P. v. Vizcarra
Filed 5/22/13 P. v. Vizcarra CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN JOSE VIZCARRA,
Defendant and Appellant.
D061878
(Super. Ct.
No. JCF25950)
APPEAL from
a judgment of the Superior Court
of
County, Christopher J. Plourd, Judge. Reversed
in part with directions; affirmed in part as modified.
Buckley
& Buckley and Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Steve Oetting and Michael Pulos,
Deputy Attorneys General, for Plaintiff and Respondent.
In this
gang-related stabbing case, a jury convicted Juan Jose Vizcarra─who was a
member of the Chicali Brazas (Chicali) criminal street gang in Brawley,
California─of (1) assaulting Jesus Zermeno with a deadly weapon, a knife
(count 2: Pen. Code, § 245, subd.
(a)(1)) (undesignated statutory references will be to the Penal Code); and (2)
attempting to dissuade a witness, Zermeno, in violation of section 136.1,
subdivision (a)(2) (hereafter section 136.1(a)(2)) (count 3). The jury found Vizcarra not guilty of
attempting to willfully, deliberately, and with premeditation murder Zermeno
(§§ 187, subd. (a), 664) as charged in count 1.
The jury
found true a count 2 allegation that Vizcarra committed assault with a deadly
weapon for the benefit of, at the direction of, or in association with a
criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, the court found
true a count 2 allegation that Vizcarra had suffered a strike prior (§ 667,
subds. (b)-(i)). A strike prior
allegation was not included in count 3 of the information.
The court
sentenced Vizcarra in this case (No. JCF25950) to an aggregate prison term of
15 years consisting of (1) the upper term of four years for his count 2
conviction of assault with a deadly weapon, doubled to eight years under the
Three Strikes law as a result of the court's true finding on the count 2 strike
prior allegation; plus (2) a consecutive middle term of two years for his
conviction of attempting to dissuade a victim or witness; and (3) a five-year
term for the gang enhancement.
name="_ftnref1" title="">[1] During the same hearing, the court also
sentenced Vizcarra to concurrent terms in two other cases: one—case No. JCF25997 (hereafter the jail
stabbing case)—involving an assault with a deadly weapon that he committed
while in custody for the present case, and another—case No. JCF23935 (hereafter
the probation revocation case)—involving revocation of probation granted to him
following his prior robbery conviction.
Vizcarra
appeals, contending (1) there is insufficient evidence to sustain his count 3
conviction of attempting to dissuade a victim or witness (§ 136.1(a)(2))
because, although the evidence may show he attempted to influence the content
of Zermeno's testimony, there is no evidence he attempted to prevent or
dissuade Zermeno from going to court, and, thus, there is no evidence he attempted
to prevent Zermeno from testifying; (2) the abstract of judgment must be
corrected (a) to reflect that he was convicted of assault with a deadly weapon
(count 2) and not attempted murder (count 1), and (b) to clarify that the gang
enhancement allegation was found true only with respect to count 2; and (3) the
court erred in both the instant case and the jail stabbing case by calculating
his custody credits with the 15 percent limitation under section 2933.1, rather
than under section 4019, and, thus, he should have been awarded 280 days of
work time credit in each case.
The
Attorney General argues the evidence is sufficient to sustain Vizcarra's count
3 conviction of attempting to dissuade a victim or witness, but agrees the
abstract of judgment contains two errors that should be corrected in the manner
Vizcarra requests. The Attorney General
also agrees the custody credits in both this case and the jail stabbing case
should have been calculated under section 4019, and, thus, the judgment in this
case should be modified as Vizcarra requests.
However, the Attorney General asserts this court should deny Vizcarra's
request to modify the custody credit determination in the unrelated jail
stabbing case because (among other things) he has not filed a notice of appeal
in that case. In addition, the Attorney
General claims Vizcarra should have been sentenced to 22 years, not 15 years,
in prison.
We conclude
the evidence is sufficient to sustain Vizcarra's count 3 conviction of
attempting to dissuade a victim or witness.
We also conclude the abstract of judgment must be corrected (1) to
reflect that he was convicted in this case of assault with a deadly weapon, not
attempted murder; and (2) to clarify that the gang enhancement allegation was
found true only with respect to count 2.
Furthermore, we modify Vizcarra's sentence in this case to award him a
total of 840 days of presentence custody credit, consisting of 560 actual days
of credit plus 280 days of conduct credit.
In
addition, we conclude the court erred and rendered an unauthorized sentence by
failing to double under the Three Strikes law the two-year sentence it imposed
for Vizcarra's count 3 conviction.
Accordingly, we reverse the sentence as to count 3 and remand this case
for resentencing subject to the court's exercise of its section 1385,
subdivision (a) power to strike the prior conviction finding.
