Opinion
F072736
02-21-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANK VASQUEZ, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PCF310023)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Glade F. Roper, Judge. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Following a jury trial in which appellant Frank Vasquez represented himself, the jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a); count 1) for the shooting death of Juan Carlos Ibarra. The jury also found him guilty of second degree robbery (§ 211; count 2) and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 5). The jury found true that the first degree murder was committed during the commission of the robbery (§ 190.2, subd. (a)(17)(A)), and it found true that appellant personally and intentionally discharged a firearm during these crimes (§ 12022.53, subd. (d)). The jury, however, acquitted appellant of attempted robbery (§§ 211/664; count 3).
All future statutory references are to the Penal Code unless otherwise noted.
Prior to the jury's deliberations, count 4 was dismissed. This count had alleged the attempted robbery of another man present at Ibarra's murder.
In count 1, appellant was sentenced to life in prison without the possibility of parole (LWOP) for the murder, plus an additional aggregate term of 32 years to life. In count 2, the trial court imposed an aggregate consecutive prison term of 17 years plus 25 years to life for the robbery. Finally, in count 5, the court imposed an aggregate term of eight years for being a felon in possession, and this sentence was stayed pursuant to section 654. The court imposed various fines and fees, including a parole revocation restitution fine pursuant to section 1202.45 (the parole fine).
On appeal, appellant raises numerous issues. He argues that his waiver of his right to counsel was not voluntary. He also raises various claims of instructional error. He further contends that his sentence on the robbery conviction should have been stayed under section 654. He claims the parole fine was improperly imposed. We reject these contentions.
However, the parties agree, as do we, that other sentencing errors occurred. The prosecution alleged certain prior strike, prior serious felony, and prior prison term enhancements in counts 1, 2 and 5. The trial court used these enhancements at sentencing to increase appellant's prison terms. These enhancements, however, were neither proven nor established in the lower court. Further, the parties agree, as do we, that the trial court improperly imposed prior prison term enhancements in both determinate counts. Because of these errors, we vacate the sentences on counts 1, 2 and 5, and we remand for resentencing. Upon remand, the prosecution may, if it so elects, attempt to prove the sentence enhancements alleged in counts 1, 2 and 5.
Prior to trial, the trial court conducted an in camera review of records following appellant's subpoena duces tecum served on the Tulare County Sheriff's Department. The parties agree that we should independently review the in camera proceeding to determine if the trial court properly ordered all discovery to which appellant was entitled. We find no error in this regard.
Finally, Senate Bill No. 620 recently amended section 12022.53. This amendment permits the superior court to strike or dismiss a firearm enhancement at sentencing that is otherwise required to be imposed. (§ 12022.53, subd. (h).) This amendment expressly applies "to any resentencing that may occur pursuant to any other law." (Ibid.) Because this matter must be remanded for resentencing based on other errors, we direct the trial court at resentencing to determine whether or not it wishes to strike or dismiss the firearm enhancements. In all other respects, we affirm the judgment.
BACKGROUND
I. Relevant Facts From The Prosecution's Case-In-Chief.
Two witnesses, Luis Acevedo (Luis) and Socorro Bravo, observed Ibarra's murder. A third witness, Guillermo Acevedo Cano (Luis's brother), was inside Ibarra's residence but asleep when the incident occurred. A fourth witness, Rogelio Buenrostro, saw appellant at Ibarra's residence before the murder, but Buenrostro left before the shooting occurred.
We refer to Luis Acevedo as Luis to avoid any confusion with his brother Guillermo Acevedo Cano. No disrespect is intended.
A. The murder.
1. Luis's and Bravo's trial testimony.
On November 28, 2014, sometime around 5:00 or 5:30 p.m., Buenrostro, Luis and Bravo were with Ibarra outside near Ibarra's residence. The men talked, they drank beer, and they ate chips and salsa. Buenrostro left about an hour later. Approximately 30 minutes after Buenrostro left, appellant approached the remaining men while holding a shotgun. A White male was seen with appellant.
Ibarra and Luis knew appellant from previous contacts. At trial, Luis denied knowing about any past problems between Ibarra and appellant. Bravo had only seen appellant once before this fatal encounter. Bravo lived next door to Ibarra, and Bravo happened to see appellant with a young White male about 2:00 p.m. on the day of Ibarra's murder.
During the fatal encounter, appellant appeared angry and he pointed his shotgun at Ibarra. Appellant demanded Ibarra to give him his wallet, and everything he had. Ibarra either did not respond or refused. Luis told appellant that he was going to take appellant to the residence (a trailer) to give appellant money or whatever Luis could find. Appellant told Luis to stay there. Appellant fired once, and Ibarra fell down. The White male ran away when the shot was fired.
After Ibarra was shot and he fell, appellant punched and kicked Ibarra's body. Appellant took Ibarra's wallet. Luis fled inside the residence. Appellant aimed his shotgun at Bravo but told him he would not hurt Bravo. Appellant told Bravo, "You never saw me," and appellant took off running.
2. Guillermo's trial testimony.
Inside Ibarra's residence, Guillermo, who had been asleep, woke up when he heard "some beating noise." He heard arguing and someone shouting at his brother, Luis. The person yelling was telling Luis not to go inside the residence, but to put his head down on the ground. Guillermo heard a shot. Through an open door to the trailer, Guillermo could see a gun pointed at Luis's head. The person holding the gun pumped it. At some point, Luis came inside the residence and they both fled through a back window.
3. The eyewitnesses identify appellant in court as Ibarra's shooter.
At trial, both Luis and Bravo identified appellant in court as Ibarra's shooter. Guillermo, who explained he had met appellant before and knew his voice, identified appellant in court as the person he heard from inside the trailer when he woke up and saw someone holding a gun to Luis's head.
B. Appellant's possible motive.
During Luis's trial cross-examination, he recalled an undisclosed time when appellant had asked Ibarra about money that Ibarra allegedly owed appellant. Ibarra had denied owing appellant anything.
At trial, Buenrostro recalled that he saw appellant at Ibarra's residence earlier on the day of the murder. Buenrostro knew appellant from past encounters, and Buenrostro was friends with appellant's girlfriend. Earlier on the day of the murder, appellant had approached Buenrostro near Ibarra's residence and appellant had asked Buenrostro if his friends would sell him drugs. Buenrostro told appellant that Ibarra did not sell drugs, and appellant replied that Ibarra was "going to be sorry." According to Buenrostro, appellant went to his vehicle, where appellant remained for about 30 minutes before he drove away. Later, Buenrostro left Ibarra's residence and went home. A short time later, Buenrostro learned that Ibarra had been killed. On cross-examination, Buenrostro agreed that Ibarra owed appellant money for two days of pruning that appellant had performed for him.
