P. v. Ibarra
Filed 5/8/13 P. v. Ibarra CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ERIK IBARRA et al.,
Defendants
and Appellants.
E054766
(Super.Ct.No.
FSB902536)
OPINION
APPEAL
from the Superior Court
of
County. Annemarie G.
Pace, Judge. Affirmed with directions.
Kevin
D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant Erik Ibarra.
Michael
B. McPartland, under appointment by the Court of Appeal, for Defendant and
Appellant Gabriel Adam Sanchez.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Lilia E. Garcia and
Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Following
a jury trial, defendants and appellants Erik Ibarra (Defendant Ibarra) and
Gabriel Adam Sanchez (Defendant Sanchez) were convicted of
Victim); robbery (§ 211) of the Victim and four others; and
(§§ 187, subd. (a), 664) of the four others. The jury also found that with respect to the
murder and robbery of the Victim, Defendant Ibarra personally and intentionally
discharged a firearm that killed him (§ 12022.53, subd. (d)), and that
Defendant Ibarra personally used, and personally and intentionally discharged,
a firearm in the commission of all the crimes.
(§ 12022.53, subds. (b), (c).)
Finally, the jury found that Defendant Sanchez knew his codefendant was
armed during the commission of all of the charged crimes. (Former § 12022, subd. (a)(1).)
On
October 7, 2011, Defendant
Ibarra was sentenced to state prison
for an indeterminate term of 75 years to life, plus a consecutive term of 106
years 8 months. Defendant Sanchez was
sentenced to state prison for an indeterminate term of 50 years to life plus an
additional consecutive term of one year.
Both appeal. Defendant Ibarra
contends the trial court committed reversible
error by allowing an expert to testify about his purported gang motive or
gang intent, and the abstract of judgment incorrectly describes one sentence
enhancement. Defendant Sanchez contends
he received ineffective assistance of counsel when his attorney failed to ask
the trial court to dismiss his prior conviction alleged under the “Three
Strikes†law, and section 654 precludes imposition of concurrent terms on the
five robbery convictions. Defendant
Sanchez further joins in any argument made by Defendant Ibarra.
I. STATEMENT OF FACTS
Given
Defendants’ issues on appeal, a shortened version of the facts will suffice;
however, further facts will be provided throughout the opinion as needed.
On
the late evening of June 14, 2009,
the Victim and Bryan Juarez, Michael Hilliard, Juan Monge, and Juan Nieto went
to Blair Park
in San Bernardino to do some target
practicing with their airsoft
name="_ftnref2" title="">[2] guns.
While at the park, Defendants approached them. Defendant Ibarra had a black semiautomatic
firearm pointed at them as Defendant Sanchez went through everyone’s
pockets. As Defendants began to walk
away, the Victim called out something to the effect of, “hey, if you put the
gun down, we can fight.†Defendant
Ibarra, followed by Defendant Sanchez, immediately “[t]urned around and took a
few steps closer [to the Victim] and fired†into his face. Defendant Ibarra then opened fire on the
others. The Victim died.
II. GANG EXPERT TESTIMONY
Defendants
contend the trial court erred in admitting testimony they were affiliated with
a gang. They argue the evidence was
irrelevant and unduly prejudicial, and that its admission violated their
a fair trial.
A. Further Background
Information.
Prior
to trial on July 19, 2011,
the People moved to admit gang evidence to show that Defendants were “both gang
members from the same gang out of Monrovia,â€
and they had been convicted of a gang-related battery which they committed in
concert. The prosecutor argued the
evidence was relevant to show (1) Defendant Sanchez’s knowledge that (a)
violence was the “natural and probable consequence†of committing a crime with
Defendant Ibarra and (b) Defendant Ibarra was armed on the night in question;
and (2) Defendant Sanchez’s “intent†and “plan†in committing the charged
crimes with his fellow gang member. She
also argued the evidence was relevant to the underlying reason, or motive, for
the fatal shooting, namely, that as a gang member accompanied by another gang
member, Defendant Ibarra was bound by code and a desire for personal glory to
react to the Victim’s challenging comment with deadly force.