Finally, we
conclude the court erred and rendered an unauthorized sentence by failing to
impose a five-year enhancement under section 667, subdivision (a)(1) (hereafter
section 667(a)(1)). Accordingly, we
modify the judgment to impose a five-year consecutive term for the serious
felony prior conviction under section 667(a)(1). In all other respects, we affirm the
judgment.
FACTUAL
BACKGROUND
Vizcarra,
whose Chicali gang moniker was "Shorty," stabbed Zermeno─who
was affiliated with a rival street gang─twice in the ribs with a knife,
causing him to suffer a collapsed lung.
Zermeno was hospitalized for about two weeks. At the time of the assault, Vizcarra was
accompanied by Jeffrey Ruiz, whose Chicali gang moniker was "Speedy"
and who testified at trial that he saw Vizcarra stab Zermeno.
While in
custody, Vizcarra made three phone calls─one to his fellow Chicali gang
member Fernando Flores and the others to Chicali gang associates Carlos Angulo
and Walter Lopez─that are pertinent to this appeal. Specifically, in the first phone call,
Vizcarra called Angulo. Vizcarra told
Angulo: "Ask for [Zermeno],
man. Find him, man. Do that favor for me, man, and tell him that
when he goes to court to say, 'No.' You
know what I mean?" Angulo replied,
"Yes." After briefly
discussing something else, Vizcarra told Angulo: "Hey, but—try to find that damn Jesus
Zermeno, man. All right?" Angulo responded, "All right,
then."
In the
second phone call, Vizcarra called Lopez and asked him for a
"favor." Vizcarra asked Lopez
whether he knew Zermeno, and Lopez indicated he did not. Vizcarra explained, "Uh, well the fucker
is saying . . . Supposedly, that he is snitching, man." Lopez said, "Really?" Lopez then told Vizcarra, "Wait, hold
on, I'm going to write that shit down, man." Vizcarra spelled Zermeno's name for Lopez,
who then said he would "see what's up." After informing Lopez that he (Vizcarra) was
being charged with attempted murder, Vizcarra told Lopez: "That's why I want you to [stutters] do
that favor for me, man." Lopez
responded affirmatively. Vizcarra then
said, "Find that fucker, man," adding, "We got court on Monday,
fool." Lopez replied, "All
right, fool." Vizcarra then gave
instructions to Lopez about what Zermeno should say in court:
"And then, well, if you can get a hold of him
before Monday it would be great, man.
And just tell him that if he is going to go to court, man, to just say
that it wasn't us. You know what I
mean? That he should say,
'No—.'"
Interrupting
Vizcarra, Lopez replied, "Yeah."
Vizcarra added that Zermeno should say, "[I]t's the wrong
people.'" Lopez indicated he would
do this favor for Vizcarra.
In the
third phone call, Vizcarra called Flores, whom he called
"Flako." Vizcarra asked Flores
whether he knew Zermeno, and Flores replied he did not. Vizcarra told Flores, "[I]f [Zermeno]
goes to court he should say, 'No.' You
know what I mean, man?" Flores
replied, "Yes." Vizcarra
added, "That it wasn't us, dog."
Flores responded, "Yeah, I know.
I know." Vizcarra further
explained that he "already told [Lopez]" and that Lopez had written
down Zermeno's name. Flores confirmed
Zermeno's name and told Vizcarra he had written down Zermeno's name. Vizcarra then told Flores: "All right, dog. Just figure that shit out, dog. All right? . . . Do that favor for me,
man." Flores reassured Vizcarra,
saying, "Yeah, don't trip." (1CT 226)!
Zermeno,
the victim in this case, testified for the prosecution that, on the night in
question, two Hispanic men speaking in Spanish and brandishing knives ran
towards him and one stabbed him twice in the ribs. At trial, Zermeno indicated that he did not
know the identity of the men, and he could not identify Vizcarra as the person
who stabbed him.
DISCUSSION
I. SUFFICIENCY
OF THE EVIDENCE (COUNT 3: § 136.1(
Vizcarra
first contends there is insufficient evidence to sustain his count 3 conviction
of attempting to dissuade a victim or witness (§ 136.1(a)(2)) because,
although the evidence may show he attempted to influence the content of
Zermeno's testimony, there is no evidence he attempted to prevent or dissuade
Zermeno from going to court; and, thus, there is no evidence he attempted to
prevent Zermeno from testifying.
Vizcarra's count 3 insufficiency-of-the-evidence claim rests on his
contention that section 136.1(a)(2) "is limited solely to those instances
where a defendant attempts to prevent or dissuade a witness [or victim] from
giving any testimony." Vizcarra's
contentions are unavailing.
A. Applicable Legal Principles
1. Statutory
Construction
Our
decision requires us to resolve an issue of statutory construction governed by well-established principles. The California Supreme Court has explained
that "[t]he objective of statutory construction is to determine the intent
of the enacting body so that the law may receive the interpretation that best
effectuates that intent.
[Citation.] 'We first examine the
words themselves because the statutory language is generally the most reliable
indicator of legislative intent. [Citation.]
