than the nature of the offense, do not attach to particular counts. (People v. Smith (1992) 10 Cal.App.4th 178, 182; accord, People v. Sasser (2015) 61 Cal.4th 1, 15-17; People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401-402; see People v. Garcia (2008) 167 Cal.App.4th 1550, 1559-1560.) The California Supreme Court has explained, "[S]ection 1170.1[, which is part of California's determinate sentencing law,] draws an important distinction between offense-based enhancements, which apply to every relevant count, and status-based enhancements, which apply only once. [Citation.] According to section 1170.1[, subdivision ](a), the aggregate term of imprisonment 'shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions ....' This structure 'makes it very clear that enhancements for prior convictions do not attach to particular counts but instead are added just once as the final step in computing the total sentence.'" (People v. Sasser, supra, at p. 15, quoting People v. Tassell, supra, at p. 90; accord, People v. Smith, supra, at pp. 182-183.) Thus, the trial court erred in imposing prior prison term enhancements under section 667.5, subdivision (b), as to each count. The two prior prison term enhancements must be stricken as attached to each count and instead applied to defendant's overall sentence, without reference to any particular count. (People v. Sasser, supra, at pp. 15, 17.) IV. Recent Amendment to Section 12022.5 , Subdivision (a)
Finally, effective January 18, 2018, amendments to section 12022.5, subdivision (c), and section 12022.53, subdivision (h), permit the trial court, in the interest of justice, to strike or dismiss an enhancement otherwise required to be imposed under those statutes. (Sen. Bill No. 620, approved by Governor Oct. 11, 2017 (2017-2018 Reg. Sess.) §§ 1, 2.) While the facts of this case and the trial court's sentencing decisions do not suggest it would strike the firearm enhancements at issue here if it had discretion to do so at the time, we do not agree that there is no purpose to remanding this case, as the People contend.
The People rely solely on People v. Gutierrez (1996) 48 Cal.App.4th 1894 to support their argument; but, in that case, the trial court clearly expressed that it did not find "'any good cause to strike'" the prior conviction at issue and "'a lot of reasons not to,'" concluding that the appellant was "'the kind of individual the law was intended to keep off the street as long as possible.'" (Id. at p. 1896.) Moreover, the California Supreme Court has stated, "'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Brown (2007) 147 Cal.App.4th 1213, 1228; People v. McDaniels (Apr. 17, 2018, A149015) ___ Cal.App.5th ___ [2018 Cal.App. Lexis 346, 12]; contra, People v. Almanza (Apr. 9, 2018, B270903) ___ Cal.App.5th ___ [2018 Cal.App. Lexis 297, 9].)
Senate Bill No. 620 changed the law to give trial courts discretion to strike the firearm enhancement in the interest of justice. The court sentenced defendant without the benefit of this discretion and we conclude the trial court should be provided the opportunity to exercise that discretion in the first instance. Therefore, remand for resentencing is appropriate.
DISPOSITION
The judgment is modified as follows: The two one-year prior prison term enhancements imposed on counts 1 through 4 are stricken and the two enhancements are imposed without reference to any particular count. Further, the matter is remanded to the trial court to exercise its discretion under Penal Code section 12022.5, subdivision (c), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 1, eff. Jan. 1, 2018) and, if appropriate, following exercise of that discretion, to resentence defendant accordingly. The judgment is otherwise affirmed. If the trial court declines to exercise its discretion to strike the firearm enhancement attached to counts 1 and 4, the trial court is directed to prepare an amended abstract of judgment reflecting the order striking the two prior prison term enhancements as attached to individual counts and applying the two one-year enhancements to the overall sentence, and to forward copies to the appropriate entities.