The
court remarked that Defendant Ibarra’s gang membership did not “necessarily go
to premeditation†but agreed that it was relevant to motive. The prosecutor continued that the
gang-related motive was not limited only to elevating the gang’s and Defendant
Ibarra’s own status, but included instilling fear in the community and
discouraging witnesses from cooperating with the police.
The
court clarified: “So with respect to
[Defendant] Ibarra, there’s motive, increased status in the gang
. . . [and] witness fear and intimidation? [¶] . . . [¶] . . . [And w]ith respect to
[Defendant] Sanchez, it’s—
[¶] . . . [¶]
. . . natural and probable cause—foreseeability that he has a
gun, that he might use the gun, and the fact that they have previously
committed a crime together, which shows or can show that they planned this
robbery together?†The prosecutor
responded affirmatively.
Defendant
Ibarra’s counsel objected that the evidence was irrelevant. He argued that the evidence would only have
been relevant had there been a gang charge or allegation. He denied that the evidence tended to
establish motive and characterized the prosecution’s argument as an illogical
leap that a gangster would have a special reason for pulling the trigger. The court clarified that the expert would
simply testify to “how important not being . . . disrespected is to a
gang member and that that sort of disrespect will be met with violence,
especially when it’s committed in front of another gang member.†The court again remarked that it did not “buy
the premeditation argument,†but stated that the evidence was relevant to
Defendant Ibarra’s motive for shooting.
Defendant
Ibarra’s counsel countered that the evidence was “extremely prejudicial†and
that it would permit the prosecutor to “present a picture to the jury of a
violent gang member . . . .†He again asserted that the evidence would
only have been admissible had Defendants been charged with a gang crime. The court stated: “It also becomes relevant . . . if
some of th[e] witnesses are fearful about testifying because they suspect these
people are gang members . . . so I think it’s relevant for motive and
witness reactions and fear.†The
prosecutor noted that “[w]ith respect to prejudice,†the charged crimes,
namely, that “[Defendant] Ibarra shot some kid point-blank in the face during a
robbery,†were far more egregious than the anticipated gang evidence, so the
latter evidence was unlikely to emotionally sway jurors.
Defendant
Sanchez’s counsel argued that the evidence was inadmissible “character
evidence†proscribed by Evidence Code section 1101, subdivision (a). He acknowledged the exceptions for
“knowledge, intent, motive, plan, or scheme,†but contended there was “no question
about the motive for the robbery,†or the “intent of the shooter.†According to his interpretation of the case,
the motive was obvious from the fact that “the victim made a statement, and
that [Defendant] Ibarra responded to that statement.†He also complained that the People were not
required to prove motive, and they had “plenty of evidence as to the issues
that they have to prove.†Finally, he
repeated the argument of Defendant Ibarra’s counsel that only a gang crime
charge or gang allegation would have made gang evidence relevant.
The
court found it significant that Defendants had committed prior crimes together
and pointed out that the People sought to introduce the gang evidence to show
the motive not for the robbery but for the shooting. The court then took the matter under
submission.
A
few days later, on July 20, 2011, prior to the start of trial, the court
ruled the gang evidence was “admissible as to [Defendant] Ibarra regarding
motive with respect to the murder charge.
[¶] It’s significant that one of
those gang priors that the defendants committed together and, therefore, the
identity of each of them in this crime, it goes to whether they had a plan or
scheme to commit the robbery ahead of time.
[¶] It goes to [Defendant]
Sanchez regarding knowing whether the codefendant was armed, if, in fact, he
was, and it goes to whether he would have known that the commission of murder
was a natural and probable consequence of an armed
robbery. . . .†The court
also expressly found that “the probative value was not substantially outweighed
by the danger of undue prejudice . . . .â€
During
trial, Officer Yolanda Gutierrez testified as a gang expert. She testified that victims of and witnesses
to crimes committed by gang members tend not to cooperate with the
investigation because they “fear . . . what might happen to them or
their family.†“Monrovia Nuevo Varrioâ€
(MNV) is a Hispanic criminal street gang based in Monrovia. Members, including Defendants, display “MNV,â€
“MNVR†(Monrovia Nuevo Varrio Rifa), and “X†with a number three tattoos. Defendant Ibarra is known as “Stomps†or
“Stomper,†and Defendant Sanchez is known as “Lucky†and “Lil’ Vago.â€
Defendant
Sanchez was convicted in 2004 of robbery and assault, and both crimes were
found to have been committed for the benefit of a
possession of a firearm, and that crime, too, was found to have been committed
in association with a criminal street gang.