The words of the statute should be given their ordinary and usual meaning
and should be construed in their statutory context.' [Citation.]
If the plain, commonsense meaning of a statute's words is unambiguous,
the plain meaning controls." (Fitch
v. Select Products Co. (2005) 36 Cal.4th 812, 818.)
"The
interpretation of a statute presents a question of law subject to de novo
review on appeal." (People v.
Wills (2008) 160 Cal.App.4th 728, 736; Goodman v. Lozano (2010) 47
Cal.4th 1327, 1332.)
2.
In
assessing Vizcarra's challenge to the sufficiency of the evidence, we also
apply the substantial evidence standard of
review. (See People v. Perez (1992) 2 Cal.4th 1117, 1124.) Under that standard of review, we view the
evidence "in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt." (People
v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.)
The Court
of Appeal recently explained that, "when a criminal defendant claims
insufficiency of the evidence on a particular element of the crime of which he
was convicted, we presume the evidence of that element was sufficient, and the
defendant bears the burden of convincing us otherwise. To do so, the
defendant . . . must set forth in his opening brief all of
the material evidence on the disputed element in the light most favorable to
the prosecution, and then must persuade us that that evidence cannot reasonably
support the jury's verdict." (
50, 62; see also People v. Sanghera
(2006) 139 Cal.App.4th 1567, 1574.)
The
uncorroborated testimony of a single witness is sufficient to sustain a
conviction or true finding on an enhancement allegation, "unless the
testimony is physically impossible or inherently improbable." (People
v. Scott (1978) 21 Cal.3d 284, 296.)
We do not reweigh the evidence, resolve conflicts in the evidence, or
reevaluate the credibility of witnesses.
(People v. Ochoa (1993) 6
Cal.4th 1199, 1206; People v. Jones
(1990) 51 Cal.3d 294, 314.)
B. Analysis
We are
asked to construe the meaning of section 136.1(a)(2), which, as pertinent here,
provides that "any person" is guilty of a public offense when he or
she "[k]nowingly and maliciously attempts to prevent or dissuade any
witness or victim from attending or
giving testimony at any trial . . . ."
their ordinary and usual meaning, we conclude that section 136.1(a)(2) plainly
and unambiguously prohibits any person from knowingly and maliciously
attempting to prevent or dissuade a witness or victim from either (1)
attending—that is, going to and being present at—a trial; or (2) giving
or victim attends and testifies at the trial.
As used in section 136.1(a)(2), the word "testimony" is
unqualified, indicating a legislative intent to punish any knowing and
malicious attempt to prevent a witness or victim from "giving
testimony" in any amount or form "at any trial, proceeding, or
inquiry authorized by law." Thus,
for example, in a case in which a victim might be called to testify at a trial
regarding three separate issues, a knowing and malicious attempt to prevent or
dissuade the victim from "giving testimony" on any one of those
issues would be a violation of section 136.1(a)(2) under the broad and plain
language of that statute. In a
prosecution for such a violation, it would be immaterial that the defendant
made no attempt to prevent the victim from giving any testimony at all. Had the Legislature intended to more narrowly
define the term "giving testimony" to mean "giving any and all
testimony," it could easily have done so.
As there is
no ambiguity or uncertainty in the broad language of section 136.1(a)(2), and
the Legislature is presumed to have meant what it said, the plain and commonsense
meaning of the words of the statute controls and we need not resort to
legislative history to determine its meaning.
(See People v. Cochran (2002) 28 Cal.4th 396, 400-401; Fitch
v. Select Products Co., supra, 36
Cal.4th at p. 818.)
In support
of his claim that substantial evidence does not support his conviction under
section 136.1(a)(2), Vizcarra relies principally on another statute—section 137
People v. Womack (1995) 40
Cal.App.4th 926 (Womack),
Cal.App.4th 943 (Fernandez), and
595 (Hallock); and he asserts that
"[u]nder California law . . . there is an important
distinction between attempted influencing of content and attempted prevention
of testimony. Section 137 [(he maintains)]
punishes attempts to influence the nature of the testimony a witness gives
while section 136.1[(a)(2)] is limited solely to those instances where a
defendant attempts to prevent or dissuade a witness from giving
no evidence that he was attempting to prevent o[r] dissuade [Zermeno] from
giving any testimony," perhaps he (Vizcarra) could have been prosecuted
under section 137, "but he was not guilty of violating section 136.1[(a)(2)]."
Vizcarra's reliance on
unavailing because (as the Attorney General correctly points out) none of those
cases squarely addresses the issue presented here of whether section
136.1(a)(2) is violated by an attempt to prevent or dissuade a witness or
victim from giving some, but not any and all, testimony at a trial. Womack
involved the issue of whether the defendant's conviction of attempted murder
was inconsistent with his conviction of a violation of section 137. (Womack,
supra, 40 Cal.App.4th at pp. 929,
933-934.) To the extent
136.1(a)(2) only applies to an attempt to prevent a witness or victim from
testifying altogether, we decline to follow that dictum for reasons discussed,
(See Womack, at p. 931
[stating that § 136.1 punishes attempts to "[p]revent[] or dissuad[e]
a witness from testifying altogether"].)