C. The autopsy.
An autopsy revealed that Ibarra was shot in his chest with a shotgun. He bled to death, and probably died within three to five minutes after sustaining the gunshot wound. Based on stippling around the wound, the pathologist opined that the single shot was fired from four to 12 feet away.
D. Jaime Brannum's trial testimony.
Jaime Brannum was appellant's roommate on the day of Ibarra's murder. At trial, Brannum recalled seeing appellant previously holding a shotgun at their residence. The weapon made Brannum nervous so he had asked appellant to remove it from their apartment.
According to Brannum, around 3:00 or 4:00 p.m. on the day of Ibarra's murder, appellant asked him to drive around with him in appellant's vehicle. Appellant did not disclose his plans. They drove around to various locations, including several residences. Appellant would exit his vehicle at each residence for about five to 10 minutes, while Brannum stayed inside the vehicle. One stop was at Ibarra's residence, which was very quick. Appellant parked close to Ibarra's residence, got out, and spoke to an "older gentleman" (who was likely Buenrostro). Appellant returned to his vehicle and they drove away. The sun was going down around that time. Brannum told the jury that he did not know either Ibarra or Luis, although he had "seen their faces before."
According to Brannum, they both returned to Ibarra's residence about an hour later. This time, appellant parked his vehicle about six houses down the street and then he began walking alone towards Ibarra's residence. Appellant had a long bag with him. Brannum testified at trial that he initially remained in appellant's vehicle, and he denied knowing what appellant was doing. Brannum believed appellant wanted to get some drugs.
After waiting for about 10 minutes, Brannum left the vehicle and walked to Ibarra's residence. When he got there, he saw appellant holding a shotgun down at his side while facing three men. The shotgun looked similar to the one Brannum previously saw appellant holding at their apartment. According to Brannum, he (Brannum) only walked to a fence that was surrounding Ibarra's property. He denied ever walking close to the other men. He said he ran away once he saw appellant holding the gun. At trial, he initially testified that he did not hear a gunshot as he fled because music at Ibarra's residence was too loud. He later changed his testimony and claimed to have heard a gunshot as he was running around the corner of the street. He said he ran to a house around the corner where appellant's girlfriend lived. Brannum later returned to his residence. At trial, he claimed that he did not see appellant again after the shooting.
Brannum told police that he had been home all day on the day of Ibarra's murder. At trial, he admitted lying to police. He claimed he lied because he was scared.
E. Evidence of appellant's flight.
On December 3, 2014, law enforcement detained appellant while he drove on a highway in Monterey County. A pair of boots were found in the vehicle, along with a packed suitcase with clothing and another pair of boots.
II. Relevant Facts From The Defense Case.
A. Appellant denies any involvement in Ibarra's murder.
Appellant testified on his own behalf without the assistance of legal counsel. On the morning of the murder, he claimed that he left his residence with Brannum around 11:00 a.m. Appellant went to Ibarra's residence in an effort to buy drugs. Appellant asked Buenrostro for $20 worth of drugs, which was refused for being too small of an amount to sell. Although he begged, he could not buy drugs there. Appellant was frustrated, and he told Buenrostro that Ibarra would "regret it" if he did not sell him some drugs.
At around 12:00 p.m., appellant dropped Brannum off at a location where Brannum could work. Appellant went to his sister-in-law's house. While there, he drank hard alcohol mixed with beer. He became too intoxicated to drive. His sister-in-law, Rosalva Perez, drove him to his sister's house when it was "already getting dark." At his sister's house, appellant ate and he fell asleep.
Appellant told the jury that his suitcase was packed because he had a preplanned weekend trip with his children at Morro Bay and San Luis Obispo. His children lived in Hawaii and they had come to California to meet him. They took pictures at the beach. He stayed in that area for two nights. Because the lodging was so expensive, he was driving towards Salinas when he was detained by law enforcement.
Appellant's children were not called to testify in this trial.
At trial, appellant denied being at Ibarra's residence when this murder occurred, and he denied killing Ibarra. Appellant said Brannum was lying about them returning to Ibarra's residence a second time that day. He admitted that Ibarra owed him money, but he denied being angry with Ibarra. He denied ever having any guns. He believed Brannum was lying about seeing him with a gun.
B. Perez's trial testimony.
Appellant's sister-in-law, Perez, testified that appellant arrived at her house at noon on the day of Ibarra's murder. He did maintenance there, finishing around 4:00 p.m. He had been drinking, so she gave him a ride to his sister's house. She dropped him off at his sister's house at around 5:00 p.m. She and her husband's cousin later drove appellant's vehicle and parked it near the house of appellant's sister.
During cross-examination, Perez admitted that when she first spoke to an investigator about her interactions with appellant, she only mentioned that appellant left her house at 5:00 p.m. on the day in question. She did not mention driving him to his sister's house.
III. Prosecution's Rebuttal Evidence.
In rebuttal, the prosecution introduced evidence from Facebook, which depicted a page registered in appellant's name. The page had multiple photographs, including one showing a person holding a rifle. The detective who testified about this page identified appellant as the person depicted in that photograph.
DISCUSSION
I. Appellant Voluntary Waived His Right To Legal Counsel.
Appellant argues that his waiver of legal counsel was not voluntary and violated the Sixth Amendment. He contends that his convictions must be reversed.
A. Background.
Law enforcement detained appellant on December 3, 2014, and he was arraigned in this matter on December 8, 2014. At the conclusion of arraignment, the trial court appointed him legal counsel. In March 2015, appellant's appointed counsel filed a written motion to continue the preliminary hearing. Counsel argued that she needed adequate time to prepare, but appellant had withdrawn his general time waiver. Counsel noted that appellant objected to a continuance. On March 5, 2015, the trial court granted the continuance.
On March 18, 2015, the trial court heard argument regarding a motion to quash appellant's subpoena duces tecum, which his counsel had served on the Tulare County Sheriff's Department. At the conclusion of the March 18, 2015, hearing, appellant's counsel alerted the court that appellant continued to object to delays.
On April 1, 2015, the trial court held an in camera hearing with regards to appellant's subpoena duces tecum. We address this subpoena duces tecum in more detail in section II, below. At the conclusion of that hearing, appellant's counsel informed the court that appellant wanted to represent himself because he was "quite unhappy with the delays in the case."
On April 13, 2015, appellant confirmed that he wished to represent himself. The trial court questioned him regarding his educational background, and advised him of the pitfalls of self-representation. Appellant signed, initialed and dated a written waiver of counsel. The court relieved appellant's appointed counsel from further representation in this matter.
Prior to trial, the trial court continued to advise appellant against self-representation. The court continued to give appellant opportunities to withdraw his request, which appellant repeatedly declined. Appellant indicated that he wanted to represent himself because he did not want to waive time, and he wanted his trial that same month. He did not like that attorneys wanted to waive time. He said fingerprints should exist on the beer cans at the murder scene "that proves it's not me." He did not want to be in jail any longer for a crime he claimed that he did not commit.
