Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA088861. Paul A. Bacigalupo, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Defendant Joel Williams was convicted by a jury of burglary, attempted robbery and assault with a firearm. The jury found true allegations that Williams committed the offenses for the benefit of a criminal street gang (Pen. Code, § 186.22) and personally used a firearm in the commission of the offenses. In a prior appeal, this court reversed the gang enhancements based on insufficient evidence, and concluded that the trial court should have imposed a firearm enhancement for the burglary count under Penal Code section 12022.5 instead of section 12022.53.
People v. Williams (Mar. 11, 2009, B202540) [nonpub. opn.].
All further statutory references are to the Penal Code.
Williams challenges the sentence the trial court imposed on remand. He contends the trial court exceeded the scope of this court’s directions when it resentenced him to a different base term on the burglary count instead of merely dismissing the gang enhancement and selecting a term for the firearm enhancement. He also contends the trial court abused its discretion when it imposed the upper term on the burglary count based on the same fact as the firearm enhancement. We reject the former but agree with the latter contention. Accordingly, we remand for resentencing.
BACKGROUND
I. TRIAL AND INITIAL SENTENCING
An information charged Williams with first degree burglary (§ 459; count 1), attempted first degree robbery (§§ 211, 664; count 2) and assault with a firearm (§ 245, subd. (a)(2); count 3). The information alleged that Williams committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)), and that Williams personally used a firearm in the commission of the offenses (§ 12022.53, subd. (b), on counts 1 and 2; § 12022.5 on count 3). The information also alleged that Williams suffered a prior juvenile adjudication for robbery. (§§ 667, 1170.12).
In the prior appeal, this court stated the evidence presented at trial, in pertinent part, as follows:
“On December 25, 2006, Troyell Wideman, a college student, was talking with his girlfriend on the porch of her home, located within the Jordan Downs Housing Project (Jordan Downs) in Los Angeles. Defendant [Williams] walked by Wideman and his girlfriend and returned 15 minutes later demanding that Wideman relinquish a gold ‘Rolex’ necklace that Wideman was wearing around his neck. Wideman refused, and defendant reached into his pocket. Wideman ran into his girlfriend’s house, and defendant followed him inside. When they were approximately five feet apart, defendant pointed a semi-automatic handgun directly at Wideman and told Wideman he had 10 seconds to give defendant the necklace. As Wideman stalled for more time, Sabrina Bradford (the mother of Wideman’s girlfriend and an occupant of the home) entered the room. Bradford attempted to wrestle the gun from defendant, and Wideman joined in her efforts. The gun, which was pointed in Wideman’s direction, fired and then fell to the ground. Defendant picked up the gun and ran away. No one was injured.
“Defendant’s exact words were: ‘I like that Rolex. Let me have it.’”
“At the time, Bradford was the long-term girlfriend of ‘Robert, ’ an older, well-respected member of the Grape Street Crips. Robert lived with Bradford in her home and is the father of Wideman’s girlfriend.”
“Bradford called the police, and two officers arrived at her home 30 minutes later. Wideman provided the officers with a physical description of defendant. Approximately 10 minutes later, the officers detained defendant at Jordan Downs. When the officers asked Wideman to identify defendant as the assailant, Wideman stated to one of the officers: ‘There’s a lot of those Grape Street guys around here. They know who I am. They know my family. They’ll shoot me. I won’t ID him. That’s not him.’ Two days later, at his home, Wideman identified defendant as the assailant from a six-pack photographic display. Wideman had known defendant, who was also a resident of Jordan Downs, for at least six years and occasionally spoke with him. Wideman identified defendant as a member of the Grape Street Crips, a gang that operates within Jordan Downs.” (People v. Williams, supra, B202540, pp. 2-3.)
The prosecution also presented evidence in support of the gang enhancement, which we do not recite because it is not pertinent to the issues on appeal.