Hallock addressed the issue of
whether the defendant was improperly and prejudicially instructed under former
section 136.1; it did not address the issue presented here. (See Hallock,
supra, 208 Cal.App.3d at pp.
605-607.) Fernandez involved an appeal from a conviction under section 136.1,
subdivision (b)(1),
title="">[5]
and addressed the issue of "whether an attempt to dissuade a witness from
making a 'report . . . to any judge' includes an attempt to
influence a victim's testimony at a preliminary hearing." (Fernandez,
supra, 106 Cal.App.4th at pp. 945,
946-947.)
Vizcarra
suggests the interpretation of section 136.1(a)(2) we have adopted─that
is, as applicable here, it prohibits any person from knowingly and maliciously
attempting to prevent or dissuade a witness or victim from either (1) attending
a trial, or (2) giving some testimony
in the event the witness or victim attends and testifies at the
trial─renders section 137 surplusage. !(AOB 13-14)! Vizcarra also
suggests he could have been prosecuted under section 137, and thus he was
improperly charged under section 136.1(a)(2), stating that "[p]erhaps [he]
could have been prosecuted for his remarks under section 137, but he was not
guilty of violating section 136.1."
!(AOB 16)! The Attorney General rejects Vizcarra's suggestions and asserts
section 136.1(a)(2) "was the correct charge."
Vizcarra's
suggestions are unavailing. First, he
does not identify which of the various subdivisions of section 137 (see fn. 4,
factual circumstances presented in this case.
Subdivision (a) of section 137 punishes "giv[ing] or offer[ing], or
promis[ing] to give, to any witness, person about to be called as a witness, or
person about to give material information pertaining to a crime to a law
enforcement official, any bribe, upon
any understanding or agreement that the testimony of such witness or
information given by such person shall be thereby influenced." (Italics added.) This subdivision clearly has no application
here, as there is no evidence Zermeno was given, offered, or promised any
bribe. Subdivision (b) of that section,
a violation of which is a felony,
punishes (among other things) "attempts by force or threat of force or by the use of fraud to induce any
person to give false testimony or withhold true testimony." (Italics added.) Subdivision (c), a violation of which is a
things) "knowingly induc[ing]
another person to give false testimony or withhold true testimony not
privileged by law." (Italics
added.)
We need not
decide whether Vizcarra properly could have been charged under subdivisions (b)
or (c) of section 137. Assuming for the
purpose of analysis that Vizcarra properly could have been charged under one of
those subdivisions, we reject his suggestion that our interpretation of section
136.1(a)(2) renders section 137 surplusage.
The elements the prosecution must prove to establish a violation of
section 136.1(a)(2) are not identical to the elements it must prove to
establish a violation of section 137 under either subdivision (b) or
subdivision (c). For example, whereas
the prosecution must prove under section 136.1(a)(2) that the defendant acted
"[k]nowingly and maliciously"
(italics added), it must prove under subdivision (b) of section 137 that the
defendant committed the prohibited attempt "by force or threat of force or
by the use of fraud," and under subdivision (c) of that section it must
prove the defendant acted "knowingly" but is not required to prove he
or she acted maliciously or by force, threat of force, or the use of
fraud. Also, the prescribed punishments
are different. As noted, violations of
sections 136.1(a)(2) and 137, subdivision (b) are punishable as felonies;
violations of section 137, subdivision (c), are punishable as
misdemeanors. It appears from an
analysis of the differing essential elements of the foregoing offenses and the
respective prescribed punishments, that the Legislature intended to provide the
People with charging alternatives to further the Legislature's intent to impose
criminal liability for any attempt to intimidate witnesses or victims who may testify,
especially where (as here) such attempted intimidation stems from
Turning to
the evidence in the trial record, we next conclude that substantial evidence in
the form of Vizcarra's three recorded jailhouse telephone calls supports his
conviction under section 136.1(a)(2) by establishing that—through his
intermediary Chicali gang agents Angulo, Lopez, and Flores—he knowingly and
maliciously attempted to prevent or dissuade Zermeno from giving trial
testimony identifying Vizcarra as the person who stabbed him. Specifically, the evidence shows Vizcarra
instructed Angulo during the first telephone call to find "that damn
[Zermeno]" and "tell him that when he goes to court to say, 'No.'" The recording of Vizcarra's second call shows
he told Lopez that Zermeno was "snitching" and he (Lopez) should
"[f]ind that fucker" and "just tell him that if he is going to
go to court, man, to just say that it wasn't us. You know what I mean?" The recording of
the third call shows Vizcarra told Flores, "[I]f [Zermeno] goes to court
he should say, 'No,'" and then added, "That it wasn't us, dog."
