P. v. Sanchez
Filed 4/2/13 P. v. Sanchez CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD GARCIA SANCHEZ
et al.,
Defendants and Appellants.
C064103
(Super. Ct. Nos.
SF105530A, SF105530B)
Richard Garcia Sanchez and Francisco Mendez were convicted of the
degree murder of Sergio Reyes ( ADDIN BA xc <@st> xl 27 s
DUNGQA000001 xpl 1 l "Pen. Code, § 187, subd. (a)" Pen. Code, § 187, subd. (a)
discharging a firearm from a motor vehicle with the intent to inflict death ( ADDIN BA xc <@osdv> xl 22 s
DUNGQA000038 xpl 1 l "§ 190.2, subd. (a)(21)" § 190.2,
subd. (a)(21)) and being an active participant in a
street gang and carrying out the murder to further the
activities of the gang ( ADDIN BA xc <@osdv> xl 22 s
DUNGQA000039 xpl 1 l "§ 190.2, subd. (a)(22)" § 190.2,
subd. (a)(22)). Defendants also
were convicted of shooting a firearm from a motor vehicle
(former ADDIN BA xc <@osdv> xl 18 s
DUNGQA000040 xpl 1 l "§ 12034, subd. (c)" § 12034,
subd. (c);
count 2)
street gang (
ADDIN BA xc <@osdv> xl 19 s DUNGQA000043 xpl 1 l "§ 186.22,
subd. (a)" § 186.22,
subd. (a);
count 4). Mendez alone was
convicted of shooting at an inhabited dwelling
(
ADDIN BA xc <@osdv> xl 5 s DUNGQA000044 xpl 1 l "§ 246" § 246; count 3). As to both defendants, the juries found true
allegations a principal intentionally and personally discharged a firearm in
the commission of counts 1 and 2 (former ADDIN
BA xc <@osdv> xl 33 s DUNGQA000045 xpl 1 l "§ 12022.53, subds.
(d) and (e)(1)" § 12022.53,
subds. (d) and (e)(1)),
the benefit of a criminal street gang ( ADDIN BA xc <@osdv> xl 22 s
DUNGQA000049 xpl 1 l "§ 186.22, subd. (b)(1)" § 186.22,
subd. (b)(1)). Sanchez’s jury also found true allegations
Sanchez intentionally and personally discharged a firearm in the commission of
counts 1 and 2 (
ADDIN BA xc <@osdv> xl 21 s DUNGQA000050 xpl 1 l "§ 12022.53,
subd. (d)" § 12022.53,
subd. (d)), and
Mendez’s jury found true and allegation count 3 was committed for the benefit
of a criminal street gang ( ADDIN BA xc <@$osdv> xl 22 s
DUNGQA000049 xpl 1 § 186.22,
subd. (b)(1)).
The trial court sentenced Sanchez to
life without the possibility of parole on count 1, plus an additional 25
years to life for personally discharging a firearm and causing death in the
commission of the murder, which the court ordered “merged into the life without
parole.†The court imposed and stayed
sentences of 25 years to life on the additional firearm enhancement and a term
of life with a minimum parole eligibility of 15 years on the gang
enhancement ancillary to count 1. As to
count 2, the court imposed and stayed a sentence of 7 years (the upper term),
plus two terms of 25 years to life for the firearm enhancements, and 10 years
for the gang enhancement. As to count 4,
the trial court imposed and stayed a sentence of 3 years (the upper term).
The trial court sentenced Mendez to
life without the possibility of parole on count 1, plus 25 years to life for
the firearm enhancement, which the court ordered “merged into the life without
parole sentence for Count 1.†The court
imposed and stayed a sentence of life with a minimum parole eligibility of 15
years on the gang enhancement appended to count 1. As to count 2, the trial court imposed and
stayed a sentence of 7 years (the upper term), plus 25 years to life for
the firearm enhancement, and 10 years for the gang enhancement. As to count 3, the court imposed and stayed a
sentence of 7 years (the upper term), plus an additional term of life with
a minimum parole eligibility of 15 years for the gang enhancement. As to count 4, the court imposed and stayed a
sentence of 3 years (the upper term).
The court also imposed various fines and fees, including a $30 court
facilities assessment for each offense.
(
ADDIN BA xc <@st> xl 18 s DUNGQA000003 xpl 1 l "Gov. Code, §
70373" Gov. Code, § 70373.) Defendants appeal. Sanchez contends the trial court
prejudicially erred in (1) including “developmental disability†in the
jury instruction on mental competence at his competency ADDIN
BA xc <@rec> xl 12 s DUNGQA000051 l "hearing, (2)" hearing, (2) admitting evidence Mendez was
present and remained silent when Sanchez made statements implicating himself
and Mendez in Reyes’s murder, and (3) sentencing him on count 2. Mendez contends the trial court prejudicially
erred in (1) allowing testimony to be read to the jury when neither he nor
his attorney was present, (2) instructing the jury regarding flight, (3)
sentencing him to life without the possibility of parole on count 1 when he was
15 years old at the time of Reyes’s murder, and (4) imposing a court facilities
assessment. Mendez also joins in
Sanchez’s claim that the trial court erred in sentencing defendants on count 2.
We shall modify the defendants’
sentences on counts 1 and 2 and affirm the judgments as modified.
FACTUAL AND PROCEDURAL BACKGROUND
I
The
Prosecution
Late on the afternoon of November
15, 2006, Reyes was shot and killed as he walked to the store to get some
milk. Reyes’s young niece, who was
outside at the time, heard gunshots and ran inside and told family members what
she had heard. Various family members
rushed down the street and discovered Reyes lying in a ditch.
Neighbors telephoned 911 and
reported hearing shots fired. A
paramedic arrived minutes later. Reyes
“took one breath and he was pulseless [sic].†He was transported to San Joaquin County
Hospital and was pronounced dead at 6:15 p.m.
He had been shot three times.
Among other things, his left lung and heart were perforated, causing
massive bleeding.
After hearing two shots, Flo Ming,
who lived near the scene of the shooting, ran outside and observed a car
“[back] up, kind of went in the ditch and . . . [pull] out and c[o]me
flying down the street in front of [her] house.†No shell casings were recovered from the
scene, suggesting the weapon used was a revolver.
Law enforcement officers received a
tip in August 2007, and on August 16, 2007, searched a residence where Mendez
was reportedly staying. When officers
arrived, Mendez ran out the back door.
He was found hiding inside a “shed area†and taken into custody.
Mendez was interviewed by law
enforcement later that same day.
Evidence concerning his statements only was presented to his jury. On the day of the shooting, defendants were
“cruising around†in their friend Rafael Cruz’s car when they came across
Reyes. Sanchez, who was driving, pulled
over near where Reyes was walking and asked him if he “bang[ed],†and Reyes
responded by asking Sanchez the same question.
