Filed 8/19/26 P. v. Berhe CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A173123
v.
AMAN TESFAY BERHE, (Sonoma County
Super. Ct. No. 24CR04670)
Defendant and Appellant.
On June 4, 2024, defendant Aman Berhe approached two men eating
lunch on a bike trail in Santa Rosa, told them “shut up [or] I’ll kill you,
motherfucker,” and held them at gunpoint for several minutes before walking
away. After being shown a single photo by the police at the scene, both men
identified Berhe as their assailant. Later that afternoon, Berhe was arrested
at his nearby storage unit, which was found to contain ammunition and
methamphetamine. Several days after that, police discovered that the door
to an adjacent storage unit had been forced open and a loaded firearm left
just inside.
In January 2025, Berhe was tried by jury and found guilty of two
counts of assault with a semiautomatic firearm, criminal threats, unlawful
possession of a controlled substance while armed, possession of a firearm by a
felon, possession of ammunition by a felon, and misdemeanor possession of
methamphetamine. The trial court sentenced Berhe to 19 years in prison on
1
the first six counts, but neglected to pronounce sentence on the seventh.
Berhe argues that the single-photo identification procedure used by police
was unduly suggestive and unreliable, and that the evidence was insufficient
to support his convictions for possession of a firearm and possession of a
controlled substance while armed. We requested supplemental briefing on
the failure to pronounce a sentence on the seventh count and the parties
agree that such failure was error requiring remand. We thus affirm the
judgment of conviction, but vacate the sentence and remand for a full
resentencing.
BACKGROUND
The Bike Trail Incident
On June 4, 2024, Angel P.–S. and Elki P.1 were eating lunch on a bike
trail in Santa Rosa. As they did so, a man they did not know walked past
them while “talking to himself,” and then stopped about 10 feet away. The
man was wearing a small black backpack across his chest with a “white line”
on it. He turned around, took “five steps” back toward Angel and Elki, told
them to “shut up,” and then twice “I’ll kill you, mother fucker.” The man
then opened the backpack, pulled out a black or gray2 nine-millimeter
firearm, and “cocked it.” Angel and Elki raised their hands over their heads,
and the man kept the firearm pointed at them without saying anything for
three or four minutes.3 He then lowered the firearm, tucked it into his pants,
and walked away.
1 Because the men are related and have similar last names, we will refer
to them by their first names for clarity.
2 At trial, Elki described the gun as gray, whereas Angel described it as
black.
3 Or, according to Elki, for “one minute to two minutes.”
2
The 911 Call and Arrest
Angel and Elki immediately called 911 and spoke to the dispatcher
through a Spanish interpreter. They described their assailant as Black; “full
of tattoos”; wearing a white shirt, black shorts, and a “black cap”; and
carrying a “tiny little backpack . . . close to his chest.” The firearm was gray
and “look[ed] like a nine millimeter.”
At 2:24 p.m., Santa Rosa Police Officer Jeff Zuniga responded to the
911 call. Officer Zuniga located Angel and Elki and spoke to them for five or
six minutes, during which time they “gave some updated information
regarding face tattoos” and he “put that out over the radio.” He then
returned to his patrol vehicle in order to continue searching for the suspect.
As he was driving away, Officer Zuniga received a call from Officer
Vercelli, also of the Santa Rosa Police Department, who had heard the
broadcast made in response to the 911 call. Officer Vercelli told Officer
Zuniga to “look up Aman Berhe” because he “matched the description,” “has a
face tattoo,” and Officer Vercelli had “seen him around the area that week.”
Officer Zuniga accessed a governmental photo of Berhe from January 2024,
“snapped the photo with [his] department-issued cell phone,” and drove back
to Angel and Elki. When Officer Zuniga showed Angel and Elki Berhe’s
photo and asked, “Does that look like him?”, they “became very excited” and
said, “Yeah.”4
Around 4:45 p.m., Officer Cardenas of the Santa Rosa Police
Department called Susan Goodman, the manager of nearby BuxBear Storage,
4 A video of this second interaction was captured on Officer Zuniga’s
body-worn camera and entered into evidence as the People’s Exhibit 9. The
transcript indicates the video was timestamped at 2:43 p.m.