That
Vizcarra's foregoing instructions to his gang intermediaries constituted a
knowing and malicious attempt to intimidate Zermeno and prevent or dissuade him
from identifying Vizcarra at trial, is further shown by the testimony of the
prosecution's gang expert, Christian Romualdo, a Brawley Police Department
detective. Detective Romualdo testified
that gang members often attempt to intimidate victims and witnesses in order to
dissuade them from testifying and identifying those gang members so that they
can "get away with" crimes they have committed. Gang members accomplish such intimidation by
"[s]ending messages, threats of violence, profanity [and] threats of
death." When asked how they send
messages, Detective Romualdo stated, "Oftentimes they'll send a fellow
gang member, somebody that they can trust, somebody that they know
will . . . complete the threat." He indicated that this has occurred in almost
every one of the gang cases he has investigated.
Detective
Romualdo, who is fluent in Spanish, indicated that he listened to the
recordings of the three telephone calls Vizcarra made from jail to Angulo,
Lopez, and Flores. On cross-examination,
Detective Romualdo first testified that the purpose of Vizcarra's phone calls
was to attempt to prevent Zermeno from coming to court to testify in this
matter, but he acknowledged Vizcarra did not expressly ask anyone to do that.
Upon further cross-examination, Detective Romualdo opined that Vizcarra was
attempting to dissuade Zermeno from identifying Vizcarra in court as the
stabber.
Based on
the foregoing substantial evidence, we conclude any reasonable jury would find
beyond a reasonable doubt that Vizcarra violated section 136.1(a)(2) by
knowingly and maliciously attempting to prevent or dissuade Zermeno, the victim
in this case, from "giving testimony" at trial within the meaning of
that statute.
II. ABSTRACT
OF JUDGMENT
Vizcarra
next contends the abstract of judgment in this case must be corrected (1) to
reflect that he was convicted of assault with a deadly weapon (count 2) and not
attempted murder (count 1), and (2) to clarify that the gang enhancement
allegation was found true only with respect to count 2.
The
Attorney General agrees, as does this court, that the abstract of judgment
should be corrected in the manner Vizcarra requests. The abstract correctly indicates that
Vizcarra was convicted of count 2, but incorrectly identifies count 2 as
"Attempted Murder." The
abstract must be corrected to identify count 2 as "Assault with a Deadly
Weapon."
Regarding
the five-year gang enhancement, the abstract correctly indicates that Vizcarra
suffered the imposition of that prison term enhancement under "[Section]
186.22(b)(1)." However, the
abstract does not indicate that the gang enhancement allegation was part of
count 2, which charged Vizcarra with assaulting Zermeno with a deadly weapon,
and not part of count 3, which charged him with attempting to dissuade a victim
or witness in violation of section 136.1(a)(2).
In support of Vizcarra's claim that the abstract should be amended to
clarify that the gang enhancement allegation was found true only with respect
to count 2, he asserts that the gang enhancement "has important
implications for purposes of determining if a section 136.1 violation is a
violent felony" for purposes of section 667.5, subdivision (c)(20), which
provides:
"Enhancement of prison terms for new offenses
because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (c) For the
purpose of this section, 'violent felony' shall mean any of the following: [¶](20) Threats to victims or witnesses, as
defined in Section 136.1, which would constitute a felony violation of Section
186.22 of the Penal Code."
We shall
direct the court to amend the abstract of judgment in this case to clarify that
the gang enhancement allegation was found true only with respect to count 2.
III. VIZCARRA'S
SENTENCING ERROR CLAIM
Last,
Vizcarra contends the court erred in both the instant case and the jail
stabbing case by calculating his presentence custody credits with the 15
percent limitation under 2933.1, rather than under section 4019, and, thus, he
"should have been awarded 280 days of work-time credit in each
case." Specifically, he requests
that his sentence be modified "by granting him the proper number of
presentence custody credits" in these two cases, which he asserts is
"840 total days credit comprised of 560 actual days of presentence custody
plus 280 days of conduct credit."
The
Attorney General agrees the custody credits in both this case and the jail
stabbing case should have been calculated under section 4019, and the judgment
Vizcarra requests. However, the Attorney
General asserts this court should deny Vizcarra's request to modify the custody
credit determination in the unrelated jail stabbing case because (among other
things) he has not filed a notice of appeal in that case.
We modify
Vizcarra's sentence in this case to award him a total of 840 days of
presentence custody credit, consisting of 560 actual days of credit plus 280
days of conduct credit. We decline
Vizcarra's request to similarly modify his sentence in the jail stabbing case
as he has not filed a notice of appeal in that case. However, as we are remanding the instant case
to the court with directions to amend the abstract of judgment, we shall leave
to the discretion of the court the decision whether to similarly modify
Vizcarra's sentence in the jail stabbing case on its own motion.
IV.