Sanchez pulled out a gun, fired eight shots at Reyes, and took off “to
get away.†Mendez initially claimed he did
not know Sanchez had a gun, but later admitted that Sanchez “didn’t have no [
used to shoot Reyes, a .22-caliber revolver, belonged to Mendez. Sanchez provided the bullets, which he
obtained from his father. Mendez also stated
that he had the gun in the glove box of Cruz’s car, handed it to Sanchez when
they saw Reyes, and told Sanchez, “you shoot him or I shoot him.†When asked what happened to the gun after the
shooting, Mendez explained that he later threw it out the window of a car
during a high speed chase with police, and he assumed it was retrieved by the
police.
On August 17, 2007, the day after
Mendez was taken into custody, officers searched a residence where Sanchez was
reportedly staying. While waiting
outside, officers saw Sanchez leave the residence, and they took him into custody.
Sanchez was interviewed later that
same day. Evidence concerning his
statements only was presented to his jury.
Sanchez initially told officers he was with Mendez when Mendez shot
Reyes. He explained that he and Mendez
had borrowed a gray four-door car from Cruz and were cruising around when they
saw Reyes walking down the street.
Mendez, who was driving, made a U-turn, pulled alongside Reyes, asked
him, “What you bang,†and then shot him eight times. Reyes fell to the ground and Mendez “took off.†Mendez mistakenly believed Reyes was a Norteño. Sanchez was concerned he would be blamed for
the shooting because he loaded the gun, and his finger prints were on the gun
and the bullets. Sanchez denied having a
gun or shooting at anyone that day.
After a detective advised Sanchez
that witnesses had identified him as the driver and Mendez as the passenger,
Sanchez admitted he was driving the car, and that he shot Reyes eight times.
explained that Mendez said he wanted “to go shoot some bustersâ€
Mendez handed him the gun, and told him to shoot. Sanchez told Mendez he did not want to do it,
and Mendez told him, “Do it, before I take the gun away and shoot you.†Sanchez then shot Reyes eight times “[a]ll
over his body†and “took off.†Mendez
told Sanchez he threw the gun away during a high speed chase with police. Mendez said he was riding in a brown Honda
during the chase. Sanchez acknowledged
he was a member of Vicky’s Town (VST), a Sureño gang,
and stated that other gang members threatened to kill him if he did not kill
someone.
Later, Sanchez was interviewed a
second time while Mendez was present.
Mendez was instructed not to speak to Sanchez, and Mendez did as he was
instructed. Sanchez again admitted
driving Cruz’s car and shooting Reyes.
When he pulled alongside Reyes, Mendez handed him a .22-caliber revolver
and told him to shoot. Sanchez had been
a member of VST for seven years.
Cruz’s father testified that in
November 2006 Cruz drove a gray Ford Taurus.
At approximately 11:30 a.m. on November 15, 2006, the day of the
shooting, he observed two men arrive at his home, which he shared with Cruz,
briefly go inside, and then leave in Cruz’s car.
On November 21, 2006, six days after
the shooting, law enforcement found a loaded .22-caliber revolver with a
nine-round capacity next to the passenger side of a tan or silver Honda that
had been involved in a chase with the California Highway Patrol. A ballistics expert testified that that two
bullets recovered from Reyes’s body most likely were fired from that gun.
On November 30, 2006, two weeks
after the shooting, a police officer had a consensual encounter with
defendants. Mendez was wearing blue
shoes and a blue belt with the number 13 on the buckle and had two Sureño
tattoos (the roman numeral XIII and the word “SURâ€) on his left hand. He said he had been a Sureño
for about a year. Sanchez had VST and
Sureño tattoos and said he was a Sureño
and a member of VST, as was Mendez.
A gang expert testified that in
2006, VST consisted of 188 members and was a subset of the Sureño
gang in Stockton since 1985. Both are
criminal street gangs. They identify
with the number 13, the color blue, and the word “Sur.†Norteños are their enemies and
identify with the color red. Norteños
wear a Mongolian hair style (a shaved head with a ponytail in the back), and
Sureños usually have shaved heads or close-cut hairstyles. Another gang expert opined that defendants
were both active Sureño and VST gang members on the date Reyes was shot, that
Reyes’s murder was perpetrated for the benefit of, in association with, or at
the direction of the Sureño/VST gang, and that Reyes was shot because he was
believed to be a Norteño. The expert
explained that Reyes’s murder would benefit the gang by instilling fear in the
community and giving status to the gang and the perpetrator within the gang,
even if the victim was not a rival gang member.
II
The Defense
Sanchez’s defense was that he made a
false confession and that Reyes was shot by some Norteños. Sanchez called several witnesses to testify
in his defense. Reyes’s brother-in-law
testified that shortly before the shooting, he saw a Ford Taurus slowly drive
past his house, where Reyes was living at the time. There were four occupants, each of whom was
wearing a red shirt and a red hat.
Reyes’s niece, who was 15 years old
at the time of the shooting, also saw a four-door Ford Taurus drive past her
home while she and Reyes were outside earlier that day. The driver was a Hispanic man in his twenties
with a Mongolian hair style and a red band in his hair. There were two people in the two front seats
and three people in the backseat, and the driver appeared to be “mad-doggingâ€
Reyes.
Arthur Gunter, who lived near where
the shooting occurred, observed a gray Ford Taurus “flying past†immediately
after the shots were fired. There were
four Hispanic men in the car and they were all wearing red. He identified Cruz as the driver and directed
officers to Cruz’s home, where they observed what appeared to be the same gray
Ford Taurus Gunter observed after the shooting.
Six months before Reyes was killed,
Reyes’s cousin witnessed a Norteño confront Reyes and ask
Reyes “why he would spray paint [a] 13 in a Norteño area
of town.â€
Mendez did not submit any evidence
in his defense. During closing argument,
his counsel did not dispute that Mendez was present when Sanchez shot Reyes or
that it was his (Mendez’s) gun that was used to shoot Reyes; rather, he
suggested that Mendez did not know that Sanchez intended to shoot Reyes when he
(Mendez) handed him the gun. Mendez’s
counsel argued that Mendez “should be a witness in this case, not a defendant.â€
DISCUSSION
I
The Trial
Court Properly Instructed the Jury on “Developmental Disability†at Sanchez’s
Competency Hearing
Sanchez first contends “[t]he trial
court erred by including ‘developmental disability’ in the jury instruction on
incompetence, as [he] did not have a developmental disability under
law, and the error misled the jury regarding
[his] mental disorder, in violation of [his] ADDIN
BA xc <@con> xl 20 s DUNGQA000052 l "fourteenth amendment" fourteenth amendment
right to a fair trial of his competence to stand trial.†We are not persuaded.