Defendants together committed a battery, which was found to have been
committed for the gang, and Defendant Ibarra was convicted of intimidating a
witness, which crime also was found to have been committed for the gang.
Based
on Defendants’ conduct and tattoos, as well as information provided by other
officers who encountered Defendants on the street, Officer Gutierrez opined
they were MNV gang members. She
explained that when a gang member is challenged by someone, he must
respond. A response to perceived
disrespect would be even more important if another gang member were present to
witness the confrontation. Gang members
back one another up in the commission of crimes. They “communicate with one another. If one has a gun, the other is going to
know.†Officer Gutierrez opined that
Defendant Sanchez knew that Defendant Ibarra had a gun. In response to the hypothetical of two men
from Monrovia committing crimes in San Bernardino, the officer said that such
conduct would inure to the benefit of MNV by raising its profile in the
surrounding communities and increasing the gang’s stature. She testified that the commission of the
robbery at Blair Park enhanced Defendant Ibarra’s reputation in the gang. Regarding the Victim’s statement about
putting down the gun, Officer Gutierrez stated that Defendant Ibarra was “being
called out,†and that had he failed to respond to the challenge, the gang would
have found out. The prosecutor then
asked, “What would be the motive [of] . . . shooting at . . .
the other young men?†Officer Gutierrez
replied, “To eliminate any possible witnesses.â€
Similarly, when Defendant Sanchez was in the getaway car, he told
Defendant Ibarra’s then girlfriend and another girl they had “better not say
anything about what happened to anybody and that whatever happened stays with
the people . . . in the car.â€
Officer Gutierrez opined it was reasonable for the girls to take
Defendant Sanchez’s statement as a threat.
On
cross-examination, Officer Gutierrez acknowledged that Blair Park is not in the
territory claimed by MNV, and that the commission of a crime outside the gang
territory could be either good or bad for the member depending on the gang’s
policy about off-territory crimes. She
reiterated that gang members work to “instill fear†in the community.
The
jury was instructed that it was not required to accept Officer Gutierrez’s
opinions as true or correct. The jurors
were further instructed that gang evidence could only be considered for the
limited purposes of (1) deciding Defendants’ identity or motive; or whether
Defendant Sanchez had plan or scheme to commit robbery, knew that Defendant
Ibarra was armed, or knew that murder or attempted murder was a natural and
probable consequence of robbery committed in concert with Defendant Ibarra; and
(2) evaluating witness credibility. The
jury was admonished not to consider the evidence for any other purpose or
conclude that Defendants were of bad character or disposed to commit crime.
B.
Applicable Law
“California
courts have long recognized the potentially prejudicial effect of gang
membership. As one California Court of
Appeal observed: ‘[I]t is fair to say
that when the word “gang†is used in Los Angeles County, one does not have
visions of the characters from the “Our Little Gang†series. The word gang . . . connotes
opprobrious implications. . . .
[T]he word “gang†takes on a sinister meaning when it is associated with
activities.’ [Citation.] Given its highly inflammatory impact, the
California Supreme Court has condemned the introduction of such evidence if it
is only tangentially relevant to the
charged offenses. [Citation.] In fact, in cases not involving gang
enhancements, the Supreme Court has held evidence of gang membership should not
be admitted if its probative value is minimal.
[Citation.] ‘Gang evidence should
not be admitted at trial where its sole relevance is to show a defendant’s
criminal disposition or bad character as a means of creating an inference the
defendant committed the charged offense.’
[Citation.]
“Thus,
as general rule, evidence of gang membership and activity is admissible if it
is logically relevant to some material issue in the case, other than character
evidence, is not more prejudicial than probative and is not cumulative. [Citation.]