ATTORNEY GENERAL'S TWO SENTENCING
ERROR CLAIMS
In the
respondent's brief, the Attorney General claims that the court committed two
sentencing errors in the instant case and thereby imposed an unauthorized
sentence. Specifically, the Attorney
General claims that because the court found true the count 2 allegation that
Vizcarra had suffered a robbery conviction that was a serious felony strike
prior (§ 667, subds. (b)-(i)), Vizcarra's total prison term sentence should be
increased by seven years from 15 years to 22 years because the court was
required, but failed, to (1) double to four years under the Three Strikes law
the two-year sentence it imposed for Vizcarra's count 3 conviction of
attempting to dissuade a victim or witness; and (2) impose a consecutive
five-year serious felony conviction enhancement under section 667(a)(1).
A.
Vizcarra Concedes the Trial Court
Erred by Not Doubling the Count 3 Sentence Under the Three Strikes Law Based on
Vizcarra's Prior Serious Felony Strike
1.
The court
found true the count 2 allegation that Vizcarra previously had suffered a
robbery conviction that was a serious felony strike prior (§ 667, subds.
(b)-(i); see § 1192.7, subd. (c)(19)).
However, a similar strike prior allegation was not included in count 3 of the information. As a result of the court's true finding on
the count 2 strike prior allegation, the court doubled to eight years under the
Three Strikes law the four-year principal prison term it imposed for Vizcarra's
count 2 assault-with-a-deadly-weapon conviction in this case. However, because the strike prior allegation
set forth in count 2 was not also alleged in count 3, the court did
it imposed for his count 3 conviction of attempting to dissuade a victim or
witness.
2.
Citing
445 (Morales), Vizcarra correctly
acknowledges in his reply brief that,
even though the prior strike conviction alleged in count 2 was not also alleged
in count 3, the court was required, but erroneously failed, to double under the
Three Strikes law the two-year sentence it imposed for Vizcarra's count 3
conviction based on the court's finding he had suffered the prior strike
conviction. Morales is directly on point and persuasively guides our
determination of the issue presented here.
In Morales, a jury convicted
the defendant of committing three felony counts of annoying or molesting a
child, as charged in the three-count amended information. (Id.
at p. 447.) The jury also found true
count 2 allegations that the defendant had suffered two prior violent felony
convictions of child molestation that were strikes under the Three Strikes law
(§§ 667, subds. (b)-(i), 1170.12).
(Morales, at p. 447.) The trial court struck one of the two prior
strike findings in the interest of justice (§ 1385, subd. (a)) and, in
sentencing the defendant, doubled under the Three Strikes law the prison term
it imposed for the count 2 conviction, as required by sections 667, subdivision
(e)(1) and 1170.12, subdivision (c)(1).
(Morales, at p. 447.) However, because the information did not
allege the prosecution was seeking enhanced recidivist sentencing under the
Three Strikes law as to counts 1 and 3, the trial court did not double the
sentences it imposed as to those counts.
(Id. at pp. 447, 455.) The Court of Appeal reversed the sentence as
to counts 1 and 3, and remanded the matter for resentencing, holding that
"once the jury found defendant had previously been convicted of a violent
felony, the sentence as to all counts
should have been doubled pursuant to sections 667, subdivision (e)(1) and
1170.12, subdivision (c)(1), subject to the trial court's exercise of its
section 1385, subdivision (a) power to strike the prior conviction
finding."
title="">[8] (Morales,
at pp. 447-448, italics added.)
Similarly
here, once the court found Vizcarra previously had been convicted of robbery—a
serious felony strike (see §§ 667, subd. (a)(4) & 1192.7, subd.
(c)(19))—as alleged in count 2, the court was required to double his sentence
as to all counts, including count 3, "pursuant to sections 667,
subdivision (e)(1) and 1170.12, subdivision (c)(1), subject to the trial
court's exercise of its section 1385, subdivision (a) power to strike the prior
conviction finding." (
(f)(1) & 1170.12, subd. (c)(1).)
Thus, we conclude the court erred and rendered an unauthorized sentence
by failing to double under the Three Strikes law the two-year sentence it
imposed for Vizcarra's count 3 conviction.
Accordingly, we reverse the sentence as to count 3 and remand this case
for resentencing subject to the court's exercise of its section 1385,
subdivision (a) power to strike the prior conviction finding.
B.
The Trial Court Erred by Not
Imposing a Mandatory Five-year Enhancement Based on Vizcarra's Prior Serious
Felony Conviction
The
Attorney General also argues that as a result of the court's finding that
Vizcarra previously had been convicted of robbery as alleged in count 2, the
court was required to impose a five-year enhancement under section
667(a)(1). We conclude the court erred and rendered an unauthorized
sentence by failing to impose a five-year enhancement under section 667(a)(1).
