P. v. Aguilar

 

 

 

 

 

 

Filed 9/18/13  P. v. Aguilar CA2/6

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
SIX

 

 
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THE PEOPLE,       Plaintiff and Respondent,   v.   GREGORIO AGUILAR,       Defendant and Appellant.

2d Crim. No. B244041 (Super. Ct. No. 2009007662) (Ventura County)

 

                        Gregorio
Aguilar appeals from the judgment entered after a jury convicted him of href="http://www.fearnotlaw.com/">first degree murder with the special
circumstance finding that the murder was committed during an attempted robbery
(count 1; Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(17)(A))href="#_ftn1" name="_ftnref1" title="">[1], href="http://www.mcmillanlaw.com/">attempted second degree robbery (count
2; 664/211), second degree robbery (count 3; § 211), and attempted second
degree robbery (count 4; §§ 664/211).   
The jury found that appellant personally and intentionally discharged a
firearm causing death in counts 1 and 2 (§ 12022.53, subd. (d)), and personally
used a firearm in counts 3 and  4 (§
12022.53, subd. (b)).  Appellant was
sentenced to a determinate term of 17 years state prison on counts 3 and 4,
and, on count 1, to a consecutive indeterminate term of life without
possibility of parole plus 25 years to life on the firearm use enhancement.href="#_ftn2" name="_ftnref2" title="">[2]  

            Appellant contends that his sentence
of life without parole for special circumstance first-degree murder, plus 25
years to life on the firearm use
enhancement (§12022.53, subd. (d)) violates California's
multiple conviction rule and federal double jeopardy principles.  We affirm with directions to issue an amended
abstract of judgment.

Facts

                        During
the early morning hours of December
28, 2008, appellant entered the Circle K Market in Ventura
with a masked man, demanded money, and shot and killed the store clerk, Sean
Odle, with a .22 caliber rifle.  (Counts
1 and 2.) 

            Shortly
before midnight on December 11, 2008, appellant robbed
Marisela Martinez, a cashier at the Shell Gas Station in Fillmore.  Wearing a bandanna, gloves and a beanie,
appellant pointed a rifle at Martinez,
demanded money, and fled with $300 to $400. 
(Count 3.) 

            Shortly
before midnight on December 12, 2008, appellant
attempted to rob Touni Ziab at the Central Liquor and Market in Santa
Paula with a rifle. 
(Count 4.)  Wearing a  bandanna and dark hooded sweatshirt,
appellant confronted Ziab and said “Give me all the fucking money.  I ain’t playing around with you."   Appellant fled after Ziab called out for his
brother-in-law to get a gun and call 911. 
(Count 4).

            In
2009, appellant told a police informant, Adam Solorio, that "I killed my
first man" and that he committed the Ventura,
Fillmore and Santa Paula
crimes. 

Double Jeopardy

                        Appellant
asserts that the sentence of life without possibility of parole for special
circumstance first degree murder, plus 25 years to life on the firearm use
enhancement violates federal principles of double jeopardy and the California
multiple conviction rule embodied in People v. Ortega (1998) 19 Cal.4th
686, 692-694 and People v. Pearson (1986) 42 Cal.3d 351, 355,
359-360).  The argument is premised on
the theory that the section 12022.53, subdivision (d) firearm enhancement
(i.e., use and discharge of the rifle resulting in death) requires proof that
appellant proximately caused the victim's death, a factual element necessarily
subsumed within the elements of murder. 
Appellant acknowledges that the California Supreme Court rejected
similar arguments in People v. Sloan (2007) 42 Cal.4th 110, 115-124 (Sloan),
and People Izaguirre (2007) 42 Cal.4th 126, 130-134 (Izaguirre)
but believes the cases were wrongly decided. 
We are bound by the rulings of our Supreme Court (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and reject appellant's
contention.