Upon hearing appellant's belief regarding fingerprints, the trial court asked the prosecutor if any such evidence existed. The prosecutor was unaware of any such fingerprint evidence in this matter. During Bravo's trial cross-examination, appellant asked Bravo if "you guys" had wiped "down the cans [of beer] for fingerprints? Did you guys ever wipe them down?" Bravo denied that anyone, including appellant, wiped down the cans of beer.
B. Standard of review.
On appeal, we independently determine whether a defendant made a knowing and voluntary waiver of his right to legal counsel. (People v. Jackio (2015) 236 Cal.App.4th 445, 452.) When, as here, a defendant wages a collateral attack on his uncounseled conviction, it is the defendant's burden to prove he did not knowingly, intelligently, and voluntarily waive his right to counsel. (Iowa v. Tovar (2004) 541 U.S. 77, 92.)
C. Analysis.
In raising this claim, appellant concedes that his waiver was knowing and intelligent. He maintains, however, that he was forced to choose between his right to counsel and his right to a speedy trial. As such, he argues that he did not make a voluntary waiver. He relies primarily on People v. Bolton (2008) 166 Cal.App.4th 343 (Bolton) and Simmons v. United States (1968) 390 U.S. 377 (Simmons). He further blames the trial court for forcing him to choose between his rights. He suggests that the trial court should have compelled his counsel to proceed with the trial even if counsel was not as prepared as she wanted to be. We find appellant's arguments and his cited authority unpersuasive.
Our Supreme Court has noted the tension that exists between a criminal defendant's rights to a speedy trial on the one hand, and the right to the effective assistance of counsel on the other hand. (People v. Frye (1998) 18 Cal.4th 894, 938-939 (Frye), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) However, the inherent tension between the right to a speedy trial and the right to competent, adequately prepared counsel does not, by itself, impermissibly infringe on a defendant's rights, including the right to a fair trial. (Frye, supra, 18 Cal.4th at p. 939.)
The Sixth Amendment of the United States Constitution guarantees a defendant (1) the right to be represented by counsel at critical stages of the prosecution, and (2) the right to represent himself, if he so elects. (People v. Koontz (2002) 27 Cal.4th 1041, 1069.) The federal Constitution requires "assiduous protection" of a defendant's right to counsel. (People v. Marshall (1997) 15 Cal.4th 1, 20.) Accordingly, courts must indulge every reasonable inference against a defendant's waiver of that right. (Brewer v. Williams (1977) 430 U.S. 387, 404.)
"The requirements for a valid waiver of the right to counsel are (1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion. [Citations.]" (People v. Koontz, supra, 27 Cal.4th at pp. 1069-1070.) In order to make a valid waiver of the right to counsel, a defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' [Citation.]" (Faretta v. California (1975) 422 U.S. 806, 835.)
Here, contrary to appellant's claims, this record does not establish that he was coerced into making his waiver. The trial court repeatedly advised him of the dangers and disadvantages of self-representation. This record demonstrates that appellant understood the significance and consequences of his decision. He gave an unequivocal and unmistakable waiver of his right to counsel. We disagree that his choice was not voluntary.
We further disagree with appellant's suggestion that the trial court "forced" him to represent himself in a manner that rendered his waiver invalid. We also disagree that the trial court should have compelled appellant's appointed counsel to proceed to trial even if not adequately prepared. A trial court has a duty to assure, as much as possible under the circumstances, that a criminal defendant receives diligent advocacy. (People v. McKenzie (1983) 34 Cal.3d 616, 626.) Although appellant may have wanted a speedy trial, some rights are mutually exclusive, "and hard choices are not unconstitutional." (Frye, supra, 18 Cal.4th at p. 940.)
Appellant's present appeal does not allege that the trial court abused its discretion in granting the continuance on March 5, 2015, regarding the preliminary hearing. (See, generally, People v. Lomax (2010) 49 Cal.4th 530, 554 [A trial court has discretion to determine what constitutes good cause to delay a criminal trial].) As such, our analysis focuses only on whether appellant's waiver was voluntary.
Finally, to support his claim, appellant cites opinions wherein a criminal defendant was generally forced to choose between two competing constitutional rights. For instance, in Simmons, supra, 390 U.S. 377, the high court reversed a defendant's criminal conviction when his testimony at a suppression hearing was used against him at trial. (Id. at pp. 380-381, 394.) Simmons found it "intolerable" that the defendant had to choose between his Fourth Amendment right to suppress evidence and his Fifth Amendment privilege against self-incrimination. (Id. at p. 394.)
In Bolton, supra, 166 Cal.App.4th 343, the trial court relieved the defendant's appointed counsel approximately four days before trial commenced. (Id. at p. 349.) The defendant requested to represent himself rather than be forced to waive his speedy trial right again. (Ibid.) The trial court agreed and the defendant represented himself at trial. The jury found him guilty on five of six charges, being unable to reach a verdict on the other count. (Id. at p. 350.) On appeal, the defendant argued that his waiver of his right to counsel was not voluntary, and the trial court erred in relieving his third appointed attorney mere days before trial. The Bolton court agreed, determining that neither the defendant's appointed counsel nor the trial court properly handled the alleged conflict of interest. (Id. at pp. 350-351.) Bolton found that the trial court should not have relieved the defendant's counsel. (Id. at p. 356.) Bolton further determined that the defendant waived his right to counsel only because of the trial court's error. (Id. at p. 359.) Under these circumstances, Bolton could not conclude that the waiver was voluntary. (Id. at p. 361.)
Here, appellant's cited authorities do not assist him. Unlike in Simmons, appellant did not give up his right to remain silent in order to suppress evidence. Unlike in Bolton, appellant had not been represented by multiple attorneys, and his appointed counsel was not discharged mere days before trial was set to commence. Importantly, unlike in Bolton, the discharge of appellant's appointed counsel was not due to the error of the trial court. These opinions are distinguishable and do not dictate reversal.
Based on this record, appellant was competent to waive his right to appointed counsel, and he gave a waiver that was knowing and voluntary. Appellant understood the significance and consequences of his decision, and he made it without coercion. Appellant has not met his burden to prove that he did not knowingly, intelligently, and voluntarily waive his right to counsel. As such, we reject appellant's contentions and this claim fails.
Because appellant's waiver was valid, we do not address his alternative claim that he suffered prejudice.
II. The Trial Court Provided The Defense With All Responsive Documents During The In Camera Hearing.
Appellant requests that we review the in camera hearing that the trial court conducted on April 1, 2015, including a review of the documents, to determine whether the court properly ordered all discovery to which appellant was entitled. Respondent does not object to our review. We find no error and we can quickly resolve this issue.