3
and asked whether Berhe was on the property.5 Berhe had been renting a
storage unit at BuxBear since late February 2024, and Goodman was
“[p]retty familiar” with him because he was there “[a]lmost every day.” She
“was able to tell [Officer Cardenas] that, yes, [Berhe] was at the property at
the time.”6
Three to five minutes later, Officer Zuniga and several other officers
responded to BuxBear Storage, set up a perimeter around the building
containing Berhe’s storage unit, and ordered him to “come out with his hands
on top of his head” using the loudspeaker of a patrol vehicle. After what
Officer Sergio Cardenas Castillo would later estimate, based on footage from
his body-worn camera, was “approximately four minutes,” Berhe exited the
building—shirtless—and was placed under arrest. Officers later searched
Berhe’s storage unit, where they located a black satchel or backpack, a white
t-shirt, a plastic baggie containing ten, .40-caliber Smith and Wesson bullets,
and another plastic baggie containing methamphetamine.
June 12 Discovery of the Firearm
On June 12, Goodman cut the lock off of Alejandro Garcia’s storage unit
at BuxBear because Garcia had lost his keys. Garcia’s unit was directly
across the hall from Berhe’s, and according to BuxBear’s records, Garcia had
last entered it on May 19. After Goodman cut off the lock, Garcia entered his
unit and immediately found a silver and black nine-millimeter pistol “directly
5 BuxBear storage is between half and three-quarters of a mile from
where Berhe held Angel and Elki at gunpoint.
6 BuxBear Storage had several surveillance cameras, and BuxBear’s
tenants had personal access codes used to enter and exit through the gates of
the property, although it was possible to do both without using a code.
4
on the ground, right in front of the door.” Goodman shut Garcia’s unit and
called 911.
Officer Zuniga responded to Goodman’s 911 call, and observed that the
door to Garcia’s unit—which was “[v]ery flimsy”—had been “pulled apart” on
the hinge side. Officer Zuniga retrieved the pistol and determined that it was
loaded and “ready to fire,” with four rounds in the magazine and one in the
chamber.7
The Charges
On June 6, the Sonoma County District Attorney filed a complaint,8
and on December 13, the operative first amended information, charging
Berhe with two counts of assault with a semiautomatic firearm (Pen. Code,9
§ 245, subd. (b)) (counts 1 and 2), criminal threats (§ 422, subd. (a)) (count 3),
possession of a controlled substance while armed with a firearm (Health &
Saf. Code, § 11370.1, subd. (a)) (count 4), possession of a firearm by a felon
(§ 29800, subd. (a)(1)) (count 5), possession of ammunition by a felon (§ 30305,
subd. (a)(1)) (count 6), and misdemeanor possession of a controlled substance,
to wit, methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 7).
With respect to counts 1, 2, and 3, the information alleged that Berhe had
personally used a firearm during the commission of the offenses (§ 12022.5,
subd. (a)). The information also alleged ten circumstances in aggravation
pursuant to California Rules of Court, rule 4.421.
7 Officer Zuniga later had the pistol swabbed for DNA, but the results
were not yet available at the time of trial.
8 The original complaint did not include the counts of criminal threats
and possession of a controlled substance while armed.
9 Further undesignated statutory references are to the Penal Code.
5
The Motions Challenging the Photo Identification
At the preliminary hearing held on August 1, both Angel and Elki
identified Berhe as their assailant.
On August 28, Berhe moved to set aside the then-operative complaint
pursuant to section 995, arguing that Angel and Elki’s in-court identification
at the preliminary hearing was the product of an unduly suggestive out-of-
court identification procedure because Officer Zuniga had showed Angel and
Elki only a single photograph.10
On September 5, the prosecution filed opposition to the motion, and
after a hearing on October 3, the trial court denied it. While acknowledging
that Officer Zuniga had not followed the “ideal procedure,” the trial court
observed that Angel and Elki’s descriptions of their assailant during their
911 call, and when speaking to Officer Zuniga, were “consistent” with
Berhe’s; that the incident took place in the middle of the afternoon, with both
victims able to observe their assailant for several minutes; that both men
testified that they “hadn’t made up their mind prior to seeing the
photograph”; and that both “identified Mr. Berhe in court unequivocally.”