                        With
respect to double jeopardy, " '[t]he Double Jeopardy Clause "protects
against a second prosecution for the same offense after acquittal.  It protects against a second prosecution for
the same offense after conviction.  And
it protects against multiple punishments for the same offense. [Citation.]'
[Citation.]"  (Sloan, supra, 42 Cal.4th at pp.
120-121.)  The first two categories of
double jeopardy protection  do not apply
because appellant's conviction and punishment for the murder and firearm
enhancement occurred in a single unitary proceeding.  (Id., at p. 123.)  "We are not here concerned with a
retrial or 'second prosecution,' but instead with a unitary trial in which
section 954 expressly permits conviction of more than one crime arising out of
the same act or course of conduct." 
(Izaguirre, supra, 42 Cal.4th at p. 134.)

                        With
respect "to the third category of double protection - the prohibition of
'multiple punishments for the same offense' [citation] - the [United States]
Supreme Court has made clear that '[t]he [Double Jeopardy] Clause protects only
against the imposition of multiple criminal punishments for the same offense
[citations] . . . and then only when such occurs in successive proceedings, [citation]'.
[Citation.]"  (Sloan, >supra,
42 Cal.4th at p. 121, quoting Hudson v. United States (1997)
522 U.S. 93, 99 [139 L.Ed.2d 450, 459].) 
Federal law, like California statutory law,  recognizes that cumulative punishment may be
imposed under two statutes, even where they proscribe the same conduct, if the
legislature has specifically authorized cumulative punishment. (Sloan, supra, 42 Cal.4th at p. 121, citing Missouri v. Hunter (1983) 459
U.S. 359, 368-369 [74 L.Ed.2d 535, 543-544].) 

            The California Legislature
has provided that the punishment on the section 12022.53, subdivision (d)
firearm use enhancement shall be an additional and consecutive term of
imprisonment to murder.  Because it is
additional punishment, it does not violate the href="http://www.fearnotlaw.com/">double jeopardy provision against double
punishment.  (Izaguirre, supra, 42 Cal.4th at pp. 128-134;.
Sloan, supra, 42 Cal.4th at
p. 123; Plascencia v. Alameida (9th Cir. 2006) 467 F.3d 1190,
1204.) 

Multiple
Conviction Rule

            Appellant
contends that the true finding on the section 12022.53, subdivision (d) firearm
enhancement violates California's multiple conviction rule which prohibits
multiple convictions of necessarily included offenses.  The argument was rejected by our state
Supreme Court in Izaguirre, supra, 42
Cal.4th at pages 128-129 and Sloan, supra ,42 Cal.4th at page 121, a companion
case.  "The holding in Sloan
is consistent with this court's recent decision in People v. Reed (2006)
38 Cal.4th 1224 . . . , which held that the legal elements test, rather
than the accusatory pleading test, should be used in determining whether
conviction of a charged offense is barred under the [multiple conviction] rule.  Since enhancements are not legal elements of
the offenses to which they attach, they are not considered in defining
necessarily included offenses. . ." (Izaguirre, supra, 42 Cal. 4th. at p. 128.) 

            The
distinction between "offenses" and "enhancements" is based
on People v. Walcott (1983) 34 Cal.3d 92, which holds that for purposes
of determining whether an offense is included in a charged offense, an
enhancement allegation is not to be considered. 
(>Id., at pp. 100-101.)  The Walcott rule was reaffirmed by our
state supreme court in People v. Reed, supra, 38 Cal.4th 1224, 1231, and Sloan:  "[E]nhancements are neither recognized
nor considered in determining whether the defendant can be convicted of
multiple charged crimes based on necessarily included offenses . . .
."  (Sloan, supra,  42 Cal.4th at p. 114.)

                        The
rule prohibiting multiple convictions requires that the statutory elements of
the greater offense include all the statutory elements of the lesser offense. (People
v. Reed, supra, 38 Cal.4th at pp. 1228-1229.)  Similarly, in determining whether two
offenses are the "same offense" for double jeopardy purposes, courts
look to see if the offenses require proof of a fact that the other does not.  (Blockburger v. United States (1932)
284 U.S. 299, 304 [76 L.Ed. 306, 309] (Blockberger).)  Murder and the firearm use enhancement are
not the "same offense" or a lesser included offense of the other
under Walcott, Reed, or Blockburger.  Murder requires malice aforethought but the
firearm use enhancement does not.  A
section 12022.53, subdivision (d) firearm enhancement requires use of a firearm
but murder does not.