As
pertinent here, section 667(a)(1) provides that "any person convicted of a
serious felony who previously has been convicted of a serious felony in this
state . . . shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year enhancement for
each such prior conviction on charges brought and tried
separately." (Italics added.) Under this statute, "when
the defendant is convicted of a current serious felony . . . and has
been previously convicted of a serious felony, the trial court
each such prior conviction that was brought and tried separately. The
terms of the present offense and each section 667(a)[(1)] enhancement must
run consecutively." (People v. Dotson (1997) 16 Cal.4th
547, 553 (Dotson), italics added.) "The trial court has no
discretion and the sentence is mandatory." (People v. Purata (1996)
42 Cal.App.4th 489, 498 (Purata).)
Here, the
requirements for imposition of a mandatory five-year enhancement under section
667(a)(1) are satisfied. Vizcarra was
convicted in the current case of attempting to dissuade a victim or witness
from giving testimony (§ 136.1(a)(2)), which is a serious felony
(§§ 667, subd. (a)(4), 1192.7, subd. (c)(37).) The prosecution alleged he previously had been
convicted of robbery, which is also a serious felony (§§ 667,
subd. (a)(4), 1192.7, subd. (c)(19)), and the court found this
allegation to be true. On the foregoing record, we conclude the court was
required to impose a consecutive five-year prison term based on Vizcarra's
prior serious felony conviction. (§ 667, subd. (a)(1); Dotson,
supra, 16 Cal.4th at p. 553; Purata, supra, 42
Cal.App.4th at p. 498.)
Vizcarra
contends, however, that the trial court was not authorized to impose a section
667(a)(1) enhancement because such an enhancement was not specifically charged
in the information. Specifically, he contends that, as a matter of
federal due process, the court was precluded from imposing a five-year
enhancement under section 667(a)(1) because "no serious felony enhancement
allegation was alleged or proved," and "[t]here was no allegation in
the Information identifiably giving [him] notice that he could be found subject
to a five-year enhancement for a prior serious felony conviction." Citing section 1170.1, subdivision (e),
Vizcarra also contends he has a statutory right "to have each specific
sentencing enhancement pled and proved."
These
contentions are unavailing. Although the
count 2 prior conviction allegation listed only a statutory section and
subdivisions corresponding to the Three Strikes law—specifically, section 667,
subdivisions (b) through (i)—rather than section 667(a)(1), "the
imposition of the five-year enhancement for the prior serious felony conviction
[is] part and parcel of the Three Strikes statutory scheme." (People
v. Dominguez (1995) 38 Cal.App.4th 410, 425.) In addition, "it
is clear that a valid accusatory pleading need not specify by number the
statute under which the accused is being charged" (People v. Thomas (1987)
43 Cal.3d 818, 826); it is sufficient that the pleading identify the factual
basis for imposition of an enhanced penalty (People v. Flynn (1995)
31 Cal.App.4th 1387, 1392-1395; People v. Shoaff (1993) 16 Cal.App.4th
1112, 1117-1118).
Here, the
People alleged that Vizcarra "suffered the following prior conviction(s)
of a serious or violent felony," and then identified one prior conviction
by court case number, Penal Code section violated, date of conviction, county
and state of conviction, and court type.
Thus, the factual basis for a
finding that Vizcarra had a prior serious felony conviction was adequately
charged. (§ 969;
name="_ftnref10" title="">[10] People
v. Flynn, supra, 31 Cal.App.4th
at pp. 1392-1395; People v. Shoaff, supra,
16 Cal.App.4th at pp. 1117-1118; People v. Ashcraft (1956) 138
Cal.App.2d 820, 825.) Although it would be better practice for the People
to allege the specific statutes under which they seek to enhance a defendant's
sentence, we conclude the information here provided sufficient notice of the
potential five-year enhancement by stating the facts supporting it.
A contrary
conclusion is not required by People v. Mancebo (2002) 27 Cal.4th 735,
on which Vizcarra relies. In Mancebo, the information charged the
defendant with various sex crimes against multiple victims and alleged firearm
use and kidnapping to support an enhancement under section 667.61. (Mancebo,
at p. 740.) At the sentencing hearing,
the trial court sua sponte substituted a multiple-victim circumstance for the
firearm-use allegation to support the enhancement under section 667.61 and to
free up the firearm-use allegation for use to support other enhancements, even
though the multiple-victim circumstance had not been alleged by either statute
number or descriptive facts. (
the Court of Appeal reversing the sentence, holding that the trial court erred
when it used an unpleaded multiple-victim circumstance to support an enhanced
sentence under section 667.61. (Mancebo, at pp. 739, 742-745,
754.) "Mancebo thus stands for the limited proposition that a
defendant is entitled to notice of the specific facts that will be used to support an enhanced sentence. Facts alleged and proved only as part of the
substantive crime charged cannot later be used to support a sentencing
enhancement." (People v. Tardy (2003)
112 Cal.App.4th 783, 789, italics added.) Mancebo is therefore not
on point because Vizcarra's sentence, unlike the Mancebo defendant's,
will be enhanced on the basis of facts that were specifically and separately
pleaded and proved for the purpose of enhancement.