On December 13, as one of his motions in limine, Berhe moved to
exclude Angel and Elki’s in-and out-of-court identifications for the same
reasons given in his motion to set aside the complaint. The trial court denied
the motion, concluding that the jury could consider the identifications, not for
their truth, but in order to explain law enforcement’s subsequent conduct;
that the alleged procedural error in the identification procedure went to the
identification’s weight, not its admissibility; and that defense counsel would
10
The motion also argued that insufficient evidence supported the
charges of assault with a semiautomatic firearm and possession of a
controlled substance while armed.
6
be given “wide latitude” to conduct cross-examination with respect to the
identification procedure.
The Trial, Verdict, and Sentence
Trial took place on January 7, 8 and 9, 2025, and included the
testimony of Angel, Elki, Susan Goodman, and Officer Zuniga, some of which
we have already described. The defense did not present any evidence. After
deliberating for the better part of two days, the jury found Berhe guilty as
charged on all seven counts and found true the charged firearm
enhancements.
On February 11, a court trial was held on certain of the aggravating
circumstances, at the conclusion of which the trial court found three of those
factors true. (See Cal. Rules of Court, rule 4.421(b)(2), (3), & (4).)
On April 2, the trial court sentenced Berhe to an aggregate term of 19
years in prison, comprised as follows: the nine-year upper term on count 1,
followed by a consecutive 10-year term on the firearm enhancement; the
middle term of six years on count 2, followed by a consecutive four-year term
on the firearm enhancement;11 the middle term of two years on count 3,
followed by a consecutive four-year term on the firearm enhancement;12 the
11 With respect to count 2, the trial court’s oral pronouncement of
sentence was as follows: “[T]he defendant will be sentenced to the mid term
of six years plus the mid term of four years on the enhancement but to be run
concurrent with Count 1. So that would be six years on Count 2, concurrent
to the 19 years on Count 1.” The abstract of judgment reflects a six-year
sentence on count 2 and a four-year sentence on the enhancement, for a total
of 10 years, and we assume the trial court slightly misspoke in the second
quoted sentence, and meant ten total years on count 2, not six.
12 The firearm enhancement on count 3 is not reflected on the abstract of
judgment.
7
middle term of three years on count 4; and two-year middle terms on each of
counts 5 and 6, imposed and stayed pursuant to section 654.13
Berhe filed a notice of appeal.
DISCUSSION
Admission of the Out-of-Court Identification Did Not Violate
Due Process
Applicable Law and the Standard of Review
In People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 768
(Holmes), our Supreme Court explained the applicable law as follows: “To
determine whether the admission of identification evidence violates due
process, ‘we consider (1) whether the identification procedure was unduly
suggestive and unnecessary, and, if so, (2) whether the identification itself
was nevertheless reliable under the totality of the circumstances, taking into
account such factors as the opportunity of the witness to view the suspect at
the time of the offense, the witness’s degree of attention at the time of the
offense, the accuracy of his or her prior description of the suspect, the level of
certainty demonstrated at the time of the identification, and the lapse of time
between the offense and the identification.’ . . . .’ ” ’ A procedure is unfair if it
suggests in advance the identity of the person police suspect. (People v.
Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa).)”
“ ‘If, and only if, the answer to the first question is yes and the answer
to the second question is no, is the identification constitutionally unreliable.’ ”
(Ochoa, supra, 19 Cal.4th at p. 412.) In other words, “ ‘if the indicia of
reliability are strong enough to outweigh the corrupting effect of the police-
13 As we shall discuss, the trial court did not impose any sentence on
count 7, nor did the court or counsel for the parties make any mention of that
count at sentencing.
8
arranged suggestive circumstances, the identification evidence ordinarily will
be admitted, and the jury will ultimately determine its worth.’ ” (People v.
Wilson (2024) 16 Cal.5th 874, 901, quoting Perry v. New Hampshire (2012)
565 U.S. 228, 232.)
The defendant bears the burden of showing an identification procedure
was unreliable. (Ochoa, supra, at p. 412; People v. Avila (2009) 46 Cal.4th
680, 700.) And where, as here, the historical facts are not in dispute, we
independently review the trial court’s determination as to whether the
identification was admissible. (Holmes, supra, 12 Cal.5th at p. 768; People v.