Prior to trial, Sanchez’s attorney
raised an issue concerning Sanchez’s competence to stand trial. The trial court suspended proceedings,
appointed Dr. John Chellsen, a clinical psychologist, and Dr. Gary Cavanaugh, a
psychiatrist, to evaluate Sanchez, and scheduled a hearing on Sanchez’s
competency. ( ADDIN BA xc <@osdv> xl 13 s
DUNGQA000053 xpl 1 l "§§ 1368, 1369" §§
1368, 1369.) A jury found Sanchez competent to stand
trial.
Three doctors testified on Sanchez’s
behalf at the competency hearing.
Chellsen concluded Sanchez was incapable of cooperating with
counsel. He initially diagnosed Sanchez
with “mild mental retardation and mixed specific developmental disorders.†One year later, after additional test results
were made available, Chellsen determined that his “initial diagnosis . . . of
mental retardation was erroneous,†and that Sanchez’s “overall IQ score [was
in] what’s called the borderline range, which is somewhere between mentally
retarded and low average. And so he
would merit the diagnosis [of] learning disorder, not otherwise
specified.†When asked if “that disorder
[is] recognized in the psychiatric and the scientific community,†Chellsen
responded, “It’s a recognized diagnosis.
It’s not as precise of one as mental retardation or a -- some other
major psychiatric disorders, but nonetheless, signifies impairment.†During cross-examination, Chellsen was shown
a videotape of Sanchez being interviewed by a detective and thereafter observed
that Sanchez “may have been less than candid and not evidencing his best
interviews with me.†Chellsen
nevertheless concluded Sanchez was not competent to
trial.
Dr. Roger Katz, a
psychologist retained by Sanchez, also testified on
Sanchez’s behalf. He evaluated Sanchez
in June 2008 and opined that Sanchez was “legally incompetent†at the time of
the evaluation. Katz explained that
while Sanchez’s test scores “fell in the mildly retarded to the borderline
range of intelligence,†“[t]echnically [he] was not mentally retarded
. . . because his nonverbal reasoning and problem solving skills were
in the normal range.†ADDIN
BA xc <@osdv> xl 12 s DUNGQA000056 xpl 1 l "ART 243, 248" When asked to explain the difference between
mental retardation and a learning disorder, Katz stated, “Basically both mental
retardation and a learning disability fall in the general classification of a
developmentally [sic] disability.†On cross-examination Katz was shown evidence
of a discussion between Sanchez and his mother regarding a codefendant and the
codefendant’s plea deal. Katz found such
evidence “reflected more of an understanding of the legal situation†than he
had previously observed, and that it “move[d] the needle a little bit more in
the direction that he might be competent.â€
Cavanaugh was the third doctor to
testify on Sanchez’s behalf. Following
his initial evaluation, Cavanaugh concluded that Sanchez “was not able to
rationally cooperate with his attorney, and . . . not competent†to stand
trial. He believed Sanchez’s
intellectual functioning was “in the mentally retarded range†but was not sure
“whether it was a developmental disability . . . or whether it was acquired
. . . .†After a follow-up evaluation in
August 2008, Cavanaugh determined that Sanchez had improved but was still
incompetent to stand trial. Thereafter,
Cavanaugh “received a large amount of material from the D.A.’s office,â€
including copies of Sanchez’s police interrogations, recordings and transcripts
of jail visits, and various letters written to and by Sanchez. After reviewing those materials, Cavanaugh
concluded Sanchez was “totally competent.â€
Dr. Gary Westcott, a clinical
psychologist who had worked at Valley Mountain Regional Center (VMRC) from 1986
to June 2007, testified for the prosecution.
He explained that mental retardation is a developmental disability. After reviewing a report prepared by another
doctor who was affiliated with VMRC, Westcott determined that Sanchez did not
meet the diagnostic criteria for support at VMRC. Specifically, he did “not have a
developmental disability as defined in California Statute,†nor did he meet the
criteria “for assigning a diagnosis of mental retardation.†Westcott did find that Sanchez “had a very
severe language based learning disability . . . .†However, “[p]ersons whose handicapping
condition is a result of a learning disability are specifically excluded . . .
from Regional Center services, and [Sanchez] was excluded on that basis.†“[L]earning disabilities are recognized as
disorders . . . .â€
During the jury instruction
conference, Sanchez, through his counsel, objected to the court instructing the
jury in the language of ADDIN
BA xc <@trt> xl 16 s DUNGQA000004 l "CALCRIM No. 3451" CALCRIM No. 3451
to the extent the instruction referenced “developmental disability,†arguing
that “[t]here’s no evidence of developmental disability,†and that he was not
contending he had a developmental disability; rather, he was proceeding on the
theory that he was incompetent due to a “mental disorder.†He also asserted that the instruction was
confusing in that it could be interpreted as stating that “developmental
disability is a prerequisite to a finding of incompetence, which is not
correct.†Accordingly, he requested the
court omit the language concerning developmental disability in ADDIN
BA xc <@$trt> xl 16 s DUNGQA000004 CALCRIM No. 3451. The prosecution opposed the request, noting
that Sanchez had “two doctors come in here or he relied upon two doctors that
indicated that [he] was mentally retarded.â€
The trial court found that there was significant evidence that Sanchez
is mildly retarded and that the instruction should be given with the
developmental disability language intact.
With respect to Sanchez’s assertion that the instruction was confusing,
the trial court disagreed, noting that the instruction does not state that “you
have to have a developmental disability to be incompetent†and explaining that
it intended to instruct the jury “that not every instruction applies.â€
Thereafter, the trial court
instructed the jury in the language of ADDIN
BA xc <@$trt> xl 16 s DUNGQA000004 CALCRIM No. 3451
as follows:
“You must decide whether the
defendant is mentally competent to stand trial.
That is the only purpose of this proceeding.
“Do not consider whether the
defendant is guilty or not guilty of any crime or whether he was sane or insane
at the time of the alleged crime or that any alleged crime was committed.
“The defendant is mentally competent
to stand trial if he can do all of the following:
“1. Understand the nature and
purpose of the criminal proceedings against him;
“2. Assist, in a rational manner,
his attorney in presenting his defense; and
“3. Understand his own status and
condition in the criminal proceedings.
“The law presumes that a defendant
is mentally competent. In order to overcome this presumption, the defendant
must prove that it is more likely than not that the defendant is now mentally
incompetent because of a mental disorder or developmental disability.
developmental disability is a disability that begins before a person is 18
years old and continues or is expected to continue for an indefinite period of
time. It must be a substantial handicap
and does not include other handicapping conditions that are solely physical in
nature.
“Examples of developmental
disabilities include mental retardation and conditions closely related to
mental retardation or requiring treatment similar to that required for mentally
retarded individuals.â€
“A trial court has a duty to
instruct on general principles of law that are ‘closely and openly connected to
the facts before the court and that are necessary for the jury’s understanding
of the case.’ †( ADDIN BA xc <@cs> xl 41 s
DUNGQA000005 xhfl Rep xpl 1 l "People
v. Moye (2009)
developmental disability, and under the circumstances of this case, an
instruction addressing that issue was necessary for the jury’s understanding of
the case.