A defendant is generally entitled to discovery of information that will assist in the defense or be helpful with impeachment or cross-examination of adverse witnesses. In the context of a discovery motion, the trial court's ruling is reviewed for an abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 953.) The government has a due process obligation to disclose evidence in its possession that is favorable to a criminal defendant, and material to the issues of guilt or punishment. (Id. at p. 954.)
Here, on April 1, 2015, the trial court conducted an in camera hearing to review files that the Tulare County Sheriff's Department lodged in response to appellant's subpoena duces tecum. The subpoena sought all reports from the Sheriff's Department stemming from another criminal matter, case number 13-40107 (the companion matter). Based on representations made by appellant's then appointed legal counsel, Buenrostro and Ibarra had been arrested in the companion matter. The defense believed the companion matter might show animosity developing between Ibarra and Buenrostro. The defense's theory at that time was that Buenrostro was responsible for Ibarra's murder. The public defender's office represented Buenrostro in another matter and it wanted to confirm whether or not it had a conflict of interest.
During the in camera hearing, the trial judge reviewed a declaration from the custodian of records that indicated 17 pages were provided in response to appellant's subpoena. Following review of the records, the judge noted that the actual report was 15 pages. The judge did not see anything that indicated a grudge between Ibarra and Buenrostro. The judge, however, released the subpoenaed records to appellant's defense counsel under seal with an order that they could not be duplicated in any way without permission of the court. Defense counsel asked if she could upload the discovery into her software system at work, which would allow her investigator and paralegals to have access. The judge indicated that was fine. The judge directed defense counsel to make a copy of the records for her files, and then to return the originals to the court on April 22, 2015.
On January 9, 2018, the superior court provided this court with a copy of the documents that the judge reviewed during the in camera hearing. We have reviewed those documents, which are consistent with the judge's representations.
Based on the trial court's representations in the sealed reporter's transcript, the defense received all of the documents that were submitted by the custodian of record for the Sheriff's Department in response to appellant's subpoena. This record does not establish that any documents were withheld from the defense. As such, due process was met and no abuse appears in this record.
III. The Failure To Instruct With CALCRIM No. 302 Was Harmless.
The parties agree that the trial court erred in failing to instruct the jury with CALCRIM No. 302 regarding how to evaluate conflicting testimony. CALCRIM No. 302 reads as follows:
"If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor
one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point."
A trial court has a sua sponte duty to instruct the jury with CALCRIM No. 302 when conflicting evidence has been presented at trial. (See People v. Virgil (2011) 51 Cal.4th 1210, 1261-1262 (Virgil) [a trial court must sua sponte instruct the jury with CALJIC No. 2.22, the predecessor to CALCRIM No. 302, when conflicting evidence has been presented].)
Here, conflicting testimony was presented regarding appellant's involvement in these crimes. As such, the trial court should have provided this instruction and we agree with the parties that error occurred. However, although the trial court erred, we agree with respondent that this error was harmless.
Our Supreme Court has rejected the argument that a failure to instruct a jury on weighing conflicting testimony undermines reasonable doubt. (People v. Cleveland (2004) 32 Cal.4th 704, 751 [analyzing CALJIC No. 2.22].) We typically review instructional errors under the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman (1998) 19 Cal.4th 142, 178.) An error requires reversal under Watson only where "an examination of the entire record establishes a reasonable probability that the error affected the outcome." (People v. Breverman, supra, 19 Cal.4th at p. 165, citing People v. Watson, supra, at p. 836 & Cal. Const., art. VI, § 13.) Our Supreme Court has noted that Watson "requires a reasonable probability, not a mere theoretical possibility, that the instructional error affected the outcome of the trial." (People v. Blakeley (2000) 23 Cal.4th 82, 94.)
In raising this claim, appellant notes that the prosecution had five witnesses against him while the defense presented two witnesses, including his own testimony. He argues the jurors would have relied on the number of eyewitnesses to determine guilt. He asserts the trial court's error in failing to instruct with CALCRIM No. 302 was not harmless. Based on Virgil, supra, 51 Cal.4th 1210, we reject these arguments.
In Virgil, supra, 51 Cal.4th 1210, conflicting trial evidence was presented regarding the appearance and identity of the perpetrator of a murder. (Id. at p. 1262.) Although the defendant did not request CALJIC No. 2.22, the predecessor to CALCRIM No. 302, the Supreme Court ruled that the trial court had a sua sponte duty to instruct the jury on evaluating conflicting evidence. (Id. at pp. 1261-1262.) Virgil, however, found the error harmless because the jury had received sufficient guidance from other form instructions regarding how to evaluate conflicting testimony. (Id. at p. 1262.) Moreover, the prosecutor had not suggested that guilt could be determined by comparing the number of witnesses each side presented. (Ibid.) Finally, there was no evidence the absence of this instruction hampered the jury's ability to evaluate the evidence. Because it was not reasonably probable the jury would have reached a different result had CALJIC No. 2.22 been given, the Supreme Court found the instructional error harmless. (Ibid.)
Here, similar to Virgil, the jury was instructed regarding how to judge witness credibility (CALCRIM Nos. 105, 226); the inferences to be drawn from direct and circumstantial evidence (CALCRIM No. 223); the requirement for sufficient evidence to support circumstantial evidence (CALCRIM No. 224); the fact that the testimony of only one witness can prove any fact (CALCRIM No. 301); and how to evaluate eyewitness identification testimony (CALCRIM No. 315). Considering the instructions as a whole, we are satisfied the jury was properly guided regarding how to evaluate the conflicting testimony.
Moreover, during his brief closing arguments, including his comments during rebuttal, the prosecutor did not suggest that appellant's guilt could be determined by comparing the number of witnesses each side presented. There is nothing to suggest that the absence of CALCRIM No. 302 hampered the jury's ability to evaluate the trial evidence.
Finally, the trial evidence overwhelmingly established appellant's guilt for Ibarra's murder and the robbery. The two eyewitnesses to the shooting, Luis and Bravo, testified at trial that it was appellant who shot Ibarra on November 28, 2014. Bravo saw appellant remove Ibarra's wallet. Both Luis and Bravo saw a White male initially with appellant, and this White male fled when appellant shot Ibarra. Guillermo, who had been asleep inside the trailer, testified that he recognized appellant's voice as the person who was holding a gun to Luis's head during this incident.
Brannum testified that he accompanied appellant twice to Ibarra's residence on the day of this murder. The second time, he saw appellant holding a shotgun while appellant stood in front of three men. According to Brannum, it was the same shotgun he had seen appellant hold before. Although Brannum claimed that he ran away before appellant fired the fatal shot, Brannum's trial testimony provided corroboration that appellant was at the crime scene with a shotgun.