Wilson, supra, 16 Cal.5th at p. 901; People v. Sanchez (2019) 7 Cal.5th 14,
36.)
Berhe Has Failed to Demonstrate that the Photo Identification
Was Unreliable Under the Totality of the Circumstances
Berhe’s argument begins by asserting that the photo identification
procedure used here was unduly suggestive because Officer Zuniga “used a
singular close-up screenshot of a booking photo . . . and asked, ‘Does that look
like him?’ ” He relies on section 859.7—requiring law enforcement agencies
to adopt regulations for conducting photo lineups that comply with certain
statutorily-enumerated best practices14—noting that Officer Zuniga did not
“separate the witnesses, have them take much time to examine the photo, nor
ask another officer to assist with the identification process.” He
acknowledges that “showing [a witness] a single photograph” is “not
necessarily unfair” (People v. Sanchez, supra, 7 Cal.5th at p. 36), but
somewhat sidewise suggests that doing so requires a showing of exigent
14 These include, for example, that “[a]ll eyewitnesses shall be separated
when viewing an identification procedure.” (§ 859.7, subd. (a)(8); see People
v. Lemcke (2021) 11 Cal.5th 644, 664–665.)
9
circumstances,15 and then suggests that no such circumstances were present.
Finally, he asserts that Angel and Elki’s degree of attention “was divided by
Elki being on the phone . . . and the stress of the scene in general,” going on
to point out minor inconsistencies in their trial testimony regarding Berhe’s
description and the details of the incident. We are not persuaded.
To begin with, section 859.7 does not avail Berhe, because it expressly
provides that “[n]othing in this section is intended to preclude the
admissibility of any relevant evidence or to affect the standards governing
the admissibility of evidence under the United States Constitution.” (Id.,
subd. (d).) And even accepting Berhe’s unsupported argument that exigent
circumstances were required to justify a single-photo identification,16 surely
they were provided by the prospect of a suspect armed with a semiautomatic
15 The only case cited in Berhe’s opening brief in support of this
proposition, People v. Odom (1980) 108 Cal.App.3d 100, is inapposite. There,
45 minutes after a shooting, the defendant was arrested nearby and shown
in-person to two eyewitnesses. (Id. at pp. 105–106.) The Court of Appeal
upheld the admission of their identifications of the defendant, and in the
course of doing so, observed that “the propriety of the prompt in-the-field
identification by an eyewitness has been upheld repeatedly by both state and
federal decisions,” and that the inherent suggestiveness in such
identifications was “offset by the likelihood that a prompt identification
within a short time after the commission of the crime will be more accurate
than a belated identification days or weeks later. . . . [T]he choice has
properly been made to permit in-the-field identifications, because the
immediate knowledge whether or not the correct person has been
apprehended is of overriding importance and service to law enforcement, the
public and the criminal suspect himself. [Citations.]” (Id. at p. 110.)
Obviously, Odom does nothing to support Berhe’s argument here.
16 (But see, e.g., Simmons v. United States (1968) 390 U.S. 377, 385
[where “serious felony had been committed” and “perpetrators were still at
large,” police were justified in using “ ‘one-man lineup’ ”]; In re Carlos M.
(1990) 220 Cal.App.3d 372, 387; People v. Nash (1982) 129 Cal.App.3d 513,
518.)
10
weapon, at large on a public bike trail in the middle of the day, holding
random members of the public at gunpoint for no apparent reason.
In any event, even assuming that the procedure used here was unduly
suggestive and unnecessary, Berhe has failed to demonstrate that it was
nevertheless unreliable “considering the totality of the circumstances.”