Chellsen initially diagnosed Sanchez
with mild mental retardation
and “mixed specific developmental disorders†and later found his overall IQ was
somewhere between mentally retarded and low average. ADDIN
BA xc <@osdv> xl 12 s DUNGQA000062 xpl 1 l "ART 130, 143" While Katz concluded that Sanchez technically
was not mentally retarded, he noted that Sanchez’s test scores “fell in the
mildly retarded to the borderline range of intelligence
. . . .†Katz also stated
a learning disability, like mental retardation, falls in the general
classification of developmental disability.
While Sanchez ultimately decided not to argue that he was mentally
retarded or otherwise developmentally disabled, given the aforementioned
evidence, the trial court did not err in instructing the jury on how to
evaluate the evidence presented.
Contrary to Sanchez’s assertion, the
instruction was not reasonably likely to confuse the jury. Sanchez contends “[t]he inclusion and
definition of ‘developmental disability’ in ADDIN
BA xc <@$trt> xl 16 s DUNGQA000004 CALCRIM No. 3451 would
confuse a reasonable juror and at a minimum, make [his] cognitive defects seem
insignificant, as the testimony was clear that [his] deficits did not rise to
the level of a developmental disability under state law.â€
The jury was instructed, consistent
with ADDIN BA xc <@osdv> xl 12 s
DUNGQA000063 l "section 1367" section 1367,
that any mental incompetency must be the result of a “mental disorder
common sense’ [citation] and presume they generally understand and follow
instructions [citation].†( ADDIN BA xc <@cs> xl 45 s
DUNGQA000006 xhfl Rep xpl 1 l "People
v. McKinnon (2011)
have been confused had the portions of the instruction referring to
developmental disability been excised given the evidence presented. We also note that Sanchez was free to argue
to the jury that his alleged incompetence stemmed from a mental disorder, and
thus, whether he was mentally retarded or otherwise suffered from a
developmental disability was not relevant to the jury’s determination. Indeed, his counsel did just that.
On this record we have no trouble
concluding that the trial court properly instructed the jury regarding
“developmental disability†pursuant to ADDIN
BA xc <@$trt> xl 16 s DUNGQA000004 CALCRIM No. 3451.
II
Any Potential
Error in Admitting Evidence Mendez Was Present During Sanchez’s Second
Interview with Law Enforcement Was Harmless
Sanchez next
contends that the admission of evidence that Mendez was present and remained
silent while Sanchez made statements implicating himself and Mendez in Reyes’s
murder was error under the Aranda-Bruton
rule (
ADDIN BA xc <@cs> xl 37 s DUNGQA000007 xhfl Rep xpl 1 l "People
v. Aranda (1965)
v. Aranda (1965)
63 Cal.2d 518 ( ADDIN BA xc <@$cs> xl 6 s
DUNGQA000007 xpl 2
ADDIN BA xc <@cs> xl 60 s
DUNGQA000008 xhfl Rep xpl 1 l "Bruton v. United
States (1968)
v. United States (1968) 391 U.S. 123 [20 L.Ed.2d
476] ( ADDIN BA xc <@$cs> xl 6 s
DUNGQA000008 xpl 2
and under the ruling of ADDIN
BA xc <@cs> xl 59 s DUNGQA000009 xhfl Rep l "
U.S. 36 [158 L.Ed.2d 177]"
v. Washington (2004)
541 U.S. 36 [158 L.Ed.2d 177] ( ADDIN BA xc <@$cs> xl 8 s
DUNGQA000009 xpl 1
because “any jury would have taken [Mendez’s] silence as corroborative
of [Sanchez’s] statements about the shooting and the involvement of both of
them.â€
specifically, Sanchez asserts that “Mendez’s silence corroborated and endorsed
[Sanchez’s] confession, which effectively made Mendez a witness against
[Sanchez], a witness [Sanchez] was unable to cross-examine because Mendez did
not testify at trial.†Sanchez raises an
interesting issue; however, we need not reach it because any error in admitting
the challenged evidence was harmless under any standard.
During the motions in limine, the
prosecutor indicated she intended to introduce a videotape of a “dual
interview†of defendants. She explained
that she would edit the videotape such that the Mendez jury would be shown only
the dialogue between the detective and Mendez, and the Sanchez jury would only
be shown the dialogue between the detective and Sanchez. Sanchez objected, arguing that “the evidence
. . . that the codefendant [Mendez] is present and silent during the . . .
dialogue between the detective and [Sanchez] does create an
audiotape of the interview rather than a videotape. The trial court disagreed, explaining that
codefendant is a declarant, and Mendez is not a declarant. The court also rejected Sanchez’s assertion
that Mendez’s silence amounted to an adoptive admission.
We need not decide whether the trial
court erred in admitting the challenged evidence because any error was harmless
beyond a reasonable doubt. ( ADDIN BA xc <@cs> xl 45 s
DUNGQA000010 xhfl Rep xpl 1 l "People
v. Jennings (2010)
detailed confession in which he admitted driving the car and shooting
Reyes. Moreover, details of his
confession were corroborated by other evidence concerning the type of gun used
(a .22-caliber revolver), what became of the gun (recovered following a high
speed chase involving a brownish Honda), and the car used in the shooting
(Cruz’s gray Ford Taurus). On this
record, we conclude beyond a reasonable doubt that the jury would have rejected
Sanchez’s false confession defense and reached the same verdict had it not
learned that Mendez was present and remained silent during the second interview
at which Sanchez again confessed to driving the car and shooting Reyes. This is particularly true where, as here, the
prosecutor did not comment on Mendez’s silence at anytime.
III
Defendants’
Sentences on Count 2 Must Be Modified
Defendants
each contend their sentences for the gang enhancement on count 2 should be
reduced from 10 to 5 years. Sanchez also
contends that the trial court should have stayed one of the 25-year-to-life
firearm enhancements on count 2 pursuant to ADDIN
BA xc <@osdv> xl 33 s DUNGQA000065 l "section 12022.53,
subdivision (f)" section
12022.53, subdivision (f).
We agree with both contentions and further find as to Mendez only that
the trial court should have stayed the gang enhancement on count 2 pursuant to ADDIN
BA xc <@osdv> xl 36 s DUNGQA000066 l "section 12022.53,
subdivision (e)(2)" section
12022.53, subdivision (e)(2).
As
previously discussed, both defendants were convicted in count 2 of shooting a
firearm from a vehicle pursuant to former ADDIN
BA xc <@osdv> xl 30 s DUNGQA000067 l "section 12034, subdivision
(c)" section
12034, subdivision (c).
