P. v. Wilkes
Filed
6/17/13 P. v. Wilkes CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff
and Respondent,
v.
DAVID WILKES,
Defendant
and Appellant.
B239694
(Los Angeles County
Super. Ct. No. LA068807)
APPEAL from a judgment
of the Superior Court of
County. Michael
Kellogg, Judge. Affirmed in part;
reversed in part and remanded.
Benjamin Owens, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, James William Bilderback II and
Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
INTRODUCTION
David Wilkes (appellant) was
convicted by a jury of carjacking
(Pen. Code, § 215, subd. (a), count 1);
with a semiautomatic firearm (§ 245, subd. (b), count 2); possession of a
firearm by a felon (former § 12021, subd. (a)(1), count 3); grand theft of an
automobile with a prior conviction (§ 666.5, count 4); unlawful driving or
taking of a vehicle with a prior conviction (§ 666.5, count 5); and possession
of ammunition by a felon (former § 12316, subd. (b)(1), count 6).
He was sentenced to 46 years, 4 months in prison.
On appeal, appellant raises nine
issues: (1) the evidence was insufficient to prove carjacking; (2) the evidence
was insufficient to prove that he used an automatic handgun; (3) the trial
court prejudicially erred in not instructing the jury on assault with a firearm
as a lesser included offense of assault with a semiautomatic firearm; (4) his
conviction for unlawfully driving or
taking a vehicle must be reversed because it is a lesser included offense
of grand theft of an automobile; (5) the consecutive sentence for grand theft
of an automobile must be stayed pursuant to section 654; (6) the concurrent
sentence for assault with a firearm and the firearm enhancement must be stayed
pursuant to section 654; (7) the abstract of judgment and clerk’s minutes must
be amended to reflect the trial court’s stay of the sentence for possession of
ammunition by a felon pursuant to section 654; (8) the trial court abused its
discretion in finding no mitigating factors in imposing the sentence; and (9)
the abstract of judgment and clerk’s minutes must be amended to reflect
restitution and suspended parole revocation fines in the amount of $200 as
orally pronounced by the trial court.
For the reasons set forth below, we
affirm the judgment in part, reverse the judgment in part, and remand for
resentencing.
FACTUAL BACKGROUND
On August 31, 2011, Jose Aristizabal
was driving a truck owned by his employer, Graffiti Control Systems. On his way to Graffiti Control Systems’ truck
yard, Aristizabal stopped at El Portal Bakery on the corner of Sherman Way and
Coldwater Canyon Avenue in Los Angeles.
He left the truck running with the keys in the ignition while he went
inside the bakery.
While inside, Aristizabal saw two
friends, Carlos Castreyon and Vicente Gomez.
Aristizabal heard an alarm or whistle that resembled the sound his work truck
makes when it is put in reverse. He
looked out of the bakery’s front window and saw a Caucasian male with long
hair, whom Gomez later identified as appellant, inside his truck. Aristizabal said to Castreyon and Gomez,
“Hey, someone is taking – my car is being stolen.†Aristizabal and Castreyon ran out of the
bakery together and watched the truck leave the parking lot. Aristizabal pursued the truck on foot. At the same time, Gomez grabbed Castreyon’s
car keys, got into Castreyon’s car, and pursued appellant and the truck.
As appellant drove out of the parking
lot in Aristizabal’s truck on to Sherman Way, he sideswiped a van. Aristizabal continued to chase after the
truck on foot for about half a block down Sherman Way, yelling for appellant to
stop. Once appellant ran the truck
through a red light at the intersection at Sherman Way and Ethel Avenue,
Aristizabal gave up his chase. At that
moment, he saw a coworker driving by on Sherman Way. Aristizabal asked the coworker for help and
got into the coworker’s car to pursue the truck. As they were driving, Aristizabal called the
police to report the theft.
While Aristizabal pursued appellant
on foot, Gomez followed in Castreyon’s car.