(Holmes, supra, 12 Cal.5th at p. 768.) As the trial court noted, both victims
had an “opportunity . . . to view the suspect at the time of the offense” that
took place over several minutes, in the middle of the afternoon, from only a
few feet away. (Ibid.) As for the “degree of [their] attention,” it would appear
to have been as undivided as possible given the circumstances—indeed, for
several minutes the three men did not say anything, and had every
opportunity to observe one another. (Ibid.) Immediately after the incident,
Angel and Elki gave a description—of a Black man, “full of tattoos,” wearing
a white shirt and black shorts, and carrying a small black backpack “close to
his chest”—that was consistent with Berhe’s, as well as with items later
found in his storage locker. (Ibid.) Finally, neither witness displayed any
uncertainty during the identification of Berhe’s photo,17 which identification
took place less than an hour after the incident. (Ibid.) In sum and in short,
17 Berhe argues with respect to this factor that by answering “ ‘yeah’ ”
when “Officer Zuniga ask[ed] if the photo ‘looked like’ the perpetrator,” Angel
and Elki did not make “a positive identification” but only indicated that
Berhe “looked similar.” The argument is fatuous. Consideration of “the level
of certainty demonstrated at the time of the identification” (Holmes, supra, 12
Cal.5th at p. 768), like all the other factors, counsels in favor of its admission.
But given our Supreme Court’s recent observation that “ ‘[t]here is [now] near
unanimity in the empirical research that “ ‘under most circumstances,
witness confidence or certainty is not a good indicator of identification
accuracy’ ” ’ ” (Ibid., quoting People v. Lemcke, supra, 11 Cal.5th at p. 665),
we emphasize that our conclusion would be the same with or without
consideration of this factor.
11
we conclude Berhe has failed to demonstrate that the identification was
unreliable under the totality of the circumstances, and thus no error appears
in its admission.
Substantial Evidence Supports Berhe’s Convictions on Counts 4
and 5
As noted, Berhe’s next argument is that insufficient evidence supports
the jury’s guilty verdicts on the counts of possession of a controlled substance
while armed and possession of a firearm by a felon (counts 4 and 5).
“ ‘ “In reviewing a challenge to the sufficiency of the evidence,
we . . . ‘examine the whole record in the light most favorable to the judgment
to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We
presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. [Citation.] . . . ‘[I]f the circumstances
reasonably justify the jury’s findings, the judgment may not be reversed
simply because the circumstances might also reasonably be reconciled with a
contrary finding.’ [Citation.] We do not reweigh evidence or reevaluate a
witness’s credibility.” ’ ” (People v. Ramirez (2022) 13 Cal.5th 997, 1117–
1118, quoting People v. Houston (2012) 54 Cal.4th 1186, 1215.) And under
this standard, we easily reject Berhe’s challenges to the jury’s guilty verdicts
on counts 4 and 5.
With respect to possession of a firearm by a felon (§ 29800, subd. (a)(1))
(count 5), Berhe’s argument is based entirely on his challenge to the evidence
identifying him as Angel and Elki’s assailant, as Berhe’s opening brief
concedes. Since we have rejected that challenge, Angel and Elki’s further
testimony that Berhe pointed a firearm at them for several minutes obviously
12
provides substantial evidence permitting a reasonable jury to conclude that
he was in possession of one.
With respect to count 4, possession of a controlled substance while
armed with a firearm, the prosecution had to prove that, “[w]hile possessing”
methamphetamine, Berhe “had a loaded, operable firearm available for
immediate offensive or defensive use.” (CALCRIM No. 2303; see Health &
Saf. Code, § 11370.1, subds. (a) & (c).)
The first part of Berhe’s argument is that substantial evidence does not
support a finding that the firearm with which he threatened Angel and Elki
was the same one later retrieved from Garcia’s storage unit. In support, he
notes that he was not connected to the firearm through its serial number, nor
through any DNA or fingerprint evidence, and argues that because “[a]nyone
with access to [BuxBear Storage] had access to every interior hallway,” “there
was nothing but speculation to support . . . a finding” that he was the person
who had forced Garcia’s door open and placed a firearm inside. Of course, for
the purposes of our review the record need not contain any particular type of
evidence supporting the jury’s findings (DNA, fingerprint, or otherwise), so
long as it is substantial, i.e., “ ‘reasonable, credible and of solid value.’ ”
(People v. Ramirez, supra, 13 Cal.5th at p. 1117.) And Berhe is simply wrong
that there was nothing but speculation connecting him to the firearm
recovered from Garcia’s locker—the circumstances of his arrest provide
ample substantial evidence supporting that connection.18
18 Berhe fails to even mention the evidence of these circumstances, which
alone is fatal to his argument. (See People v. Paredes (2021) 61 Cal.App.5th
858, 863 [where defendant does not “set forth in his opening brief all of the
material evidence on the disputed elements of the crime in the light most
favorable to the People . . . he cannot carry his burden of showing the
evidence was insufficient because support for the jury’s verdict may lie in the
evidence he ignores”].)