As to Sanchez, the trial court imposed the upper term of 7 years, plus
two terms of 25 years to life for the ADDIN
BA xc <@osdv> xl 62 s DUNGQA000068 l "section 12022.53,
subdivision (d) and subdivisions (d) and (e)" section
12022.53, subdivision (d) and subdivisions (d) and (e)
enhancements, and 10 years for the ADDIN
BA xc <@osdv> xl 34 s DUNGQA000069 l "section 186.22,
subdivision (b)(1)" section
186.22, subdivision (b)(1) enhancement. As to Mendez, the trial court imposed the
upper term of 7 years, plus 25 years to life for the ADDIN
BA xc <@osdv> xl 42 s DUNGQA000070 l "section 12022.53,
subdivisions (d) and (e)" section 12022.53, subdivisions (d)
and (e) enhancement, and 10 years for the ADDIN
BA xc <@$osdv> xl 34 s DUNGQA000069 section 186.22, subdivision (b)(1)
enhancement. The court then stayed both
defendants’ sentences on count 2 pursuant to ADDIN
BA xc <@osdv> xl 11 s DUNGQA000071 l "section 654" section
654.
The
gang enhancement statute, ADDIN
BA xc <@$osdv> xl 34 s DUNGQA000069 section
186.22, subdivision (b)(1), provides in part as follows:
"Except
as provided in paragraphs (4) and (5), any person who is convicted of a felony
committed for the benefit of . . . any criminal street gang . . . shall, upon
conviction of that felony, in addition and consecutive to the punishment
prescribed for the felony or attempted felony of which he or she has been
convicted, be punished as follows:
“(A)
Except as provided in subparagraphs (B) and (C), the person shall be punished
by an additional term of two, three, or four years at the court's discretion.
“(B)
If the felony is a serious felony, as defined in subdivision (c) of ADDIN
BA xc <@osdv> xl 14 s DUNGQA000072 l "Section 1192.7" Section
1192.7, the person shall be punished by an
additional term of five years.
“(C)
If the felony is a violent felony, as defined in subdivision (c) of ADDIN
BA xc <@osdv> xl 13 s DUNGQA000073 l "Section 667.5" Section
667.5, the person shall be punished by an
additional term of 10 years.â€
Because
the jury found that defendants violated ADDIN
BA xc <@$osdv> xl 16 s DUNGQA000046 section
12022.53 in the commission of count 2, count
2 is a “violent†felony within the meaning of ADDIN
BA xc <@osdv> xl 34 s DUNGQA000074 l "section 667.5, subdivision
(c)(22)" section
667.5, subdivision (c)(22) (designating “[a]ny violation of ADDIN
BA xc <@$osdv> xl 16 s DUNGQA000046 xpl 1 Section 12022.53†as a “violent
felonyâ€). Therefore, under ADDIN
BA xc <@osdv> xl 37 s DUNGQA000075 l "section 186.22,
subdivision (b)(1)(C)" section
186.22, subdivision (b)(1)(C), as the trial court found, the
additional punishment would be a fixed term of 10 years.
However,
ADDIN BA xc <@osdv> xl 31 s
DUNGQA000076 l "section 1170.1, subdivision (f)" section
1170.1, subdivision (f) provides: “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.â€
In
ADDIN BA xc <@cs> xl 50 s
DUNGQA000011 xhfl Rep l "People v.
Rodriguez (2009)
our Supreme Court held that where a defendant is subject to a firearm
enhancement and a gang enhancement based on the use of a firearm, ADDIN
BA xc <@$osdv> xl 31 s DUNGQA000076 section 1170.1, subdivision (f)
precludes imposition of both enhancements.
Here,
defendants became eligible for the 10-year gang enhancement
which use was charged and proved as provided in ADDIN
BA xc <@$osdv> xl 16 s DUNGQA000046 section 12022.53. ( ADDIN BA xc <@osdv> xl 22 s
DUNGQA000077 xpl 1 l "§ 667.5, subd. (c)(22)" §
667.5, subd. (c)(22).)
Thus, the firearm use resulted in additional punishment not only under ADDIN
BA xc <@$osdv> xl 16 s DUNGQA000046 section 12022.53, but also under ADDIN
BA xc <@osdv> xl 38 s DUNGQA000078 l "section 186.22’s
subdivision (b)(1)(C)" section
186.22, subdivision (b)(1)(C). Based on the application of ADDIN
BA xc <@$osdv> xl 31 s DUNGQA000076 section 1170.1, subdivision (f), as
interpreted by our Supreme Court in ADDIN
BA xc <@$cs> xl 45 s DUNGQA000011 xhfl Rep
supra, 47 Cal.4th at pages 508-509,
defendants should have been sentenced to 5 years (not 10) for the gang
enhancement (the punishment for the enhancement absent the firearm
element). ( ADDIN BA xc <@osdv> xl 25 s
DUNGQA000079 xpl 1 l "§ 186.22, subd. (b)(1)(B)" §
186.22, subd. (b)(1)(B) [providing for an additional five
year term if the felony is “serious,†as defined in ADDIN
BA xc <@osdv> xl 25 s DUNGQA000080 xpl 2 l "section 1192.7,
subd. (c)" § 1192.7, subd. (c)];
1192.7, subd. (c)(36) [making ADDIN
BA xc <@$osdv> xl 13 s DUNGQA000042 xpl 2 § 26100
(former ADDIN BA xc <@$osdv> xl 13 s
DUNGQA000041 xpl 3 § 12034)
a serious felony].) We shall modify
defendants’ sentences on count 2 accordingly.
We
reject the People’s suggestion that no modification is necessary because the
trial court stayed defendants’ sentences on count 2 pursuant to ADDIN
BA xc <@$osdv> xl 11 s DUNGQA000071 section 654. As Sanchez points out, should defendants’
convictions on count 1 be overturned at some point in the future, their
sentences on count 2 would no longer be stayed.
Thus, the modification sought here could have real significance.
Sanchez
also asserts that “the [trial] court should have stayed one 25-year-to-life
firearm enhancement under ADDIN
BA xc <@$osdv> xl 33 s DUNGQA000065 section
12022.53, subdivision (f).â€
That subdivision provides in pertinent part: “Only one additional term
of imprisonment under this section shall be imposed per person for each
crime. If more than one enhancement per
person is found true under this section, the court shall impose upon that person
the enhancement that provides the longest term of imprisonment.†Here, the trial court imposed two 25‑year‑to‑life
terms under ADDIN
BA xc <@$osdv> xl 62 s DUNGQA000068 section
12022.53, subdivision (d) and subdivisions (d) and (e)
in sentencing Sanchez on count 2. One of
those sentences must be stayed pursuant to ADDIN
BA xc <@$osdv> xl 33 s DUNGQA000065 section 12022.53, subdivision
(f). (See ADDIN
BA xc <@cs> xl 53 s DUNGQA000012 xhfl Rep xpl 1 l "
Cal.4th 1118, 1126, 1129"
v. Gonzalez (2008)
43 Cal.4th 1118, 1126, 1129 [“the words ‘impose’ and ‘imposed,’
as used throughout subdivision (f) [of ADDIN
BA xc <@$osdv> xl 16 s DUNGQA000046 xpl 3 section
12022.53] . . . mean impose and
then execute,†and “the Legislature intended the trial court to stay, rather
than strike, prohibited enhancements under ADDIN
BA xc <@$osdv> xl 16 s DUNGQA000046 xpl 2 section 12022.53â€].) As previously discussed, this is so even
though the entire sentence on count 2 was stayed pursuant to ADDIN
BA xc <@$osdv> xl 11 s DUNGQA000071 section 654 because in the event
Sanchez’s conviction on count 1 is overturned the sentence on count 2 will be
executed.