Consequently, gang evidence may be relevant to establish the defendant’s
motive, intent or some fact concerning the charged offenses other than criminal
propensity as long as the probative value of the evidence outweighs its
prejudicial effect. [Citations.] ‘Evidence of the defendant’s gang
affiliation—including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and the
like—can help prove identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to guilt of the charged
crime. [Citations.]’ [Citation.]
Nonetheless, even if the evidence is found to be relevant, the trial
court must carefully scrutinize gang-related evidence before admitting it
because of its potentially inflammatory impact on the jury. [Citations.]
“[T]he
decision on whether evidence, including gang evidence, is relevant, not unduly
prejudicial and thus admissible, rests within the discretion of the trial
court. [Citation.] ‘Where, as here, a discretionary power is
statutorily vested in the trial court, its exercise of that discretion “must
not be disturbed on appeal except on
a showing that the court exercised its discretion in an arbitrary, capricious
or patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]†[Citation.]’
[Citations.] It is appellant’s
burden on appeal to establish an abuse of discretion and prejudice. [Citation.]â€
(People v. Albarran (2007) 149
Cal.App.4th 214, 223-225.)
C. Analysis
Defendants
contend the gang evidence was “wholly lacking in foundation, speculative,
and irrelevant.†(Underlining in
original.) They argue that “gang motive
or gang intent was irrelevant to the charged counts and enhancementsâ€
because there were no gang allegations in the information. (Underlining in original.) As such, gang motive was not needed, nor did
any intent to kill “hinge on the presence or absence of a gang
motive . . . .â€
Moreover, Defendants assert “there was a logical non-gang motive
for the shooting based on a challenge issued by one testosterone-driven young
male (already well aware of the presence of a firearm from the robbery) to
another one.†(Underlining in original.) Viewing the situation as merely a challenge
from one caveman to another, Defendants argue that expert testimony regarding
gangs and gang motives was unnecessary.
In
response, the People argue that motive and intent are relevant to explain why
Defendant Ibarra would “walk[] up to an unarmed man and [shoot] him in the face
point-blank for nothing more than his having suggested that [Defendant] Ibarra
would not have been so brazen without his gun.â€
We agree. Defendants, two armed
men, had successfully robbed five young unarmed men. While one of the five made a verbal challenge
to fight without a gun, why did Defendant Ibarra have to respond so
violently? As the People aptly point
out, “[t]he gang expert’s testimony put this otherwise inexplicably violent
response in context.†Namely, Officer
Gutierrez explained that when gang members perceive they have been
disrespected, they respond with violence.
The Victim’s verbal challenge was disrespectful to Defendant Ibarra in
the presence of another gang member, Defendant Sanchez. Thus, Defendant Ibarra had to defend his
reputation along with that of the gang.
The probative value of the gang evidence as to motive was more than
substantial.
Notwithstanding
the above, Defendants claim there was no evidence the robbery or murder was
motivated by a desire or intent to benefit the gang. They argue that (1) there was no
evidence the Victim or his friends were from a rival gang, (2) there was
no evidence that gang territory was an issue, and (3) there was no
evidence that Defendants made known their gang affiliation. This argument might have merit if the only
crime charged was robbery. However, the
senseless murder of an unarmed young man, together with the attempted murders
of four other young men, under the circumstances before this court, warrant the
introduction of gang evidence.
Regarding
Defendants’ gang affiliation, they fault the trial court for allowing evidence
of their prior criminal acts that were gang related, arguing, “these priors
[were] not probative of, or relevant to, [Defendant] Sanchez’s purported
‘knowledge’ about how [Defendant Ibarra] would act in the park, but [were]
inadmissible . . . prior bad acts . . . [under]
subdivisions (a) and (b) of Evidence Code section
1101 . . . .†Again,
we disagree. As the People point out,
the prior gang-related crimes show Defendant Ibarra’s intent to shoot the
Victim and the four others, as well as Defendant Sanchez’s knowledge that
Defendant Ibarra was armed, along with Defendant Sanchez’s willingness to
commit violent crimes with his partner.