13
To briefly summarize, some of that substantial evidence was as follows.
Around 4:45 p.m., approximately two and a half hours after holding Angel
and Elki at gunpoint, Berhe arrived at BuxBear Storage and entered the
building containing his storage unit. Presumably unbeknownst to him, the
Santa Rosa Police were alerted to Berhe’s location, surrounded the building,
and made an announcement telling him to “come out with his hands” up.
Berhe did not emerge from the building for “approximately four minutes.”
After Berhe was arrested, a backpack was found in his storage unit,
matching Angel and Elki’s description of the one in which Berhe had earlier
been carrying a firearm. Several days later, the police discovered that the
“[v]ery flimsy” door to Garcia’s adjacent unit had been forced open, and a
loaded, operable firearm consistent with the description provided by Angel
and Elki left inside. From all this, the jury could reasonably deduce that
Berhe had heard the police order him to come out of the building, realized
that his arrest was both imminent and unavoidable, and then used the
ensuing four minutes to force open the door to Garcia’s unit and drop the
firearm inside. In short, substantial evidence supports the jury’s finding that
the loaded, operable firearm found in Garcia’s storage unit was the same
firearm Berhe used to threaten Angel and Elki.
The second part of Berhe’s argument is that even if he “at some point”
possessed the firearm found in Garcia’s unit, it was not “available for
immediate . . . use” (Health & Saf. Code, § 11370.1, subd. (c)) because “the
only evidence presented was that the firearm was located in Garcia’s storage
unit, physically separated from Berhe’s unit by a hallway and a door,” and
“[t]o access it from that location, Berhe would have had to enter the common
hallway and somehow retrieve the gun from Garcia’s locked unit.” The
argument fails.
14
To begin with, possession of a controlled substance can be actual or
constructive, with constructive possession existing “where a defendant
maintains some control or right to control contraband that is in the actual
possession of another.” (People v. Morante (1999) 20 Cal.4th 403, 417; see
CALCRIM No. 2303 [defendant does not have to “hold or touch something to
possess it” but only have “control over it or the right to control it, either
personally or through another person”].) Constructive possession “may be
established by circumstantial evidence and any reasonable inferences drawn
from such evidence,” and “may be imputed when the contraband is found in a
place which is immediately and exclusively accessible to the accused and
subject to his dominion and control.” (People v. Williams (1971) 5 Cal.3d 211,
215; see People v. Jenkins (1979) 91 Cal.App.3d 579, 584 [the “inference of
dominion and control is easily made when the contraband is discovered in a
place over which the defendant has general dominion and control,” including
his residence, automobile, and personal effects].)
Furthermore, possession of a controlled substance is “a ‘continuing’
offense, one that extends . . . throughout the entire time the defendant
asserts dominion and control over illegal drugs.” (People v. Bland (1995) 10
Cal.4th 991, 999; see People v. Palaschak (1995) 9 Cal.4th 1236, 1242
[defendant can be found guilty of possession of a controlled substance based
on past possession if it took place “during the period of the applicable statute
of limitations”].)
As noted, Goodman testified that Berhe had been renting a storage unit
at BuxBear since late February, that she saw him there “[a]lmost every day,”
and that he, like other tenants, had a personal access code to enter and exit
the property. From this testimony, the jury could reasonably conclude that
Berhe constructively possessed the methamphetamine later found in his
15
storage unit, not only at the moment of his arrest, but throughout the time
period ending at that moment and beginning when it came to be there. (See
People v. Bland, supra, 10 Cal.4th at p. 999; People v. Palaschak, supra, 9
Cal.4th at p. 1242.) And as we have already discussed, substantial evidence
likewise supports a further finding that Berhe had the firearm on his person
during the time period beginning around 2:24 p.m., when he had just pointed
it at Angel and Elki on the bike trail, until the moment he placed it into
Garcia’s storage unit, at some point (presumably, immediately) preceding his
arrest approximately two and a half hours later. From all this, the jury could
reasonably—and easily—conclude that during the afternoon on June 4,
“[w]hile possessing” methamphetamine, Berhe “had a loaded, operable
firearm available for immediate offensive or defensive use.” (CALCRIM No.