While
not raised by Mendez, we note that ADDIN
BA xc <@$osdv> xl 36 s DUNGQA000066 section
12022.53, subdivision (e)(2) provides in pertinent part: “An enhancement for participation in a
criminal street gang . . . shall not be imposed on a person in
addition to an enhancement imposed pursuant to this subdivision, unless the
person personally used or personally discharged a firearm in the commission of
the offense.†Here, the prosecution did
not allege and the jury did not find that Mendez personally used or personally
discharged a firearm in the commission of count 2. Accordingly, his sentence for the gang
enhancement on count 2 must be stayed pursuant to ADDIN
BA xc <@$osdv> xl 36 s DUNGQA000066 section 12022.53, subdivision
(e)(2).
We
shall reduce defendants’ sentences for the gang enhancement on count 2 from 10
to 5 years, stay Sanchez’s sentence for the ADDIN
BA xc <@osdv> xl 45 s DUNGQA000081 l "section 12022.53,
subdivisions (d) and (e)(1)" section 12022.53, subdivisions (d)
and (e)(1) firearm enhancement on count 2 pursuant
to ADDIN BA xc <@$osdv> xl 33 s
DUNGQA000065 section
12022.53, subdivision (f), and stay Mendez’s sentence for the
gang enhancement on count 2 pursuant to ADDIN
BA xc <@$osdv> xl 36 s DUNGQA000066 section
12022.53, subdivision (e)(2).
IV
The Trial
Court’s Handling of the Jury’s Readback Request Did Not Violate Mendez’s
Constitutional Rights and Any Possible Violation of His Statutory Rights Was
Harmless
Mendez contends the trial court
deprived him of his federal and state constitutional
to due process and the presence of counsel and violated
his statutory rights under ADDIN
BA xc <@osdv> xl 21 s DUNGQA000082 l "sections 977 and
1138" sections 977 and 1138
when it allowed testimony to be read back to the jury when neither he nor his
attorney was present. As we shall
explain, there was no violation of Mendez’s constitutional rights and any
possible violation of his statutory rights was harmless.
During deliberations, the jury requested
a readback of Ming and Gunter’s testimony.
The trial court advised the parties of the request and asked if Mendez
was willing to waive his appearance.
Mendez responded that he was not willing to waive his appearance. Citing ADDIN
BA xc <@cs> xl 38 s DUNGQA000013 xhfl Rep xqt l "
Cal.App.974" People v. McCoy (2005) 133 Cal.App.4th 974, the trial court
advised Mendez that he did not have a right to be present and indicated its
intent to send the court reporter into the jury room to read the requested
testimony. Prior to doing so, the court
admonished jurors that they could speak to the court reporter “only for one
purpose and that is concerning the mechanics of reading [the testimony]
back. In other words, ‘Could you read
that again? Could you say that word
again?’ But do not, obviously you can’t
say, ‘What did the witness mean by that?’
That’s for the jury to decide.â€
The United States Supreme Court has
never held that allowing a readback of witness testimony outside the presence
of a defendant and his attorney is a violation of the federal
Constitution. (See ADDIN
BA xc <@cs> xl 49 s DUNGQA000014 xhfl Rep xpl 1 l "
Cal.App.4th at p. 982.) California
Supreme Court decisions that have considered the issue have uniformly held
there is no federal or state constitutional violation
when a readback occurs outside the presence of a defendant or his
attorney. ( ADDIN BA xc <@$id> xl 18 s ID
xhfl Rep xpl 1 Id.
at pp. 982-983; citing, e.g., ADDIN
BA xc <@cs> xl 40 s DUNGQA000015 xhfl Rep xpl 1 l "
Cal.4th 916, 963" People v. Cox (2003) 30 Cal.4th 916, 963 [“rereading of
testimony is not a critical stage of the proceedingsâ€], disapproved on other
grounds in ADDIN BA xc <@cs> xl 51 s
DUNGQA000016 xhfl Rep xpl 1 l "People
v. Doolin (2009)
BA xc <@cs> xl 41 s DUNGQA000017 xhfl Rep xpl 1 l "
Cal.4th 195, 251" People v. Pride (1992) 3 Cal.4th 195, 251 [no violation of a
defendant’s rights to counsel and due process even though “no one was present
(the court, counsel, or defendant) to monitor or report the readbackâ€].) The fact that Mendez refused to “waive his
appearance†at the readback does not change the equation. While the better practice would have been to
conduct the readback in Mendez’s presence given his apparent desire to be
present, there was no constitutional violation in the court’s failure to do so.
Mendez also asserts that the
readback of testimony here violated his statutory rights under ADDIN
BA xc <@$osdv> xl 21 s DUNGQA000082 sections 977 and 1138.
ADDIN
BA xc <@osdv> xl 11 s DUNGQA000085 l "Section 977" Section 977
provides in pertinent part: “In all
cases in which a felony is charged, the accused shall be present at the
arraignment, at the time of plea, during the preliminary hearing, during those
portions of the trial when evidence is taken before the trier of fact, and at
the time of the imposition of sentence.
The accused shall be personally present at all other proceedings unless
he or she shall, with leave of court, execute in open court, a written waiver
of his or her right to be personally present . . . .†( ADDIN BA xc <@osdv> xl 19 s
DUNGQA000086 xpl 1 l "§ 977, subd. (b)(1)" §
977, subd. (b)(1).)
Mendez’s absence from the readback
of the witnesses’ testimony violated ADDIN
BA xc <@osdv> xl 31 s DUNGQA000087 l "section 977, subdivision
(b)(1)" section 977,
subdivision (b)(1), because Mendez did not execute in open court a written
waiver of his right to be personally present.
(
ADDIN BA xc <@cs> xl 42 s DUNGQA000018 xhfl Rep xpl 1 l "
Cal.4th 491, 598" People v. Avila (2006) 38 Cal.4th 491, 598.) “But the error was ‘statutory only and thus
“is reversible only if it is reasonably probable the result would have been
more favorable to defendant absent the error.†[Citation.]’ [Citation.]