We reject
Vizcarra's contention that the separation of powers doctrine precludes the
addition of a five-year enhancement under section 667(a)(1). Specifically, Vizcarra asserts that the
charging function in a criminal prosecution is the sole province of the
executive, and, thus, "[a] rule which allows or requires a Court of Appeal
to impose an uncharged mandatory sentencing enhancement essentially substitutes
the Court of Appeal for the District Attorney in selecting the charges to file
in the case." "This," he
asserts, "is a violation of the separation of powers because the judiciary
does not have the right or responsibility to charge a defendant." This contention fails because the People
─ not this court ─ alleged in the accusatory pleading the specific
facts relating to Vizcarra's prior robbery conviction which, because they were
found true by the trier of fact (here, the court), require the imposition of a
five-year sentence enhancement under section 667(a)(1) as a matter of law.
Vizcarra's
additional claim that by "failing to charge" a five-year enhancement
under section 667(a)(1), the People have "waived" and are estopped
from asserting the right to seek such an enhancement is unavailing. As already discussed, the People properly
alleged the factual basis for imposition of a section 667(a)(1) enhancement,
and the requirements for imposition of a mandatory
five-year enhancement under section 667(a)(1) are satisfied.
In sum,
based on both the adjudicated fact that Vizcarra had sustained a prior serious
felony conviction as specifically alleged in the information, and his current
conviction of a serious felony in this case, the trial court was required to
impose a consecutive five-year term under section 667(a)(1). (People v. Turner (1998) 67
Cal.App.4th 1258, 1269 ["When the truth of the allegation of conviction of
a crime qualifying for a five-year enhancement has been established, it is
mandatory that the enhancement be imposed."], citing Dotson, supra, 16
Cal.4th at pp. 550, 554-560 & Purata,
supra, 42 Cal.App.4th at p.
498.) Failure to impose the five-year
enhancement under these circumstances results in an unauthorized sentence,
which may be addressed and judicially corrected for the first time on appeal. (Dotson,
at p. 554, fn. 6; People v. Turner, supra,
at p. 1269.) It is our duty to correct
an unauthorized sentence on appeal even where, as here, doing so results in a
longer prison sentence. (People v. Serrato (1973) 9 Cal.3d 753,
764, disapproved on other grounds by People v. Fosselman (1983) 33
Cal.3d 572, 583, fn. 1; People v. Solórzano (2007) 153 Cal.App.4th
1026, 1040-1041.) Also, because imposition of the prior serious felony
conviction enhancement is mandatory, we need not remand for resentencing; instead,
we modify the judgment to impose the consecutive five-year enhancement. (Purata,
supra, 42 Cal.App.4th at pp. 498, 499.)
DISPOSITION
In this
case, the total award of 644 days of presentence custody credit (consisting of
560 actual days of credit plus 84 days of conduct credit) is reversed, and the
judgment is modified to award Vizcarra a total of 840 days of presentence
custody credit, consisting of 560 actual days of credit plus 280 days of
conduct credit. As a result of the trial
court's erroneous failure to double under the Three Strikes law the two-year
sentence it imposed for Vizcarra's count 3 conviction (§ 136.1(a)(2)), his
count 3 sentence is reversed, and the matter is remanded to the trial court for
resentencing subject to the court's exercise of its section 1385, subdivision
(a) power to strike the prior conviction finding. The judgment is also modified to impose under
section 667, subdivision (a)(1), a five-year consecutive term for Vizcarra's
serious felony prior conviction. In all
other respects, the judgment is affirmed.
The
superior court is directed to prepare a corrected abstract of judgment
following resentencing (1) to reflect that Vizcarra's count 2 conviction was
for assault with a deadly weapon, not attempted murder; (2) to clarify that the
gang enhancement allegation (§ 186.22, subd. (b)(1)) was found true only
with respect to count 2; (3) to reflect that Vizcarra is awarded a total of 840
days of presentence custody credit, consisting of 560 actual days of credit plus
280 days of conduct credit; (4) to reflect the
imposition under section 667, subdivision (a)(1) of a
consecutive five-year prison term enhancement for Vizcarra's serious felony
prior conviction; and (5) to reflect his count 3 sentence following
resentencing. The superior court is also
directed to forward a certified copy of the corrected abstract of judgment to the Department
of Corrections and Rehabilitation.
NARES,
J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1] As discussed, post,
Vizcarra claims, and the Attorney General agrees, the abstract of judgment
contains two errors. First, it
erroneously indicates that Vizcarra's count 2 conviction was a conviction for
attempted murder, rather than for assault with a deadly weapon. Second, the abstract does not show the gang
enhancement allegation was found true only with respect to count 2.
name="_ftn2" title="">[2] As Vicarra's contentions on appeal are narrow in scope, and
his count 3 insufficiency-of-the-evidence claim rests on an erroneous legal
premise (discussed, post), our
summary of the factual background is very brief.