2303; see Health & Saf. Code, § 11370.1, subds. (a) & (c).) Accordingly, his
substantial evidence challenge to his conviction on count 4 must fail.
The Failure to Pronounce Sentence on Count 7 Requires
Remand for Resentencing
Our initial review of the record revealed that the trial court neglected
to sentence Berhe on count 7, misdemeanor possession of a controlled
substance. We requested and received supplemental briefing from the
parties on this issue, and they agree that the failure to pronounce sentence
on this count was error and that the appropriate remedy is remand for a full
resentencing. As do we.
“A trial court has a duty in both felony and misdemeanor cases to
pronounce sentence on every conviction. (§§ 12, 1202, 1445; People v.
Eberhardt (1986) 186 Cal.App.3d 1112, 1121–1122; People v. Cheffen (1969) 2
Cal.App.3d 638, 641–642; People v. Morrow (1969) 275 Cal.App.2d 507, 514.)”
(People v. Codinha (2023) 92 Cal.App.5th 976, 994; see In re Sandel (1966) 64
Cal.2d 412, 415.) “The failure to pronounce sentence on a count is an
16
unauthorized sentence and subject to correction on remand.” (People v. Price
(1986) 184 Cal.App.3d 1405, 1411, fn. 6; see also People v. Benton (1979) 100
Cal.App.3d 92, 102 [failure to either strike or impose enhancement was
“analogous to a failure to pronounce sentence on all counts, which is the type
of unauthorized sentence that can be corrected by remand on the defendant’s
appeal”].) As noted, no mention of count 7 was made by the trial court or
counsel for the parties at sentencing, nor is any sentence on that count
reflected in the minutes or on the abstract of judgment.19 Indeed, the minute
order for the sentencing hearing lists count 7 and then states that it was
“[n]ot addressed.”
In any event, even if the minute order or the abstract of judgment did
reflect a sentence on count 7, failure to pronounce sentence orally renders the
sentence unauthorized. (See, e.g., People v. Farell (2002) 28 Cal.4th 381, 384,
fn. 2 [“[t]he record of the oral pronouncement of the court controls over the
clerk’s minute order”]; People v. Mesa (1975) 14 Cal.3d 466, 471 [“ ‘[r]endition
of judgment is an oral pronouncement’ ” and controls over minutes and
abstract of judgment]; People v. Zackery (2007) 147 Cal.App.4th 380, 387–
388.)
Under these circumstances, we agree with the parties that the proper
remedy is a remand for full resentencing.20 (See People v. Salazar (2023) 15
19 The probation report lists count 7 under “Offenses” and concludes its
“Evaluation” section by indicating that the probation department “will
recommend any punishment as to the misdemeanor conviction be stayed per
[section] 654,” but the report does not include count 7 in the table detailing
the department’s suggested prison term.
20 Remand is appropriate for the additional reason that the trial court
should decide whether section 654 applies to count 7 in the first instance.
(See People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4 [“ ‘[t]he question
whether section 654 is factually applicable to a given series of offenses is for
the trial court, and the law gives the trial court broad latitude in making this
17
Cal.5th 416, 431 [“remand is the default . . . unless there is a clear indication
from the sentencing court that it would be idle to do so”]; People v. Codinha,
supra, 92 Cal.App.5th at pp. 994–995; People v. Burbine (2003) 106
Cal.App.4th 1250, 1257–1258 [finding full resentencing appropriate given the
“ ‘interlocking nature’ ” and “inherently integrated nature” of felony
sentencing for a multiple-count conviction].)
DISPOSITION
The judgment of conviction is affirmed, but the sentence is vacated and
the case is remanded to the trial court with directions to conduct a full
resentencing in accordance with the views expressed in this opinion.
determination’ ”]; People v. Jones (2022) 79 Cal.App.5th 37, 46 [concluding in
part that the “need to apply . . . [section] 654 . . . warrant[s] a full
resentencing”].)
18
RICHMAN, ACTING P. J.
We concur.
MILLER, J.
DESAUTELS, J.
(A173123N)
19