Because [Mendez] provides no basis on which we could conclude the result
of his trial would have been different had he [or his counsel] been present at
the readback [citation], we find the violation of ADDIN
BA xc <@$osdv> xl 11 s DUNGQA000085 section 977 was harmless.†( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)
ADDIN
BA xc <@osdv> xl 12 s DUNGQA000088 l "Section 1138" Section 1138
provides, “After the jury have retired for deliberation, if there be any
disagreement between them as to the testimony, or if they desire to be informed
on any point of law arising in the case, they must require the officer to
conduct them into court. Upon being
brought into court, the information required must be given in the presence of,
or after notice to, the prosecuting attorney, and the defendant or his counsel,
or after they have been called.â€
“Although the primary concern of ADDIN
BA xc <@$osdv> xl 12 s DUNGQA000088 section 1138 is the jury’s right to be apprised of the evidence, a violation of the
statutory mandate implicates a defendant’s right to a fair trial conducted
‘ “substantially [in] accord[ance with] law.†’ [Citations.]â€
(
ADDIN BA xc <@cs> xl 70 s DUNGQA000019 xhfl Rep xpl 1 l "
Cal.4th 894, 1007, overruled on other grounds" People v. Frye (1998) 18 Cal.4th 894, 1007, overruled on other
grounds in ADDIN BA xc <@$cs> xl 52 s
DUNGQA000016 xhfl Rep xpl 1 People
v. Doolin, supra, 45 Cal.4th at p. 421, fn 22.) As previously discussed, however, the trial
court’s handling of the readback did not violate Mendez’s right to a fair
trial, and any violation of his statutory rights was harmless.
V
The Trial
Court Properly Instructed the Jury on Flight
Mendez next contends the flight
instruction given by the trial court ( ADDIN BA xc <@trt> xl 15 s
DUNGQA000020 xpl 1 l "CALCRIM No. 372" CALCRIM No. 372)
impermissibly lowered the burden of proof and was not supported by substantial
evidence. We disagree with both
contentions.
“On review, we examine the jury
instructions as a whole, in light of the trial record, to determine whether it
is reasonably likely the jury understood the challenged instruction in a way
that undermined the presumption of innocence or tended to relieve the
prosecution of the burden to prove defendant’s guilt beyond a reasonable
doubt.†( ADDIN BA xc <@cs> xl 49 s
DUNGQA000021 xhfl Rep xpl 1 l "People
v. Paysinger (2009)
Over Mendez’s objection, the trial
court instructed the jury with ADDIN
BA xc <@$trt> xl 15 s DUNGQA000020 CALCRIM No. 372
as follows: “If the defendant fled
immediately after the crime was committed, or after he was accused of
committing the crime, that conduct may show that he was aware of his
guilt. If you conclude that the
defendant fled or tried to flee, it is up to you to decide the meaning and
importance of that conduct. However, the
evidence that the defendant fled or tried to flee cannot prove guilt by
itself.â€
Mendez asserts “the flight
instruction undermined the presumption that [he] lacked the requisite mental
state and thereby relieved the prosecution of the burden to prove the offenses
beyond a reasonable doubt and deprived [him] of a jury verdict†because it
presumes the crime was committed. He
also observes that “ ADDIN BA xc <@$trt> xl 15 s
DUNGQA000020 CALCRIM No. 372 varies significantly from
the flight instruction contained within ADDIN
BA xc <@st> xl 24 s DUNGQA000022 l "Penal Code section
1127c" Penal Code section
1127c.†We rejected identical
arguments in ADDIN BA xc <@$cs> xl 63 s
DUNGQA000021 xhfl Rep People
v. Paysinger, supra, 174 Cal.App.4th at pages 30‑31, and see no
reason to revisit that decision here.
Mendez also asserts there
was no substantial evidence to support giving the flight instruction because
“[m]erely being driven from the scene†did not constitute flight, and “[g]iven
the frequency of [his] contact with law enforcement officers his flight [eight
months after the shooting] cannot logically be attributed to a consciousness of
guilt for the shooting . . . .â€
“ ‘In
general, a flight instruction “is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his
movement was motivated by a consciousness of guilt.†’ [Citations.] Evidence that a defendant left the scene is
not alone sufficient; instead, the circumstances of departure must suggest ‘a
purpose to avoid being observed or arrested.’
[Citations.] To obtain the
instruction, the prosecution need not prove the defendant in fact fled, i.e.,
departed the scene to avoid arrest, only that a jury could find the defendant
fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]â€
(
ADDIN BA xc <@cs> xl 44 s DUNGQA000023 xhfl Rep xpl 1 l "
Cal.4th 313, 328" People v. Bonilla (2007) 41 Cal.4th 313, 328.)
Here,
the record supported the inferences for the flight instruction. Neighbors reported hearing tires squealing
and seeing a car “flying down the street†immediately after the shooting. Mendez himself told officers that after the
shooting, he and Sanchez took off “to get away.†That Mendez was not driving the car was a
fact for the jury to weigh in light of the permissive language of the
instruction. Moreover, the circumstances
gave rise to an inference of consciousness of guilt. Mendez did not attempt to help Reyes, nor did
he attempt to call for or seek assistance.
From this evidence, the jury could conclude that the circumstances of
Mendez’s departure evidenced his guilt as an aider and abettor in the
shooting. ( ADDIN BA xc <@cs> xl 47 s
DUNGQA000024 xhfl Rep xpl 1 l "People
v. Abilez (2007)
can infer guilt when defendant chose not to stay in house where victim killed];
ADDIN BA xc <@cs> xl 46 s
DUNGQA000025 xhfl Rep xpl 1 l "People
v. Jackson (1996)
[the jury reasonably may infer guilt from evidence that the defendant ran from
the scene of the murder down the street to a vehicle and then drove home],
abrogated on other grounds as stated in ADDIN
BA xc <@cs> xl 61 s DUNGQA000026 xhfl Rep xpl 1 l "
2009)
1073, 1080.)
There
was also evidence Mendez fled out the back door of his home and hid in the
backyard when law enforcement arrived to execute a search warrant several
months after the shooting. To the extent
evidence was presented that would support a finding that Mendez fled was for
reasons unrelated to Reyes’s shooting, those were facts for the jury to
consider in determining the meaning of Mendez’s conduct.
On
this record, the jury reasonably could infer that Mendez’s flight from the
scene of the crime or from his home when law enforcement arrived to execute a
search warrant reflected consciousness of guilt. ( ADDIN BA xc <@$cs> xl 45 s
DUNGQA000024 xhfl Rep xpl 1
v. Abilez,
supra, 41 Cal.4th at p. 522.)
In
any event, any possible error was manifestly harmless. The instruction did not
figure in the prosecutor's closing argument.
Moreover, the instruction did not posit the existence of flight; both
the existence and significance of flight were left to the jury. (See ADDIN
BA xc <@cs> xl 44 s DUNGQA000027 xhfl Rep xpl 1 l "
(1988)
favorable to Mendez would have resulted had the instruction not been
given. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1
VI
Defendants’ Sentences on Count 1
Must Be Modified
Mendez
contends, and the People concede, that his sentence of life without the
possibility of parole on count 1 for the special circumstance murder of Reyes
is unauthorized because he was just 15 years old at the time of the
shooting. We agree.