Finally,
Defendants argue that Officer Gutierrez’s opinions that Defendant Ibarra
carried a firearm and shot the Victim with a gang motive or intent violate the
rule announced in People v. Killebrew
(2002) 103 Cal.App.4th 644, 658, disapproved on another point in
1047, fn 3. However, “[t]estimony in the
form of an opinion that is otherwise admissible is not objectionable because it
embraces the ultimate issue to be decided by the trier of fact.†(Evid. Code, § 805.) Rather, the admissibility of expert opinion
testimony that embraces the ultimate issue “‘“depends on the nature of the
issue and the circumstances of the case, there being a large element of judicial
discretion involved. . . .â€â€™â€
(Killebrew,
offenses and enhancements are alleged, expert testimony regarding the culture,
habits, and psychology of gangs is generally permissible because these subjects
are “‘“sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.
[Citations.]†[Citation.]’ [Citation.]â€
(Id. at p. 656; see also
605, 617.) For example, an expert may
properly testify concerning “the size, composition or existence of a gang
[citations], gang turf or territory [citations], an individual defendant’s
membership in, or association with, a gang [citations], the primary activities
of a specific gang [citations], motivation for a particular crime, generally
retaliation or intimidation [citations], whether and how a crime was committed
to benefit or promote a gang [citations], rivalries between gangs [citation],
gang-related tattoos, gang graffiti and hand signs [citations], and gang colors
or attire [citations].†(
“A trial court’s determination as to whether an expert should be allowed
to opine about a particular subject is reviewed on appeal for abuse of
discretion. [Citations.]†(People
v. Sandoval (2008) 164 Cal.App.4th 994, 1001.)
Here,
Officer Gutierrez’s testimony not only helped to explain Defendant Ibarra’s
violent response to the Victim’s verbal challenge, it also helped the jury
evaluate witness credibility. Several
witnesses provided conflicting and incomplete accounts of what had happened
when interviewed by the police. Their
testimonies at trial were not consistent with their statements. Absent the gang evidence, the jury could have
concluded that the witnesses were lying.
In fact, defense counsel encouraged the jurors to do just that. The officer’s testimony provided an
explanation for the conflicting witness testimonies. She explained that victims and witnesses to
gang crimes normally fail to cooperate with law enforcement because they fear
the gang member or gang will retaliate against them and/or their families. In fact, gang members go to great lengths to
instill this fear in the community.
Here, witnesses testified to their fear.
Regarding
Evidence Code section 352, although gang evidence may be prejudicial, here the
probative value far outweighed any prejudicial effect. “‘“Unless the dangers of undue prejudice,
confusion, or time consumption ‘“substantially outweighâ€â€™ the probative value
of relevant evidence, a[n Evidence Code] section 352 objection should
fail. [Citation.] ‘“The ‘prejudice’ referred to in Evidence
Code section 352 applies to evidence which uniquely tends to evoke an emotional
bias against the defendant as an individual and which has very little effect on
the issues. In applying [Evidence Code]
section 352, ‘prejudicial’ is not synonymous with ‘damaging.’†[Citation.]’
[Citation.] [¶] The prejudice that [Evidence Code] section
352 ‘“is designed to avoid is not the prejudice or damage to a defense that naturally
flows from relevant, highly probative evidence.†[Citations.]
“Rather, the statute uses the word in its etymological sense of
‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]â€
[Citation.]’ [Citation.] In other words, evidence should be excluded
as unduly prejudicial when it is of such nature as to inflame the emotions of
the jury, motivating them to use the information, not to logically evaluate the
point upon which it is relevant, but to reward or punish one side because of
the jurors’ emotional reaction. In such
a circumstance, the evidence is unduly prejudicial because of the substantial
likelihood the jury will use it for an illegitimate purpose.†[Citation.]’
[Citation.]†(
491.)
Given
the facts in this case, the gang evidence was mild compared to the actual
crimes. While Defendants describe
Defendant Ibarra as acting “rashly, impulsively, or without careful
consideration and thus without deliberation or premeditation,†the record
does not support such description.