The jury found Williams guilty of the charged offenses and found the gang and firearm special allegations to be true. The trial court found that Williams had suffered a prior juvenile adjudication that qualified as a felony “strike” offense. On count 1 for first degree burglary, the court sentenced Williams to the middle term of four years, doubled to eight years based on the prior strike, and imposed a 10-year gang enhancement and a 10-year firearm enhancement, for a total of 28 years. On count 2 for attempted first degree robbery, the court selected the middle term of two years, doubled to four years based on the prior strike, and imposed a 10-year gang enhancement and a 10-year firearm enhancement, for a total of 24 years. On count 3 for assault with a firearm, the court selected the middle term of three years, doubled to six years based on the prior strike, and imposed a 10-year gang enhancement and a four-year firearm enhancement, for a total of 20 years. The court stayed the sentence on counts 2 and 3.
II. PRIOR APPEAL AND RESENTENCING
Williams appealed. This court concluded that the gang enhancements were not supported by substantial evidence and the firearm enhancement on the burglary count should have been imposed under section 12022.5 instead of section 12022.53. Burglary is not one of the enumerated felonies to which section 12022.53 applies. (§ 12022.53, subd. (a).) This court rejected Williams’s contention that a juvenile adjudication cannot qualify as a prior strike.
The matter was remanded to the trial court with the following disposition and directions: “The finding under section 186.22 that defendant [Williams] committed the instant offenses for the benefit of a criminal street gang is reversed, and the matter is remanded to the trial court with directions to dismiss this finding and recalculate defendant’s period of confinement. On remand the juvenile [sic] court is further ordered to impose a firearm enhancement on the burglary count pursuant to section 12022.5 and to correct the clerical errors referenced above. In all other respects, we affirm the judgment.” (People v. Williams, supra, B202540, pp. 10-11.) The meaning and scope of this court’s directions are in dispute on appeal.
On remand, the trial court sentenced Williams to the upper term of six years on count 1 for first degree burglary, doubled to 12 years based on the prior strike, and imposed a 10-year firearm enhancement under section 12022.5, subdivision (a), for a total of 22 years. On count 2 for attempted first degree robbery, the court selected the middle term of two years, doubled to four years based on the prior strike, and imposed a 10-year firearm enhancement under section 12022.53, subdivision (b), for a total of 14 years. On count 3 for assault with a firearm, the court selected the middle term of three years, doubled to six years based on the prior strike, and imposed a four-year firearm enhancement under section 12022.5, subdivision (a), for a total of 10 years. The court stayed the sentence on counts 2 and 3.
The minute order and abstract of judgment incorrectly state that the firearm enhancement was imposed under section 12022.53. We direct the trial court to correct these errors.
The trial court ordered the Department of Corrections and Rehabilitation to recalculate Williams’s presentence custody credits. The abstract of judgment, however, does not reflect any such recalculation. Nor does the abstract of judgment reflect the correction of other clerical errors that this court directed the trial court to fix, as described below.
DISCUSSION
I. SENTENCING ON REMAND
A. Scope of This Court’s Directions
Williams contends that the trial court’s authority on remand was limited to dismissing the gang enhancements, imposing a firearm enhancement on count 1 and correcting clerical errors. He argues that the court did not have authority to “resentence” him on count 1 for first degree burglary and impose a different base term than it had imposed at the initial sentencing hearing. Williams is incorrect.
Among other things, this court directed the trial court to impose a firearm enhancement on the burglary count under section 12022.5. The court had erroneously imposed the enhancement under section 12022.53. On remand, the trial court was required to select a three, four or 10-year term for the enhancement. (§ 12022.5, subd. (a).) In making that determination, it was proper for the court to review the total term to be imposed on count 1 and to reconsider the base term. (See People v. Kelly (1999) 72 Cal.App.4th 842, 844-845; People v. Savala (1983) 147 Cal.App.3d 63, 70.) “A determinate sentence is one prison term made up of discrete components. When one of them is invalid, the entire sentence is infected.” (People v. Calderon (1993) 20 Cal.App.4th 82, 88.)
