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P. v. Rouston

P. v. Rouston
06:29:2013





P




 

 

 

 

P. v. Rouston

 

 

 

 

 

 

 

Filed 6/25/13  P. v. Rouston CA4/1











>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

 

 

COURT
OF APPEAL, FOURTH APPELLATE DISTRICT

 

DIVISION
ONE

 

STATE
OF CALIFORNIA

 

 

 
>






THE PEOPLE,

 

            Plaintiff and Respondent,

 

            v.

 

GEORGE ROUSTON,

 

            Defendant and Appellant.

 


  D060911

 

 

 

  (Super. Ct.
No. SCD234128)


 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Theodore M. Weathers, Judge.  Affirmed.

            Patrick
Morgan Ford for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles Ragland,
Deputy Attorneys General, for Plaintiff and Respondent.

            George
Rouston, a minor charged as an adult, pled guilty to href="http://www.fearnotlaw.com/">assault with a semiautomatic firearm, and
admitted enhancements for committing the crime for the benefit of a gang,
personal use of a firearm, and personal infliction of great bodily injury.  On appeal, he asserts the trial court
improperly punished him multiple times for his single firearm use.  We find no reversible error and affirm. 

FACTUAL AND
PROCEDURAL BACKGROUND

            Defendant's
offense, as summarized in the probation report, occurred on April 6, 2011, when defendant and
several other males encountered the victim (Christopher Morales) and one or
more other males.  During the encounter,
defendant pulled out a gun and fired several shots, and then he and his
companions fled the scene.  Morales was
shot three times; one of the bullets caused him to lose the ability to feel or
move his leg and he was required to undergo href="http://www.sandiegohealthdirectory.com/">surgery.

            Morales
told the police that at the time of the crime he was "hanging out with his
friends"; he ran when he heard gunshots and fell when he was shot; he had
no gang affiliation; and he did not know who shot him or why he was shot. 

            Defendant
was identified as the shooter by an anonymous caller to the police and by two
witnesses at a photo lineup.  Defendant
was arrested at the home where he resided with his grandmother.  Defendant initially denied knowledge of the
shooting, but admitted his involvement when told that he had been identified by
witnesses.

            According
to defendant, he and Morales were members of rival gangs that were engaged in
disputes about "tagging" and disrespect of defendant's gang.  Defendant heard that Morales was planning to
shoot defendant.  Fearing for his life
and the life of his family, defendant obtained a gun and went to the area of
the offense to talk to Morales.  When
defendant encountered Morales and asked him " 'What's up?' " Morales
started running towards defendant with his hand behind his back.  Defendant thought Morales "had
something" so defendant pulled his gun from his waistband and started
shooting.

            Defendant
told the probation officer he did not intend to shoot Morales but just to point
the gun at him to show he was not " 'messing' " and did not want
anyone to hurt his family.  At the time
of the offense he was under the influence of methamphetamine and alcohol; he
was not in his right state of mind; and he "was stupid and did not mean to
shoot" Morales. 

            The nature
of defendant's alleged offense permitted him to be charged as an adult in
criminal court without a finding by a juvenile court that he was unfit to be
dealt with in juvenile court.  (Welf.
& Inst. Code, § 707, subd. (d)(2); see Manduley
v. Superior Court
(2002) 27 Cal.4th 537, 549-550.)href="#_ftn1" name="_ftnref1" title="">[1]  Defendant was charged as an adult in criminal
court with attempted murder (count 1) and assault with a semiautomatic firearm
(count 2, Pen. Code,href="#_ftn2"
name="_ftnref2" title="">[2] §
245, subd. (b)), and with three enhancement allegations:  (1) committing the offense for the benefit of
a gang (§ 186.22, subd. (b)(1)); (2) personal use of a firearm (§ 12022.5,
subds. (a), (d)); and (3) personal infliction of great bodily injury (§
12022.7, subd. (a)).

            On July 28,
2011, defendant pled guilty to assault with a semiautomatic firearm and
admitted the three enhancements.  He also
admitted that he personally used a firearm within the meaning of the Welfare
and Institutions Code provision permitting him to be charged as an adult.  (Welf. & Inst. Code, § 707, subd.
(d)(2)(B); see fn. 1, ante.)  The prosecution agreed to dismiss the
attempted murder charge and to a sentence between 10 to 20 years. 

            At
sentencing, the prosecution (with the probation officer's concurrence) proposed
a 20-year sentence, whereas defense
counsel
requested a 10-year sentence. 
In support of their positions, the parties elaborated at length about
their differing views on the mitigating and aggravating factors operative
during the offense.  After listening to
the parties' arguments and statements from defendant's family members, the
court imposed a 16-year sentence, consisting of:  (1) the lower three-year term for assault
with a semiautomatic firearm; (2) the lower three-year term for the personal
gun use enhancement; and (3) the 10-year term for the gang enhancement.  The court explained that it selected the
lower three-year terms for the assault offense and gun use enhancement based on
defendant's youthful age, lack of significant criminal history, and early
acceptance of responsibility.  It imposed
the 10-year term for the gang enhancement based on defendant's personal use of
a firearm, which made the offense a violent felony triggering the 10-year gang
enhancement term.  Finally, for the
personal infliction of great bodily injury enhancement, the court exercised its
discretion under section 1385 to strike the punishment for this enhancement in
the interests of justice, reasoning that it had "adequate sentencing
parameters" without additional custody based on this enhancement. 