Gomez stopped next to the truck and saw appellant’s face. At the intersection of Wyandotte Street and
Woodman Avenue, appellant stopped the truck and Gomez pulled up behind
him. Gomez got out of Castreyon’s car
and approached the truck on foot. He
approached from the driver’s side of the truck and opened the driver’s side
door. Appellant then drew a gun, which
Gomez later testified was an “automatic†handgun, and pointed it at Gomez’s
chest. Gomez backed away from the gun
and tried to use the truck for cover.
Appellant then fired one shot, which missed Gomez.
Appellant immediately drove off in
Aristizabal’s truck. Terrified, Gomez
remained standing in the street for thirty seconds. He returned to the bakery and called
Aristizabal to tell him what had happened.
Several days after the incident, Gomez was riding in the passenger seat
of Castreyon’s car when he saw appellant walking on Sherman Way. Gomez approached a police car in a nearby
7-Eleven parking lot. He reported to Los
Angeles Police Officers Ricardo Izquierdo and Anthony Ramirez what happened two
days prior, and told them that he had just seen appellant. He described appellant’s appearance and
answered a number of the officers’ questions.
The officers then left the parking lot to look for appellant. Soon after, the officers stopped appellant on
Sherman Way. They called Gomez to have
him meet them in a nearby parking lot to conduct a field identification. Gomez identified appellant as the man who
stole Arisitizabal’s truck and later shot at him.
Gomez told Officer Izquierdo the
location where appellant fired a gun.
Officer Izquierdo and Officer Ramirez then returned to that location to
search for bullet casings and other evidence.
They scanned the area but found no evidence of the shooting or any
reports of gunshots around the time of the shooting.
After appellant was arrested, Officer
Izquierdo and a group of Los Angeles police officers conducted a search of
appellant’s loft located above a mechanic’s garage on Coldwater Canyon
Avenue. Inside the loft, the officers
found a Department of Motor Vehicles printout containing appellant’s
information. Next to the stairs leading
to appellant’s loft, they found a large toolbox containing approximately 1,000
rounds of ammunition. According to
Officer Izquierdo, most of the rounds found in the toolbox could be used in a
semiautomatic firearm. They did not find
a firearm.
Kenny Davison, a witness for the
defense and sublessee of the mechanic’s garage, testified that he had hired
appellant and appellant had been staying in the upstairs loft since the
beginning of August 2011. Davison used
the garage to conduct his business as an automobile and motorcycle repair shop,
but appellant was the only person who lived at that location. Davison subleased the garage and loft from
George Harris, who owned a number of items in the garage, including the toolbox
containing the ammunition. Davison did
not know whether Harris left the toolbox unlocked but he testified that anyone
who entered the garage had access to it.
Davison admitted he had three prior felony convictions.
Appellant was charged with carjacking
in violation of section 215, subdivision (a) (count 1); assault with a
semiautomatic firearm in violation of section 245, subdivision (b) (count 2);
possession of a firearm by a felon in violation of former section 12021,
subdivision (a)(1) (count 3); grand theft of an automobile with a prior
conviction in violation of section 666.5 (count 4); unlawful driving or taking
of a vehicle with a prior conviction of section 666.5 (count 5); and possession
of ammunition by a felon in violation of former section 12316, subdivision
(b)(1) (count 6).
As to count 1, the information
alleged that appellant personally and intentionally used and discharged a
firearm, a handgun, within the meaning of section 12022.53, subdivisions (b)
and (c). As to counts 2, 4, and 5, the
information alleged that in the commission of these offenses, appellant used a
firearm, a handgun, within the meaning of section 12022.5, subdivision
(a).
The information also alleged prior
felony convictions as to counts 1 and 2 pursuant to section 667, subdivision
(a)(1), section 667, subdivisions (b) through (i), section 1170.12,
subdivisions (a) through (d), and section 1203, subdivision (e)(4). It alleged appellant had suffered three prior
felony convictions for which he had served separate prison terms pursuant to
section 667.5, subdivision (a). As to
counts 3 through 6, the information alleged prior felony convictions pursuant
to section 667, subdivisions (b) through (i), section 1170.12, subdivisions (a)
through (d), and section 1203, subdivision (e)(4).