ADDIN
BA xc <@osdv> xl 13 s DUNGQA000089 l "Section 190.5" Section
190.5 provides in pertinent part: “The penalty for a defendant found guilty of
murder in the first degree, in any case in which one or more special
circumstances enumerated in ADDIN
BA xc <@osdv> xl 13 s DUNGQA000090 l "Section 190.2" Section
190.2 or 190.25 has been found to be true
under ADDIN BA xc <@osdv> xl 13 s
DUNGQA000091 l "Section 190.4" Section
190.4, who was 16 years of age or older
and under the age of 18 years at the time of the commission of the crime, shall
be confinement in the state
prison
for life without the possibility of parole or, at the discretion of the court,
25 years to life.†(§ 190.5,
subd. (b).) However, “[f]or
juveniles under 16 who were 14 or 15 when the crime was committed, a life term
without possibility of parole is not permitted, leaving a term of 25 years to
life with possibility of
parole.†(People Demirdjian (2006) ADDIN
BA xc <@oppt> xl 22 s DUNGQA000092 xpl 1 l "144 Cal.App.4th 10,
17" 144
Cal.App.4th 10, 17.)
Mendez
was 15 years old at the time of the murder.
Accordingly, his sentence of life without the possibility of parole is
unauthorized. The People request that
“the case be remanded for resentencing, thus giving the trial court an
opportunity to reevaluate the sentence in accordance with ADDIN
BA xc <@$osdv> xl 13 s DUNGQA000089 section
190.5.â€
We see no need to remand the case because the 25-year-to-life sentence
on the substantive offense as well as the 25-year-to-life sentence on the
firearm enhancement are mandatory.
In
addition, we directed the parties to submit supplemental letter briefs
addressing whether the trial court erred when it “merged†defendants’
sentences of 25-year-to-life for the firearm enhancement into the sentence for
the substantive offense on Count 1. All
responded that the trial court had erred and that defendants’ sentences for the
firearm enhancement should have been imposed consecutively. We agree.
First, the merger doctrine does not apply to enhancements. (See ADDIN
BA xc <@cs> xl 56 s DUNGQA000028 xhfl Rep xpl 1 l "
Cal.App.4th 1371, 1373-1374" People
v. Sanders (2003) 111 Cal.App.4th 1371, 1373-1374.) Moreover, ADDIN
BA xc <@osdv> xl 33 s DUNGQA000093 l "section 12022.53,
subdivision (d)" section 12022.53,
subdivision (d) expressly provides that the defendant “shall be punished by
an additional and consecutive term of
imprisonment in the state prison for 25 years to life.†(Italics added; see also ADDIN
BA xc <@ru> xl 34 s DUNGQA000029 xpl 1 l "Cal. Rules of Court,
rule 4.405(3)" Cal. Rules of Court,
rule 4.405(3) [defining “enhancement†as “an additional term of
imprisonment added to the base termâ€]; see also ADDIN
BA xc <@cs> xl 52 s DUNGQA000030 xhfl Rep xpl 1 l "
Cal.App.4th 1355, 1362-1363" People
v. Kim (2011) 193 Cal.App.4th 1355, 1362‑1363 [holding that ADDIN
BA xc <@$osdv> xl 33 s DUNGQA000093 xpl 2 section 12022.53, subdivision (d) “triggers
a mandatory consecutive
25-year-to-life sentence,†which the trial court has no discretion to modify].)
Accordingly, we shall modify
Mendez’s sentence on count 1 in pertinent part as follows: 25 years to life in state prison for the
special circumstance murder, plus a consecutive 25 years to life for the ADDIN
BA xc <@$osdv> xl 42 s DUNGQA000070 section 12022.53,
subdivisions (d) and (e) enhancement.
We shall modify Sanchez’s sentence on count 1 in pertinent part as
follows: life without the possibility of
parole for the special circumstance murder, plus a consecutive 25 years to life
for the ADDIN BA xc <@$osdv> xl 33 s
DUNGQA000093 section 12022.53, subdivision (d)
enhancement.
VI
The Trial Court Properly Imposed a
Court Facilities Assessment Pursuant to ADDIN
BA xc <@$st> xl 29 s DUNGQA000003 Government
Code Section 70373
Finally,
Mendez contends the trial court erred in imposing a court facilities assessment
because the statute authorizing the assessment, ADDIN
BA xc <@$st> xl 29 s DUNGQA000003 Government Code section 70373, was
enacted after the date of his crimes. We
disagree.
ADDIN
BA xc <@$st> xl 29 s DUNGQA000003 Government Code section 70373,
provides in pertinent part: “To ensure
and maintain adequate funding for court facilities, an assessment shall be
imposed on every conviction for a
. . . . The assessment
shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or
felony and in the amount of thirty-five dollars ($35) for each
infraction.†( ADDIN BA xc <@st> xl 32 s
DUNGQA000031 xpl 1 l "Gov. Code, § 70373, subd. (a)(1)" Gov.
Code, § 70373, subd. (a)(1), added by Stats. 2008, ADDIN
BA xc <@osdv> xl 14 s DUNGQA000094 xpl 1 l "ch. 311, §
6.5" ch.
311, § 6.5.)
The effective date of the statute is January 1, 2009. (See Stats. 2008, ADDIN
BA xc <@osdv> xl 7 s DUNGQA000095 xpl 1 l "ch. 311" ch.
311.)
Mendez
committed the subject crimes on November 15, 2006. The jury convicted him on December 7,
2009. As part of his sentence, the trial
court imposed a $120 court facilities assessment ($30 for each of his four felonies).
We
previously rejected a claim that this assessment violates ex post facto
principles, finding “the assessment is not punitive because it was adopted as
one component of the effort to address a budget shortfall; it is not
denominated a “fineâ€; the amount per conviction is small; and the amount is not
dependent on the seriousness of the offense.â€
(
ADDIN BA xc <@cs> xl 52 s DUNGQA000032 xhfl Rep xpl 1 l "
(2010)
see also ADDIN BA xc <@cs> xl 48 s DUNGQA000033
xhfl Rep xpl 1 l "People v. Lopez
(2010)
ADDIN BA xc <@cs> xl 55 s
DUNGQA
| Description | The trial court sentenced Sanchez to life without the possibility of parole on count 1, plus an additional 25 years to life for personally discharging a firearm and causing death in the commission of the murder, which the court ordered “merged into the life without parole.†The court imposed and stayed sentences of 25 years to life on the additional firearm enhancement and a term of life with a minimum parole eligibility of 15 years on the gang enhancement ancillary to count 1. As to count 2, the court imposed and stayed a sentence of 7 years (the upper term), plus two terms of 25 years to life for the firearm enhancements, and 10 years for the gang enhancement. As to count 4, the trial court imposed and stayed a sentence of 3 years (the upper term). |
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