DISCUSSION

I.  Punishment
for Both Gang Enhancement and Personal Firearm Use


            Defendant
argues the trial court erred by imposing both the 10-year gang benefit
enhancement and the personal use of a firearm enhancement because both
enhancements were based on his personal
use of a firearm
.  As we shall
explain, there was no reversible error because the 10-year gang enhancement
term could properly be premised on defendant's personal infliction of great bodily injury without reliance on his
personal gun use.

            Section 654
generally provides that when an act or omission is punishable under different
statutory provisions, the act or omission may be punished only once.href="#_ftn3" name="_ftnref3" title="">[3]  Specifically addressing punishment for
enhancements based on gun use and great bodily injury, section 1170.1,
subdivisions (f) and (g), provides that a gun
use
enhancement may be imposed only
once
for a single offense, and, likewise, a great bodily injury enhancement may be imposed only once for the
offense.  However, section 1170.1,
subdivisions (f) and (g), also provides that the imposition of a gun use
enhancement does



 

not preclude the
imposition of a great bodily injury enhancement for a single offense.href="#_ftn4" name="_ftnref4" title="">[4]

            Based on the
express terms of section 1170.1, subdivisions (f) and (g), in >People v. Ahmed (2011) 53 Cal.4th 156,
the court held the trial court did not err in imposing both a gun use
enhancement and a great bodily injury enhancement for the defendant's single
act of firing a gun.  (>Id. at pp. 159-160, 164, 168.)  Further, the Ahmed court concluded that when a statute specifically permits
imposition of multiple enhancements, that specific statute prevails over the
more general statutory provision set forth in section 654 that prohibits double
punishment for a single act.  (>Ahmed, supra, at pp. 159-161, 163.)  Ahmed
explained:  "[T]he personal use of a
firearm was an aspect of [the single act of shooting] that, the Legislature has
determined, warrants additional punishment; similarly, the infliction of great
bodily injury is a different aspect of that act that, the Legislature has
determined, also warrants additional punishment."  (Id.
at pp. 163-164.) 

            The gang
enhancement statute sets forth varying levels of imprisonment, depending on the
nature of the felony of which the defendant is convicted.  At the lowest level, the gang enhancement
statute provides for a two-, three-, or four-year term.  (§ 186.22, subd. (b)(1)(A).)  The term is elevated to five years for statutorily-defined
serious felonies (§ 186.22, subd. (b)(1)(B)), and it is elevated to 10 years
for statutorily-defined violent felonies (§ 186.22, subd. (b)(1)(C)).  The statutorily-defined violent felonies that
support the 10-year term include felonies for which personal use of a firearm
has been charged and proven, or for
which personal infliction of great bodily injury has been charged and
proven.  (§ 667.5, subd. (c)(8).)

            Based on
section 1170.1, subdivision (f)'s limitation on multiple gun use enhancements,
the trial court erred by imposing punishment pursuant to two statutes:  (1) the personal firearm use statute (§
12022.5, subd. (a)); and (2) the 10-year gang enhancement statute >premised on personal firearm use.  (People
v. Rodriguez
(2009) 47 Cal.4th 501, 504-505, 508-509.)  However, defendant was also charged with an
enhancement for personal infliction of
great bodily injury
, and he admitted this allegation in his guilty
plea.  Thus, use of the 10-year gang
enhancement term was additionally available premised on the great bodily injury
aspect of defendant's offense.  Further,
the great bodily injury aspect was available to elevate the gang enhancement to
the 10-year term because the court did not
impose punishment based on the great bodily injury enhancement under section
12022.7, but rather struck this punishment in the furtherance of justice under
section 1385.  (People v. Vega, supra, 214 Cal.App.4th at p. 1395 [court did not
err in imposing punishment based on both firearm use enhancement and 10-year
gang enhancement because substantive offense was violent felony due to both gun
use and infliction of great bodily
injury, and sentence on great bodily injury enhancement was stayed].)

            Given the
availability of the great bodily injury aspect to support application of the
10-year gang enhancement term, there is no reasonable probability the outcome
would have been different absent the court's erroneous reliance on the firearm
use for the 10-year gang enhancement term. 
(See People v. Osband (1996) 13 Cal.4th 622, 728-729.)  The record shows the trial court selected the
16-year total sentence as the appropriate term of custody that defendant should
receive for his offense.  We have no
doubt that if the court had realized it could not rely on defendant's firearm
use for both the gang enhancement and the firearm use enhancement, it would
have premised imposition of the 10-year gang enhancement term on the great
bodily injury aspect of the offense so as to permit imposition of punishment
for the section 12022.5 firearm use enhancement.href="#_ftn5" name="_ftnref5" title="">[5]

            The court's
erroneous reference to the firearm use for the 10-year gang enhancement term
was harmless.  Because the 10-year gang
enhancement term was properly applicable due to the great bodily injury aspect
of the crime, the court did not err in imposing punishment based on both the
10-year gang enhancement statute and the firearm use enhancement statute.