Prior to trial appellant admitted the
prior convictions alleged in counts 3 through 6
The jury found appellant guilty on
all counts and found true the special allegations under former section 12022.5,
subdivision (a) and former section 12022.53, subdivision (c). In a bifurcated trial, the trial court found
true the prior conviction allegations within the meaning of section 667, subdivisions
(a)(1), (b) through (i), section 1170.12, and the prior prison term allegations
pursuant to section 667.5, subdivision (b).
The trial court imposed an aggregate
sentence of 46 years and 4 months in prison.
Appellant received 200 days of presentence custody and conduct
credit.
Carjacking Conviction
Appellant first contends there was
insufficient evidence to support his carjacking conviction under section 215,
subdivision (a). We agree.
“When considering a challenge to the
sufficiency of the evidence to support a conviction, we review the entire
record in the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.â€
(People v. Avila (2009) 46
Cal.4th 680, 701.) In determining
whether there was sufficient evidence to support a jury’s finding, we must
determine whether, after reviewing the entire record in a light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. (Ibid.) We neither reweigh evidence nor reevaluate
the credibility of witnesses. (
27.) “This standard applies whether
direct or circumstantial evidence is involved.â€
(People v. Avila,
Appellant contends the evidence
adduced at trial could not sustain his carjacking conviction. To be convicted of carjacking under section
215, subdivision (a), the accused must take “a motor vehicle in the possession
of another, from his or her person or immediate presence . . . against his or her
will and with the intent to either permanently or temporarily deprive the
person . . . of his or her possession, accomplished by means of force or
fear.†(§ 215, subd. (a).) Appellant asserts his carjacking conviction
must be overturned because Gomez did not have actual or constructive possession
of the truck, and therefore, could not be a proper victim of carjacking.
A conviction for carjacking requires
that the accused take the stolen vehicle from a person who was in some sense in
possession of that vehicle. (
749; see also People v. O’Neil (1997)
56 Cal.App.4th 1126, 1131 [“While a distinct crime from robbery, the elements
and statutory language of carjacking are analogous to those of robbery, and the
‘taking’ language of the carjacking statute is framed in identical language to
the robbery statuteâ€].) Therefore, a
person from whose immediate presence the vehicle was taken is not a proper
carjacking victim unless he was in possession of the vehicle. (People
v. Scott, supra, 45 Cal.4th at p.
749.) However, neither ownership nor
physical possession is required to establish the element of possession for the
purposes of the carjacking statute. (
Constructive possession is sufficient to establish this element. (Id.
at pp. 749-750.)
“[A] person who has the right to
control property has constructive possession of it.†(People
v. Scott, supra, 45 Cal.4th at p.
750.) Generally, courts have required
that the alleged victim of the carjacking or robbery have a “special
relationship†with the owner of the property such that the alleged victim had
authority or responsibility to protect the stolen property on behalf of the
owner. (Ibid.)
Appellant contends that Gomez did not
have constructive possession of Aristizabal’s truck at the time appellant fired
his gun at Gomez. Appellant relies on
two cases, People v. Galoia (1994) 31
Cal.App.4th 595, and Sykes v. Superior
Court (1998) 30 Cal.App.4th 479.
In Galoia, Steadman, the alleged victim, owned a number of video games
located inside a convenience store. (
While Steadman was inside the store collecting money from his games, the
defendant stole a number of items from the store, including a pack of beer and
a pack of cigarettes. (
owner, or any of its employees, Steadman gave chase to the defendant. (Id.
at pp. 597-598.) Outside the store, he
asked the defendant to stop. (
“kick his ass.†(Ibid.) Steadman responded,
“come on†and was then hit from behind by the defendant’s companion. (Ibid.)
There, the court held Steadman was
not a proper victim of robbery. (
The court emphasized the fact that Steadman was neither the owner, nor
an employee, of the store, and that neither the store owner, nor the store
employees, asked Steadman for help. (
employee or agent of the convenience store
. . . [and] no one from the store instructed Steadman to give chase, and
there is no evidence Steadman was motivated by anything other than good
citizenshipâ€].) Rather, Steadman merely
acted as a “Good Samaritan,†which California law does not recognize as creating
a sufficient relationship with the property’s owner for purposes of robbery and
carjacking. (Ibid.; see also People v.