Further, law enforcement detained appellant in Monterey County approximately five days after Ibarra's murder. Appellant had a suitcase packed with clothing. His explanation of meeting family members, none of whom he called to testify on his behalf, lacked any credibility. With CALCRIM No. 372, the jury was instructed that appellant's flight after the commission of the crime may show he was aware of his guilt. It was up to the jury to decide the meaning and importance of that conduct, but that conduct could not prove guilt by itself. Under these circumstances, appellant's flight strongly suggested his knowledge of guilt.
Based on this record, there is no reasonable probability that the instructional error affected the outcome of the trial. It is not reasonably probable the jury would have reached a different result had CALCRIM No. 302 been given. Accordingly, the trial court's error in failing to give this instruction was harmless and this claim fails.
IV. The Trial Court Did Not Err in Failing To Instruct Regarding Accomplice Testimony And Any Presumed Error Was Harmless.
At trial, Brannum admitted to being with appellant during the day leading up to Ibarra's murder, and he said that they had returned to Ibarra's residence but parked about six houses down. He denied knowing why appellant returned. Brannum admitted to walking up and seeing appellant holding a gun at Ibarra's residence, but he claimed he fled before the shot was fired. In contrast, both Luis and Bravo claimed that a White male was with appellant when the murder occurred, and the White male fled when the shot was fired.
Based on the trial testimony, appellant claims that a reasonable juror could have concluded that Brannum was an accomplice to the shooting within the meaning of section 1111. He claims the trial court prejudicially erred in failing to instruct regarding how to view an accomplice's testimony.
A. Standard of review.
" 'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' [Citations.]" (People v. Diaz (2015) 60 Cal.4th 1176, 1189.) We review de novo a claim that a trial court failed to give a required jury instruction. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
B. Analysis.
Section 1111 prohibits a criminal conviction based on the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. "An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.)
1. The evidence does not establish that Brannum was an accomplice.
"An accomplice is someone subject to prosecution for the charged crimes by reason of aiding and abetting or being a member of a conspiracy to commit the charged crimes. [Citations.]" (People v. Houston (2012) 54 Cal.4th 1186, 1224.) An accomplice must have both guilty knowledge and intent regarding the crime's commission. (Ibid.) "In other words, an aider and abettor of a specific intent crime shares the perpetrator's specific intent when he or she knows of the perpetrator's criminal purpose and aids, promotes, encourages, or instigates the perpetrator with the intent of encouraging or facilitating the commission of the crime. [Citations.]" (Ibid.)
"When a jury receives substantial evidence that a witness who has implicated the defendant was an accomplice, a trial court on its own motion must instruct it on the principles regarding accomplice testimony. [Citation.] This includes instructing the jury that an accomplice's testimony implicating the defendant must be viewed with caution and corroborated by other evidence. [Citations.]" (People v. Houston, supra, 54 Cal.4th at p. 1223.)
Here, although Luis and Bravo testified that a White male (which clearly was Brannum) was present with appellant, there is no evidence that Brannum did anything to assist, encourage or aid appellant. Brannum generally denied knowing appellant's plans that day, and Brannum fled once appellant shot Ibarra. Merely being at a crime scene does not make someone an accomplice. (People v. Sully (1991) 53 Cal.3d 1195, 1228.)
We disagree with appellant that a jury could have reasonably found that Brannum was an accomplice. Based on this record, the trial court was not required to instruct the jury on accomplice liability. As such, this claim fails. In any event, we also determine that any presumed error was harmless.
2. Any presumed error was harmless.
A failure to instruct on accomplice testimony is harmless if there is sufficient corroborating evidence in the record. (People v. Sanders (1995) 11 Cal.4th 475, 534-535.) Such corroborating evidence need only to connect the defendant with the commission of the crime so as to reasonably satisfy the jury that the accomplice was telling the truth. (Id. at p. 535.)
Here, as discussed previously, the corroborating evidence of appellant's guilt was overwhelming based on evidence other than Brannum's testimony. The other witnesses more than adequately connected appellant with the commission of these crimes. We reject appellant's claim that this presumed error was prejudicial because the other witnesses "were Ibarra's friends" and the jury may have questioned their veracity.
Even if we were to agree that Brannum was an accomplice and that the trial court erred by failing to instruct the jury, this presumed error was harmless under any applicable standard. (See People v. Houston, supra, 54 Cal.4th at p. 1225 [finding no presumed error for this same issue "under any applicable standard" because of overwhelming evidence of guilt].) Accordingly, prejudice is not present and this claim fails.
V. Appellant Must Be Resentenced Because The Sentence Enhancements Were Not Proven.
The parties agree, as do we, that the sentence enhancements must be vacated in counts 1, 2 and 5 based on the special allegations that appellant had a prior serious felony conviction, he had a prior strike conviction, and he had prior prison terms. These allegations were not proven beyond a reasonable doubt.
A. Background.
In counts 1, 2 and 5, the prosecution alleged, in part, that appellant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), that he had served prior prison terms (§ 667.5, subd. (b)), and that he had suffered a prior strike conviction (§§ 1170.12, subds. (a)-(d)/667, subds. (b)-(i)). The allegations regarding appellant's prior strike conviction and prior serious felony conviction were based on an alleged conviction in 2001 for assault with a deadly weapon (§ 245, subd. (a)(1)). At arraignment, appellant denied all special allegations.
On the day jury selection began, the trial court informed the prospective jurors that appellant "has previously admitted that he has a prior felony conviction." Just prior to the close of the prosecution's case-in-chief, the prosecutor noted his belief that appellant had admitted his prior convictions for purposes of the charge of being a felon in possession of a firearm. The prosecutor asked for a stipulation for purposes of section 29800. The trial court asked appellant if he agreed that he had admitted to a prior felony conviction. Appellant agreed.
The parties do not cite, and we have not found in the record, any previous admission by appellant that he had a prior felony conviction.
The trial court instructed the jury with CALCRIM No. 2510, which instructs regarding the elements of the crime of possession of a firearm as a felon. The court informed the jurors that the parties had stipulated that appellant was previously convicted of a felony.
After appellant was convicted of first degree murder, robbery and illegal possession of a firearm by a felon, the trial court sentenced him to LWOP for the murder, plus an additional 25 years to life for the firearm enhancement, an additional five years for the prior serious felony conviction allegation (§ 667, subd. (a)(1)) and an additional two years for two of the prior prison terms allegations (§ 667.5, subd. (b)). It also imposed a consecutive sentence of 10 years for the robbery conviction, plus an additional 25 years to life for the firearm enhancement, an additional five years for the prior serious felony conviction allegation (§ 667, subd. (a)(1)), and an additional two years for two of the prior prison terms allegations (§ 667.5, subd. (b)).
Although the prescribed upper-term sentence for second degree robbery is five years in prison (§ 213, subd. (a)(2)), the trial court sentenced appellant to a 10-year term for this conviction. Although the trial court did not expressly state this, the parties presume in their respective briefs that the trial court used appellant's 2001 prior strike conviction to double his sentence on the robbery conviction. (See § 1170.12, subd. (c)(1) [a determinate term is doubled if a convicted defendant has a prior serious and/or violent felony conviction that has been pled and proved].) We agree with the parties that this presumption appears reasonable and correct under the circumstances. In the probation report, the probation officer recommended a 10-year sentence in count 2 pursuant to section 1170.12, subdivision (c)(1).