II.  Placement
of Case in Adult Court Based on Firearm Use


and Enhancement of Sentence Based on Firearm Use

            Defendant
argues the trial court violated section 654 and due process/fundamental
fairness by using the fact of his personal firearm use to both (1) try him as
an adult and (2) enhance his sentence. 
Defendant contends that placing his case in adult court constitutes
punishment within the meaning of section 654's proscription against double
punishment because juvenile court focuses on rehabilitation whereas href="http://www.fearnotlaw.com/">criminal court focuses on
punishment. 

            We agree
with defendant that adjudicating a minor's offense in criminal, rather than
juvenile, court can readily subject the minor to harsher punishment.  (See Ramona
R. v. Superior Court
(1985) 37 Cal.3d 802, 810-811; Marcus W. v. Superior Court (2002) 98 Cal.App.4th 36, 41.)  Nevertheless, we are not persuaded by
defendant's assertion that the placement of his case in adult court constitutes
punishment under section 654.  Section 654's prohibition against double
punishment is designed to ensure that a defendant's punishment is commensurate
with his or her culpability.  (>People v. Sanders (2012) 55 Cal.4th 731,
742.)  Thus, generally a defendant should
not be punished twice for a single physical act (People v. Jones (2012) 54 Cal.4th 350, 358), nor should a defendant
be punished twice for a course of conduct when the defendant entertained a
single criminal objective (People v.
Latimer
(1993) 5 Cal.4th 1203,
1208).

            The
decision to try a minor as an adult constitutes a jurisdictional selection that
exposes the minor to potentially
elevated punishment; however, it does not actually adjudicate or impose any punishment.  For example, here, the decision to try
defendant as an adult because he used a firearm did not determine his
punishment; rather, his punishment was resolved via the plea bargaining process
and then by the trial court's selection of a sentence within the agreed-upon
range.  Defendant was not punished for
his firearm use when his case was brought in adult court; rather, he was
exposed to a potentially longer punishment for the firearm use due to the adult
court placement, and then punishment was actually imposed for his firearm use
at the time of sentencing in adult court. 
The mere placement of his case in adult court did not itself constitute
a punishment; indeed, defendant could have been acquitted by an adult court
jury and received no punishment at all.

            Because the
placement of a minor's case in adult court constitutes a jurisdictional
election that does not determine or impose punishment, section 654 is not
operative.  For the same reason, we
reject defendant's contention that he was punished for his firearm use in a
fundamentally unfair manner that violated due process.

DISPOSITION

            The judgment is affirmed.

 

 

HALLER, J.

 

WE CONCUR:

 

 

 

McCONNELL, P. J.

 

 

 

HUFFMAN, J.





id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1]          Charges may be filed directly in criminal court if the minor
is at least 14 years old and the alleged offense involves a
statutorily-specified circumstance, including personal use of a firearm.  (Welf. & Inst. Code, § 707, subd.
(d)(2)(B).)

 

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">[2]          Subsequent unspecified statutory references are to the Penal
Code.

id=ftn3>

href="#_ftnref3"
name="_ftn3" title="">[3]          Section 654 states in relevant part:  "(a) An act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision. . . ."

 

id=ftn4>

href="#_ftnref4"
name="_ftn4" title="">[4]          Section 1170.1 states in relevant part:

            "(f)
When two or more enhancements may be imposed for being armed with or using a
dangerous or deadly weapon or a firearm in the commission of a single offense,
only the greatest of those enhancements shall be imposed for that offense.  This subdivision shall not limit the
imposition of any other enhancements applicable to that offense, including an
enhancement for the infliction of great bodily injury.

            "(g)  When two or more enhancements may be imposed
for the infliction of great bodily injury on the same victim in the commission
of a single offense, only the greatest of those enhancements shall be imposed
for that offense.  This subdivision shall
not limit the imposition of any other enhancements applicable to that offense,
including an enhancement for being armed with or using a dangerous or deadly
weapon or a firearm."

            We
note that section 1170.1's statement that only the greatest enhancement
"shall be imposed" in effect means imposed and executed given that the appropriate procedure is for the court
to impose the sentence for both enhancements, and then stay execution of the
shorter sentence.  (People v. Vega (2013) 214 Cal.App.4th 1387, 1395-1396; see >People v. Gonzalez (2008) 43 Cal.4th
1118, 1122-1123, 1125-1126, 1130.)

id=ftn5>

href="#_ftnref5"
name="_ftn5" title="">[5]          Indeed, the probation report and the prosecutor's sentencing
statement cite the great bodily injury enhancement as establishing the offense
as a violent felony for the 10-year gang enhancement term, and suggest imposing
and executing this term while staying the sentence on the great bodily injury
enhancement.








Description George Rouston, a minor charged as an adult, pled guilty to assault with a semiautomatic firearm, and admitted enhancements for committing the crime for the benefit of a gang, personal use of a firearm, and personal infliction of great bodily injury. On appeal, he asserts the trial court improperly punished him multiple times for his single firearm use. We find no reversible error and affirm.
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