Apprendi

                        Appellant
argues that Wolcott has been superseded by Apprendi v. New Jersey
(2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and its progeny
(Sattazahn v. Pennsylvania (2003) 537 U.S. 101 [154 L.Ed.2d 588]
and Ring v. Arizona  (2002) 536
U.S. 584 [153 LEd.2d 556].)  A similar
argument was rejected in Izaguirre.  There, defendant
argued that his convictions for two firearm enhancements should have been
stricken because they were necessarily included in his conviction for first
degree murder with a drive-by shooting special circumstance.  (Izaguirre, supra, 42 Cal.4th at pp.
129–130, 132.)  The Izaguirre court concluded that Apprendi is inapposite to the question of whether
enhancements must be considered in defining necessarily included offenses for
purposes of the multiple conviction rule. 
(Izaguirre, supra, 42 Cal.4th at p. 133.)  "To the extent the firearm-related
enhancements in question stood to increase punishment, Apprendi's
holding, grounded on the Fifth Amendment
right to due process and Sixth Amendment right to jury trial, requires only
that they be tried to a jury and found true beyond a reasonable doubt, which
they were."  (Ibid.)  

                        The
court in Izaguirre rejected the argument that "conduct enhancements
are the functional equivalent of completed offenses or convictions for purposes
of the multiple conviction rule . . . ," noting it has no support in case
law.  (Id. at p. 134.)
"Conduct enhancements cannot be imposed standing alone as additional
punishment.  By definition, an
enhancement is 'an additional term of imprisonment added to the base term.'  [Citations.] 
For that reason alone, an enhancement cannot be equated with an offense.
[Citation.]"  (Ibid.) 

Conclusion

                        Based
on the guilty verdict and true finding on the section 12022.53, subdivision (d)
firearm enhancement, the trial court sentenced appellant to life without possibility
of parole, plus 25 years to life on count 1. 
The argument that the sentence violates the multiple conviction rule and
constitutional protections against double jeopardy has been rejected by the
California Supreme Court (Sloan, supra,
42 Cal.4th 114, 120-121; Izaguirre, supra, 42 Cal.4th at pp. 128-129) and the United States
Supreme Court (Hudson v. United States, supra, 522 U.S. at
pp. 95-96 [139 L.Ed.2d at 459]; Missouri v. Hunter, supra, 459 U.S. at p. 368 [74 L.Ed.2d at pp. 543-544].)  Under
the doctrine of stare decisis, these cases are dispositive  (Auto Equity Sales, Inc. v. Superior Court
supra,
57 Cal.2d at p. 455.)href="#_ftn3"
name="_ftnref3" title="">[3] 

            The
abstract of judgment fails to reflect that appellant was sentenced to 25 years
to life on the Count 1 firearm enhancement. 
The clerk of the superior court is ordered to prepare and forward to the
Department of Corrections and Rehabilitation an amended abstract of judgment
reflecting that appellant was sentenced on count 1 to life without possibility
of parole, plus 25 years to life on the section 12022.53, subdivision (d)
firearm enhancement.  The judgment in all
other respects is affirmed.

            NOT TO
BE PUBLISHED.

 

 

                                                                                                YEGAN,
J.

 

 

We
concur:

 

 

                        GILBERT, P.J.

 

 

                        PERREN, J.



Charles W. Campbell, Judge

 

Superior Court County of Ventura

 

______________________________

 

 

                        Diane E. Berley, under
appointment by the Court of Appeal, for Defendant and Appellant. 

 

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Tannnaz Kouhpainezhad, Deputy Attorney General, for Plaintiff
and Respondent.