B. Standard of review.
"We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.]" (People v. Wilson (2008) 44 Cal.4th 758, 806.) We must search the whole record in the light most favorable to the judgment to determine whether substantial evidence exists to support the finding. (Ibid.)
C. Analysis.
Sentence enhancements must be alleged in the accusatory pleading and either admitted by the defendant in open court or found true by the trier of fact. (§ 667, subds. (c) & (g) [prior serious and/or violent felonies]; § 667.5, subd. (d) [prior prison terms]; § 1170.1, subd. (e) [all enhancements]; § 1170.12, subd. (d)(1) [prior serious and/or violent felony convictions].) Due process requires the prosecution to prove each element of a sentence enhancement beyond a reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 566.)
Here, the parties agree, as do we, that nothing in this record indicates that appellant properly admitted the elements to establish the alleged enhancements in counts 1, 2 and 5 for a prior strike conviction (§§ 1170.12, subds. (a)-(d)/667, subds. (b)-(i)); the prior serious felony conviction (§ 667, subd. (a)(1)) and/or the prior prison terms (§ 667.5, subd. (b)). These sentence enhancements were never found true by the trier of fact. The trial court, however, used these alleged enhancements at sentencing to increase appellant's term of imprisonment in counts 1, 2 and 5. As such, we agree with the parties that appellant must be resentenced in counts 1, 2 and 5.
Respondent argues that double jeopardy does not bar the prosecution from retrying these penalty allegations upon remand. Appellant did not respond to this claim in his reply brief. We agree with respondent. A prior conviction allegation may be retried without violating double jeopardy under either the federal Constitution or the California Constitution. (People v. Barragan (2004) 32 Cal.4th 236, 241.) A retrial is proper where defects in the proof of a prior conviction may be corrected on retrial. (Id. at p. 245.) Retrial is permissible even if an appellate court reverses a prior strike finding for insufficient evidence. (Id. at pp. 239, 259, fn. 9.) Retrial of a prior conviction allegation also does not violate the constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions. (Id. at p. 239.) Unlike reversal of a substantive offense conviction for insufficient evidence, reversal of a sentencing enhancement conviction is not similar to an acquittal because a defendant cannot be "acquitted" of his prior conviction status " ' "any more than he can be 'acquitted' of being a certain age or sex or any other inherent fact." [Citation.]' [Citation.]" (Id. at p. 242.) Our Supreme Court has held that allowing a retrial of a prior conviction allegation furthers the important public policy of imposing more severe punishment on recidivists. (Id. at p. 245.)
We vacate the sentence enhancements in counts 1, 2 and 5. This matter is remanded to the trial court for resentencing. Prior to resentencing, the prosecution may, if it so elects, attempt to prove these penalty allegations. In any event, the trial court shall resentence appellant.
VI. The Trial Court Improperly Imposed Prior Prison Term Enhancements In Count 5.
Generally, when a defendant is convicted of two or more felonies and a consecutive term of imprisonment is imposed pursuant to sections 669 and 1170, the aggregate term of imprisonment for all convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements, including for prior convictions and prior prison terms. (§ 1170.1, subd. (a).) As such, when imposing a determinate sentence on a recidivist offender convicted of multiple offenses, a trial court may impose an enhancement for a prior conviction or prior prison term only once to increase the aggregate term, but not separately for each principal or subordinate terms imposed for each new offense. (People v. Williams (2004) 34 Cal.4th 397, 400.)
Here, the trial court sentenced appellant to LWOP for first degree murder, and also sentenced him to determinate terms in counts 2 and 5. In each determinate sentence, the court imposed two additional years based on two prior prison term enhancements (§ 667.5, subd. (b)). The sentence on count 5 was stayed pursuant to section 654.
We agree with the parties that, although the sentence on count 5 was stayed, the trial court improperly imposed prior prison term enhancements more than once to increase the total aggregate determinate term. (See § 1170.1, subd. (a); People v. Williams, supra, 34 Cal.4th at p. 400.) As such, we vacate the sentence enhancements imposed in count 5 pursuant to section 667.5, subdivision (b). We remand this matter for resentencing.
Upon remand, if the prosecution elects to prove these sentence enhancements and establishes the required elements beyond a reasonable doubt, the trial court shall resentence appellant in conformity with section 1170.1, subdivision (a). When imposing the aggregate determinate sentence, the trial court shall impose an enhancement for a prior conviction or prior prison term only once to increase the aggregate term, but not separately for each principal or subordinate term imposed for each new offense. (People v. Williams, supra, 34 Cal.4th at p. 400.)
VII. We Decline To Stay The Sentence On The Robbery Conviction.
Although appellant was convicted of first degree murder, the jury did not specify on the verdict form how it reached that finding in count 1. In count 1, however, the jury found true the special circumstance allegation that appellant committed first degree murder during the commission of a robbery. A first degree murder committed during a robbery carries either a death or LWOP sentence. (§ 190.2, subd. (a)(17)(A).)
The parties dispute whether the trial court erred in failing to stay punishment for the robbery conviction pursuant to section 654. Appellant contends he received LWOP based on the jury's finding that the first degree murder occurred during a robbery. He also argues he was punished for robbing Ibarra by virtue of his LWOP sentence so his robbery sentence should have been stayed. He relies principally on People v. Hensley (2014) 59 Cal.4th 788 (Hensley); People v. Montes (2014) 58 Cal.4th 809 (Montes); and People v. Coelho (2001) 89 Cal.App.4th 861 (Coelho).
In contrast, respondent argues (and appellant concedes) that it is unclear under which theory the jury found first degree murder. According to respondent, the jury could have found that Ibarra's murder was deliberate and premeditated, noting that the prosecutor spent time during closing arguments emphasizing this theory. Respondent relies primarily on People v. Osband (1996) 13 Cal.4th 622 (Osband).
We find Osband, supra, 13 Cal.4th 622 instructive and we agree with respondent. Because substantial evidence exists in the record that appellant held more than one objective when he committed the crimes against Ibarra, we decline to stay the robbery sentence pursuant to section 654.
A. Standard of review.
It is generally a factual matter regarding whether the facts and circumstances reveal a single intent and objective within the meaning of section 654. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.) In contrast, the meaning and dimension of section 654 is a legal question. (Ibid.) "We apply the substantial evidence standard of review to the trial court's implied finding that a defendant harbored a separate intent and objective for each offense. [Citations.]" (Ibid.)