Williams points out that the disposition in the prior appeal does not include the word “resentence” in its directions to the trial court. Instead, it includes the phrase “recalculate defendant’s period of confinement.” Williams also notes that the disposition includes a reference to the “juvenile court” instead of the trial court. Latching on to this language, he likens this court’s directions to those that might be given in the context of a juvenile wardship adjudication. Williams has not correctly interpreted the disposition. The juvenile court reference was inadvertent and the use of the word “recalculate” was not intended to restrict the trial court’s authority to resentence Williams on the burglary count. On remand, it was proper for the trial court to revisit the base term on the burglary count in fashioning an appropriate sentencing package. (See People v. Kelly, supra, 72 Cal.App.4th at pp. 844-845.)
Williams also contends that the trial court’s sentence was imposed as “punishment” for his successful appeal and violates the prohibition against double jeopardy. (Cal. Const., art. I, § 15.) Given that the sentence imposed on remand is shorter than the sentence initially imposed, Williams’s claim lacks merit, and we need not address whether the trial court was restricted from imposing a greater sentence under the facts and circumstances of this case. (See People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311-1312.)
B. Reasons for Imposition of Upper Term on Burglary Count
Under section 1170, subdivision (b), a trial court has broad discretion in selecting the base term for an offense. (People v. Sandoval (2007) 41 Cal.4th 825, 845, 847.) The statute provides, in pertinent part: “In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (§ 1170, subd. (b).)
“The court shall state the reasons for its sentence choice on the record at the time of sentencing.” (§ 1170, subd. (c).) Here the trial court gave the following reasons for imposing the upper term on count 1 for first degree burglary: “[T]he crime involved the threat of great bodily injury and the defendant was armed with or used a weapon at the time of the commission of the crime.” As the court noted, both of its reasons are listed as circumstances in aggravation in California Rules of Court, rule 4.421. (Cal. Rules of Court, rule 4.421(a)(1) & (2).)
The People agree with Williams’s assertion that it was improper for the trial court to rely on Williams’s use of a firearm as a reason to impose the upper term on the burglary count. The court imposed the enhancement under section 12022.5 based on the same fact. “To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.” (Cal. Rules of Court, rule 4.420(c).)
The People note that, in imposing the upper term on the burglary count, the trial court stated that Williams was armed with or used a weapon. According to the People, “[o]ne could argue” that Williams’s use of the gun was separate from his possession of the gun, such that the trial court could impose the firearm enhancement based on use, and the upper term on the burglary count based on possession of the gun. We disagree with that argument. As listed in California Rules of Court, rule 4.421(a)(2), “armed with or used a weapon” is a single factor, and the court relied on the firearm use to impose the enhancement.
Williams and the People disagree as to whether the other reason the trial court stated for imposing the upper term-“the crime involved the threat of great bodily injury” -was proper. Williams argues that the court could not rely on this reason because the only way in which this particular first degree burglary involved the threat of great bodily injury was the use of the firearm, the same fact on which the court based the enhancement. The People argue that the threat of great bodily injury was “separate and apart” from the gun use. We agree with Williams.
The parties do not take issue with this court’s account of the facts of the crime, as stated in the opinion in the prior appeal and recited above. Based on these facts, the only threat of great bodily injury was the gun use. When Williams first asked Wideman to give up his necklace, Wideman refused. It was after Williams reached into his pocket, which can be interpreted as an indication that he was carrying a weapon, that Wideman ran inside the house. If there was some threat of great bodily injury other than the gun use, or the threat that is inherent in the crime of first degree burglary itself, it does not appear that Wideman perceived it, and it is not evident from the facts presented at trial.
The People argue that “the facts clearly showed a ‘threat of bodily harm’ created by [Williams] forcing his way into the home against the resistance of the victims [that] was a method of committing the burglary that was separate and apart from his arming and use of the gun.” We disagree. The fact that Williams followed Wideman into the house after Wideman ran does not by itself indicate that this crime involved a threat of great bodily injury. The threat of great bodily injury was that Williams revealed he had a gun. (See People v. Bennett (1981) 128 Cal.App.3d 354, 359 [threat of great bodily harm in robbery “was part and parcel of the gun use itself”]; People v. Alvarado (1982) 133 Cal.App.3d 1003, 1028 [great violence/threat of great bodily harm finding was not proper where “it was only the presence of the firearms that justified a fact finding that there was threat of great bodily harm” in the attempted robbery and burglary].)