(Underlining in original.)
According to the record, Defendant Ibarra turned, walked up to the
Victim (who had done nothing more than issue a verbal challenge) and fired
right in his face. He then opened fire
on the four others who had not said one word.
There was nothing rash or impulsive about Defendant Ibarra’s
actions. The trial court carefully
scrutinized the proffered evidence and correctly found its prejudicial effect
did not outweigh its probative value in establishing motive, intent, plan, and
knowledge. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [evidence of gang
membership is admissible to prove specific intent, means of applying force, or
other issues pertinent to guilt of the charged crime].)
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant
Sanchez argues that he received ineffective assistance of counsel (IAC) when
his trial counsel failed to file a motion to strike his prior strike
convictions under People v. Superior
Court (Romero) (1996) 13 Cal.4th
497.
In
order to establish a claim of IAC, defendant must demonstrate “(1) counsel’s
performance was deficient in that it fell below an objective standard of
reasonableness under prevailing professional norms, and (2) counsel’s deficient
representation prejudiced the defendant, i.e., there is a ‘reasonable
probability’ that, but for counsel’s failings, defendant would have obtained a
more favorable result. [Citations.] A ‘reasonable probability’ is one that is
enough to undermine confidence in the outcome.â€
(People v. Dennis (1998) 17
Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668, 694.) Hence, an IAC claim has two components: deficient performance and prejudice. (Strickland
v. Washington, supra, at pp.
687-688, 693-694; People v. Williams
(1997) 16 Cal.4th 153, 214-215.) If the
defendant fails to establish either component, his claim fails.
When
a claim of IAC is made on direct appeal and the record does not show the reason
for counsel’s challenged actions or omissions, the conviction must be affirmed
unless there could be no satisfactory explanation. (People
v. Pope (1979) 23 Cal.3d 412, 426, overruled on another ground in
1048, 1081, fn. 10.)
According
to Defendant Sanchez, a Romero motion
was warranted because (1) both his prior convictions of possessing a
firearm and misdemeanor battery were
serious only because they were committed for the benefit of a street gang;
(2) he had not killed anyone, he had not possessed a firearm, and he was
convicted of felony murder only because of the robbery conviction; and (3) he
told Defendant Ibarra to calm down multiple times. Defendant Sanchez contends there was no
detriment to filing such motion, and because the trial court indicated that he
“should be given some leniency because he was not the
shooter . . . there is a
reasonable probability that had a Romero
motion been made, the trial court would have dismissed the prior conviction
alleged under the three strikes law so that it could impose a more just
sentence.â€
The
trial court’s discretion to strike a prior conviction pursuant to section 1385
is limited. (Romero, supra, 13 Cal.4th
at p. 528.) The trial court’s discretion
to strike a qualifying strike is guided by “established stringent standardsâ€
designed to preserve the legislative intent behind the Three Strikes law. (People
v. Carmony (2004) 33 Cal.4th 367, 377.)
“[T]he court . . . must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character,
and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.†(People
v. Williams (1998) 17 Cal.4th 148, 161.)
To
begin with, the People point out that the trial court, on its own, could have
chosen to strike Defendant Sanchez’s prior conviction. The People argue that by claiming IAC,
Defendant Sanchez “presumes this Court will infer that the lower court was
unaware of its discretion to strike his prior strike.†We do not.
The “trial court is presumed to have been aware of and followed the
applicable law†when exercising its discretion.