B. Analysis.
Although a person may be convicted of more than one crime arising out of the same course of conduct, section 654 bars multiple punishments for the same criminal act. (People v. Correa (2012) 54 Cal.4th 331, 337.) When imposing sentence, the longest potential term of imprisonment shall be imposed, but the act or omission may not be punished under more than one provision. (§ 654, subd. (a).)
The purpose of section 654 is to insure that punishment is equal to criminal culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Our Supreme Court has enunciated the following test: " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (People v. Latimer, supra, 5 Cal.4th at p. 1208.)
In Osband, supra, 13 Cal.4th 622, the jury found true that the defendant committed special circumstances murder based on first degree murder committed during a burglary, during a robbery, and after raping the victim. (Id. at pp. 652-653.) The defendant in Osband was sentenced to death, and received consecutive sentences for the rape and robbery. (Id. at pp. 652, 730.) On appeal, he argued that the jury may have found him guilty of felony murder based on the underlying rape or robbery, or both. He also maintained that the crimes were committed for a single objective. He contended it was error not to stay sentencing on the rape and robbery pursuant to section 654. (Osband, supra, at p. 730.) The Supreme Court, however, declined to stay the sentence because it was not clear that the first degree murder was based on felony murder, and substantial evidence supported the trial court's implicit finding that the defendant had multiple criminal objectives. (Id. at pp. 730-731.)
Here, similar to Osband, the trial court instructed the jury on two theories of first degree murder: felony murder, and premeditated and deliberate murder. During closing arguments, the prosecutor contended this was a premeditated and deliberate murder. The prosecutor emphasized the planning that was involved. The prosecutor then noted that appellant "wanted something" from Ibarra, and appellant killed him for the wallet. The prosecutor asked the jury to find true the special allegation that the murder was committed for the purpose of robbery.
Similar to Osband, in sentencing appellant on the robbery conviction, the trial court implicitly found that appellant had multiple objectives in committing these crimes. Substantial evidence supports the trial court's implicit finding.
In his first visit to Ibarra's residence on the day of this murder, appellant threatened Ibarra by telling Buenrostro that Ibarra would be "sorry" for not selling drugs to him. Appellant was also possibly upset because Ibarra had not paid him for work he had performed. On his return to Ibarra's residence later that day, appellant parked his truck six houses down and then walked to Ibarra's residence armed with a shotgun hidden inside a long bag. At the residence, appellant walked slowly up to Ibarra, Luis and Bravo, pointed the shotgun directly at Ibarra, and demanded Ibarra's wallet, money, and "everything" he had. Appellant looked angry. Luis offered appellant whatever was inside the trailer to resolve the issue. Appellant told Luis to stay, and he shot Ibarra in the chest from about 10 feet away. Appellant walked over to Ibarra and kicked him as he lay on the ground. Appellant then took Ibarra's wallet.
The trial evidence substantially established appellant's premeditated and deliberate intent to kill Ibarra, along with a separate and distinct objective to rob him. Shooting Ibarra was gratuitous violence against a helpless and unresisting victim. This murder is an example of violence incidental to the robbery for purposes of section 654. (See People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191, and cited cases therein.) Appellant's shooting was sufficiently divisible from the robbery to justify multiple punishments.
We disagree with appellant that the robbery sentence should be stayed because he was punished for robbing Ibarra by virtue of his LWOP sentence in count 1. We also disagree that we should presume that the jurors found appellant guilty of first degree murder based on a felony-murder theory. Osband impliedly rejected these arguments.
The jury in Osband found true special circumstances murder, and the defendant was sentenced to death. (Osband, supra, 13 Cal.4th at pp. 652-653.) Despite the jury's true findings and the death sentence, the Supreme Court declined to stay the sentences on the rape and robbery convictions pursuant to section 654. In Osband, as here, it was not clear that the first degree murder was based on felony murder, and substantial evidence supported the trial court's implicit finding that the defendant held multiple criminal objectives. (Id. pp. 730-731.)
Finally, appellant's three authorities do not assist him. First, in Coelho, supra, 89 Cal.App.4th 861, the Court of Appeal developed a methodology for identifying the factual basis of a verdict in the context of determining whether a recidivist provision for mandatory consecutive sentences is applicable. There, the defendant was convicted of 10 counts of lewd and lascivious acts, and he received consecutive indeterminate prison terms on all of the convictions. (Id. at p. 865.) The jury could have based its verdicts upon a number of unlawful acts. The trial court could not determine beyond a reasonable doubt the particular acts the jury selected. (Id. at p. 879.) On appeal, the Coelho court noted that, under the Three Strikes law, a trial court must impose a consecutive sentence for each current offense committed on a different occasion and not arising from the same set of operative facts. (Id. at p. 864.) To exercise this sentencing discretion, a trial court must know the factual basis of each conviction. (Id. at p. 865.) Coelho held that, where a jury could have based its verdicts upon a number of unlawful acts and the trial court cannot determine beyond a reasonable doubt the particular acts the jury selected, a trial court should assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms. (Ibid.) For the purpose of determining the scope of a trial court's sentencing discretion, the Court of Appeal applied "the rule of lenity" to resolve ambiguity in a defendant's favor. (Id. at pp. 885-886.)
Here, Coelho did not address first degree murder or whether to stay the sentence on an underlying felony supporting special circumstances murder. Although Coelho provides guidance regarding sentencing discretion under the Three Strikes law for ambiguity stemming from the jury's verdicts, Coelho is inapposite to the present issue and we decline to rely on it in this situation.
Second, in Hensley, supra, 59 Cal.4th 788, the Supreme Court held that section 654 precluded the imposition of consecutive terms on two robbery counts. The robberies formed the basis for the first degree felony-murder convictions and findings on the robbery-murder special-circumstance allegations. (Id. at p. 828.) Hensley also stayed a sentence for conviction of another robbery because the defendant had been sentenced for an attempted murder conviction for shooting the victim in the process of that other robbery. The high court found that the evidence did not suggest an intent or objective for the shooting other than one to facilitate the robbery. (Ibid.)
Likewise, in Montes, supra, 58 Cal.4th 809, the trial court sentenced the defendant to concurrent terms on four counts, including kidnap during a carjacking and carjacking, which were the predicate felonies for the finding of first degree murder on a theory of felony murder. (Id. at p. 898.) On appeal, the People conceded that felony murder was the sole theory of murder under which the case was prosecuted. (Ibid.) The defendant was sentenced to death for the murder. Accordingly, the Supreme Court determined that section 654 precluded imposition of separate terms for the two felonies that established the felony murder. (Ibid.)
Here, unlike in Hensley and Montes, appellant's conviction for first degree murder was not based solely on a theory of felony murder. To the contrary, the prosecutor argued that this was first degree murder based on premeditation and deliberation. Substantial evidence supports that theory. Hensley and Montes are distinguishable and do not establish sentencing error.