The People assert that the trial court’s imposition of the upper term based on the threat of great bodily injury was proper under the facts and circumstances of this particular crime because “what commenced as a street robbery turned into a home invasion robbery, i.e., the burglary.” Williams was convicted of first degree burglary (“burglary of an inhabited dwelling house”). (§§ 459 & 460, subd. (a).) A trial court cannot impose an upper term based on the generic threat of harm that is inherent in every first degree burglary. (See Cal. Rules of Court, rule 4.420(d) [“A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term”].)
Because the trial court imposed a firearm enhancement based on the gun use, it was improper to impose the upper term on the burglary count based on that same fact, and the trial court abused its discretion. (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c); People v. Sandoval, supra, 41 Cal.4th at page 847 [“a trial court will abuse its discretion under [section 1170] if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision”].) The trial court did not state any other reason for imposing the upper term on the burglary count. The People do not reference any valid reason either. Accordingly, we remand the matter for resentencing on the burglary count (count 1). On remand, the trial court may again impose the upper term on this count if it can state a proper reason for imposing the upper term that is separate and apart from the reasons it uses in imposing any enhancement.
In imposing the upper term on the firearm enhancement, the trial court stated as its reason that Williams’s “prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.” (See Cal. Rules of Court, rule 4.421(b)(2).)
II. PRESENTENCE CUSTODY CREDITS
Williams contends, and the People agree, that he is entitled to additional presentence custody credits under section 2900.1 for the actual days he spent in custody up to the time of resentencing. Because we are remanding the matter for resentencing, Williams may direct his request for correction of such credits to the trial court.
III. CLERICAL ERRORS
In the prior appeal, this court directed the trial court to correct clerical errors in the abstract of judgment. They were not corrected. Thus, we recite that portion of the prior opinion here:
“We note the following clerical errors that the trial court should also correct upon remand: (1) The abstract of judgment lists as an ‘enhancement’ the additional term imposed under section 1170.12. ‘The three strikes law “‘is the articulation of a parallel sentencing scheme for specifically described recidivists.’” [Citation.] It is not an enhancement law.’ (People v. Fowler (1999) 72 Cal.App.4th 581, 584.) Accordingly, the court should strike the enhancement under section three, but leave section four intact, which shows that defendant’s principal term is doubled pursuant to section 1170.12. (2) Although the court imposed the middle term on the attempted robbery count [count 2], the abstract of judgment indicates that the court imposed the lower term....” (People v. Williams, supra, B202540, p. 9, fn. 7.)
We also address the following additional clerical errors that the parties have noted in this appeal. Both the abstract of judgment and the minute order from the August 14, 2009 sentencing hearing state that the trial court imposed a firearm enhancement on count 1 for first degree burglary under section 12022.53, subdivision (b). As directed by this court, the trial court imposed that enhancement under section 12022.5, subdivision (a). On remand, the trial court should correct these errors in the abstract of judgment and the minute order.
DISPOSITION
The sentence is vacated and the cause remanded for resentencing on count 1 for first degree burglary and for correction of clerical errors as follows: (1) correct section 1 of the abstract of judgment to reflect that Williams was sentenced to the middle term on count 2 for attempted robbery, and not the lower term; (2) correct section 2 of the abstract of judgment to reflect that the enhancement on count 1 for first degree burglary was imposed under section 12022.5, subdivision (a), and not 122022.53, subdivision (b); (3) in section 3 of the abstract of judgment, strike the reference to “enhancements” under section 1170.12, but leave section 4 intact which shows that Williams’s principal terms were doubled under section 1170.12; and (4) correct the minute order from the August 14, 2009 sentencing hearing to reflect that the enhancement on count 1 for first degree burglary was imposed under section 12022.5, subdivision (a), and not 122022.53, subdivision (b). In all other respects, the judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.