(People v. Mosley (1997) 53
Cal.App.4th 489, 496.) Thus, as the
People aptly argue, because the trial court did not dismiss Defendant Sanchez’s
prior on its own motion, “it did not find [Defendant Sanchez] or his
circumstances to be so extraordinary as to take him outside the purview of the
Three Strikes Law.â€
Notwithstanding
the above, we will assume that counsel’s performance was deficient in not filing
a Romero motion. Thus, we consider whether Defendant Sanchez
was prejudiced by the deficient representation, i.e., was there a reasonable
probability that, but for counsel’s failings, defendant would have obtained a
more favorable result? We conclude that
there was not. Defendant Sanchez was an
active gang member who had been convicted of possession of a firearm for the
benefit of his gang, who had committed a prior offense with Defendant Ibarra,
again for the benefit of their gang, who willing assisted Defendant Ibarra in
the armed robbery of five young unarmed men, late at night, in a deserted park,
who followed Defendant Ibarra when he turned around and shot the Victim, and
who then warned witnesses not to tell anyone what had happened. Defendant Sanchez does not fit the
description of a defendant who should be treated as being outside the purview
of the Three Strikes law. While
Defendant Sanchez claims that “the trial court indicated at the sentencing hearing
that [he] should be given some leniency because he was not the shooter,†we
find that the only leniency contemplated by the trial court was to run the
sentences concurrently. As the People
point out, the trial court chose to sentence Defendant Sanchez to the upper
term on all of the robbery and attempted murder convictions, notwithstanding
the fact that any term imposed would be doubled by the strike.
Given
the above, Defendant Sanchez’s IAC claim fails.
IV. CORRECTING THE ABSTRACT OF JUDGMENT
Defendant
Ibarra contends, the People concede, and this court agrees that the abstract of
judgment incorrectly lists count 2’s section 12022.53, subdivision (b)
enhancement as “10-LIFE†rather than as “S†for stayed. In fact, the trial court imposed, as to count
2, a 10-year enhancement, as one of two “lesser gun allegations,†and then
stayed it pursuant to section 12022.53, subdivision (f). The sentencing minute order accurately
reflects this. Thus, we direct the trial
court to correct the abstract of judgment to reflect the stayed term and to forward
a certified copy of the corrected abstract of judgment to the Department of
Corrections and Rehabilitation. This
court has the authority to order the abstract of judgment corrected to conform
to the trial court’s oral pronouncement of judgment. (People
v. Zackery (2007) 147 Cal.App.4th 380, 385-386.)
V. SECTION 654
Defendant
Sanchez was sentenced to 10 years (the upper term of 5 doubled to 10 for the
strike prior) for each of the five robbery convictions and 18 years (9 doubled)
for each of the four attempted murders, all of which to run concurrent to a
term of 50 years to life (25 doubled) for the murder of the Victim, and a
consecutive one-year term for the firearm allegation. He contends, the People concede, and we agree
that the trial court should have stayed the terms on the robberies.
When
a court imposes a term for felony murder, it cannot impose a term for the
underlying felony offense. (§ 654;
1297, 1315 [Fourth Dist., Div. Two], overruled on other grounds as stated in
1125, 1137, fn. 8.) This is because the
underlying felony is a statutorily defined element of the crime of felony
murder, and is thus the same act which makes the killing first degree murder. (People
v. Sanchez, supra, at p. 1315.) Furthermore, section 654 bars punishment for
both a greater offense that is found by the jury to be a natural and probable
consequence of an underlying felony, and that underlying felony itself. (People
v. Bradley (2003) 111 Cal.App.4th 765, 769-772.) Here, because Defendant Sanchez was found
guilty of felony murder committed during the robbery of the Victim, and the
attempted murders of the four others as a natural and probable consequence of
the robbery of each one, the trial court could impose only one term for each
victim, i.e., the one corresponding to the crime that carried the greater
punishment. Thus, the trial court should
have stayed the terms on the robbery convictions.
VI. DISPOSITION
The
superior court is directed to issue an amended abstract of judgment for
Defendant Ibarra to reflect that as to count 2, the 10-year enhancement under
section 12022.53, subdivision (b), is stayed pursuant to section 12022.53,
subdivision (f). The superior court is
also directed to modify the judgment as to Defendant Sanchez to stay the terms
on his robbery convictions pursuant to section 654 and to amend the abstract of
judgment accordingly. The court is
further instructed to forward certified copies of each defendant’s amended
abstract of judgment to the Department of
Corrections and Rehabilitation. In
all other respects, each defendant’s judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Airsoft guns fire only small plastic pellets
with a force inadequate to break skin.
They are toy “replicas†of guns that bear a distinct bright-orange
plastic piece at the end of the barrel.