Based on Osband, we reject appellant's argument that sentence on his robbery conviction should have been stayed because the jury may have found him guilty of felony murder. We also reject his claim that his robbery sentence must be stayed because he was sentenced to LWOP for the special circumstances murder. Substantial evidence supports the trial court's implicit finding that appellant held multiple intents and objectives when he shot Ibarra and then robbed him. Accordingly, we decline to stay the sentence on the robbery conviction under section 654 and this claim fails.
VIII. The Trial Court Did Not Err In Imposing A Parole Revocation Fine.
At sentencing, appellant was sentenced to both an LWOP term and a consecutive aggregate determinate sentence of 17 years plus 25 years to life. The trial court imposed a parole fine of $10,000 pursuant to section 1202.45. This fine was suspended pending successful completion of parole.
Appellant argues that the parole fine was unauthorized and should be stricken. He also contends that his determinate term was "subsumed" by his LWOP sentence. He relies on People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan) for the proposition that, if a defendant receives LWOP, a parole fine may not be imposed under section 1202.45 even though the defendant may have received a determinate term in conjunction with LWOP. However, based on People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), we reject appellant's argument and his reliance on Oganesyan.
In Oganesyan, supra, 70 Cal.App.4th 1178, the defendant was convicted of two counts of murder. (Id. at pp. 1180-1181.) In one count, he was sentenced to an indeterminate term for second degree murder, and, in the other count, he received an LWOP sentence. He received additional terms in both counts based on firearm enhancements. (Id. at p. 1181.) On appeal, the Attorney General of California argued that the trial court should have imposed a parole fine pursuant to section 1202.45. The Court of Appeal disagreed. (Oganesyan, at p. 1181.) Oganesyan determined that it was extremely unlikely a parole fine would ever be recouped based on the sentences imposed. In addition, the defendant's sentence did not allow for parole. As such, the trial court did not err in failing to impose a parole fine. (Id. at pp. 1184-1186.)
In contrast, in Brasure, supra, 42 Cal.4th 1037, the defendant was sentenced to death for special circumstances murder. He was also convicted on other counts resulting in a determinate prison sentence of two years eight months. (Id. at p. 1049.) On appeal, the defendant argued that his parole fine imposed but suspended under section 1202.45 was unauthorized. (Brasure, at p. 1075.) The Supreme Court disagreed. Although the defendant was unlikely to ever serve any part of the parole, his determinate sentence had a parole period, which carried a suspended parole fine. The high court determined that the defendant "is in no way prejudiced by assessment of the fine, which will become payable only if he actually does begin serving a period of parole and his parole is revoked." (Ibid.) Brasure found Oganesyan distinguishable because that opinion did not involve a determinate term of imprisonment but rather an LWOP sentence for first degree special circumstance murder and an indeterminate life sentence for second degree murder. (Ibid.)
Here, appellant was sentenced to both an LWOP term and a consecutive aggregate determinate sentence of 17 years plus 25 years to life. Like in Brasure, although appellant is unlikely to ever serve any part of the parole, his determinate sentence has a parole period. (See § 1170, subd. (a)(3) [a defendant shall serve an applicable period of parole or other supervision as part of determinate sentencing].) By statute, appellant must first serve his determinate term before serving his indeterminate sentence. (§ 669, subd. (a).) As Brasure noted, appellant is not prejudiced by a parole fine, which will become payable only if he actually begins serving a period of parole and his parole is revoked. (Brasure, supra, 42 Cal.4th at p. 1075.)
Appellant argues that Brasure is distinguishable from the present matter because the defendant in Brasure was sentenced to death and not LWOP. This is a distinction without a difference. We disagree that we should disregard Brasure in favor of Oganesyan, supra, 70 Cal.App.4th 1178.
Based on Brasure, the trial court did not err in imposing the parole fine pursuant to section 1202.45. Accordingly, this claim fails.
IX. At Resentencing The Trial Court Shall Exercise Its Discretion Regarding The Firearm Enhancements.
At the time of appellant's sentencing in this matter, section 12022.53 imposed a mandatory additional and consecutive prison sentence of 25 years to life when a defendant personally and intentionally discharged a firearm and caused great bodily injury during the commission of certain enumerated felonies. (Former § 12022.53, subd. (d).) On October 11, 2017, the Governor approved Senate Bill No. 620, which amended sections 12022.5 and 12022.53. Under the amendments, a trial court now has discretion to strike or dismiss a firearm enhancement otherwise required to be imposed at the time of sentencing pursuant to these sections. (§§ 12022.5, subd. (c); 12022.53, subd. (h).) These statutes expressly apply this authority "to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
On December 8, 2017, we asked the parties to address Senate Bill No. 620 and whether it was necessary or not, based on the sentencing record in this matter, for the trial court to exercise this new discretion. Via supplemental letter briefs, appellant generally asserts that remand is still necessary for the court to exercise its discretion. Respondent generally argues that remand is unnecessary because no reasonable court would strike appellant's firearm enhancements under the circumstances of this case. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [finding it unnecessary to remand matter for trial court to consider retroactive discretionary authority].)
To support its position, respondent notes that, at sentencing, the trial court stated it hoped appellant was never released from custody, he did not deserve any leniency, and he did not deserve to be released. The trial court further said, "What you did was a cold calculated vicious murder and you should be incarcerated for the rest of your life."
Although the trial court's comments strongly suggest it will not strike or dismiss the firearm enhancements otherwise required to be imposed, we decline to make any such presumptions. Resentencing is already required in this matter. Moreover, the amendments to sections 12022.5 and 12022.53 represent a substantial change in the sentencing law vis-à-vis firearm enhancements. As such, in light of the remand already ordered and in the interests of justice, we direct the trial court to exercise its statutory discretion. (See § 1260 [an appellate court may remand the cause to the trial court for further proceedings as may be just under the circumstances].)
We take no position regarding how the trial court should exercise its discretion. --------
DISPOSITION
We vacate the sentence enhancements in counts 1, 2 and 5 based on the alleged prior serious felony conviction (§ 667, subd. (a)(1)), the alleged prior prison terms (§ 667.5, subd. (b)), and the alleged prior strike conviction (§§ 1170.12, subds. (a)-(d)/667, subds. (b)-(i)). This matter is remanded to the trial court for resentencing consistent with this opinion. Prior to resentencing, the trial court shall give the prosecution, as soon as the matter can be heard, an opportunity to try appellant on the sentence enhancements. If the prosecution does not try appellant on the alleged sentence enhancements, the trial court shall dismiss the appropriate allegation(s) and resentence appellant accordingly. In any event, the court shall also exercise its discretion at resentencing pursuant to section 12022.53, subdivision (h), and determine whether it should strike or dismiss the firearm enhancements otherwise required to be imposed pursuant to section 12022.53, subdivision (d). Following resentencing, the trial court shall forward amended abstracts of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
MEEHAN, J.