Sykes, supra, 30 Cal.App.4th at
p. 484.)
In Sykes, the court held that a security guard who worked for a
business located across the street from the burglarized store was not a proper
victim for purposes of the robbery statute.
(People v. Sykes,
There, two security guards employed by the business across the street
from the burglarized store witnessed the defendant steal a saxophone from that
store. (Id. at p. 481.) One security
guard witnessed the defendant break into the store. (Ibid.) A second security guard witnessed the
defendant leave the store with the saxophone.
(Ibid.) The second security guard approached the
defendant and told him to “halt.†(
The defendant approached the security guard and the security guard drew
his revolver. (Ibid.) The defendant then
turned and ran. (Ibid.) The security guard
eventually caught the defendant and recovered the saxophone. (Ibid.) During the pursuit and ensuing struggle, the
security guard suffered minor wounds. (
The court held the security guard was
not a proper victim of robbery because he was not an employee of the
burglarized store. (People v. Sykes, supra, 30 Cal.App.4th at p. 484.) Rather, the security guard was merely acting
as a neighbor and good citizen seeking to catch a criminal. (Ibid.) The security guard was neither employed, nor
directed to help, by the storeowner. (
and was never granted implied authority to recover the store’s property. (Id.
at pp. 481-484.) There was no special
relationship between the security guard and the storeowner sufficient to give
the security guard constructive possession over the stolen property. (Id.
at p. 484.)
The People rely on
1457, disapproved on another point in People
v. Rodriguez (1999) 20 Cal.4th 1, 13-14, to support their contention that
Gomez was a proper victim for purposes of the carjacking statute. In Bekele,
a man named Jump and his coworker were driving a front-end loader during the
course of their employment when one of them, Jump, spotted the defendant
burglarizing his truck. (
[t]here is somebody in my truck.†(
The defendant emerged on the side the coworker approached from. (Ibid.) Both men told the defendant to stop. The defendant ran off and the coworker chased
after him. The defendant then pulled a
gun from his jacket, pointed it at the coworker and said, “Don’t.†(Ibid.)
The court in Bekele held the coworker was a proper victim for purposes of the
robbery statute. (People v. Bekele, supra,
33 Cal.App.4th at p. 1462.) The court recognized, “[a] person must have
an ownership interest in the property taken, or some representative capacity with respect to the owner of the
property taken . . . for the taking of the property to constitute a
robbery.†(Ibid.) The court found the
coworker had a representative capacity with respect to Jump’s property because
he had implied authority to help prevent the robbery. (Ibid.) There, Jump saying, “Let’s stop,†and the two
of them subsequently pursuing the defendant at the same time led to the
implication that Jump wanted the coworker to help protect his property. (Ibid.) This call for help gave rise to the
coworker’s implied authority to protect Jump’s property, which created a
sufficient special relationship for purposes of the burglary statute. (Ibid.)
Here, Aristizabal never asked nor
instructed Gomez for help. He merely
exclaimed that his truck was being taken.
Gomez, a friend, but not a coworker, was acting as a good citizen but
did not have a special relationship necessary to establish constructive
possession. We therefore reverse the
carjacking conviction.
Semiautomatic Firearm Conviction
Appellant next contends there was
insufficient evidence to show that he fired a semiautomatic firearm. Section 17140 defines a “semiautomatic
pistol†as a “pistol with an operating mode that uses the energy of the
explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh
cartridge with each single pull of the trigger.†In challenging the jury’s finding that he
used a semiautomatic firearm, appellant makes the following arguments: (1) the
weapon was fired only once; (2) Gomez, the only eyewitness, merely testified
that the gun was not a revolver and that it had a silver handle; (3) Gomez had
never held a gun before, and was only familiar with them through movies; (4)
although there was semiautomatic ammunition found outside appellant’s living
quarters, there was no evidence that appellant actually fired a semiautomatic
pistol; and (5) no casings from the gun were found at the scene of the shooting
or in Aristizabal’s truck. Appellant’s
challenge lacks merit.
In
California, the trier of fact, not the appellate court, weighs evidence and determines
a witness’s credibility. (
Therefore, on appeal, this court cannot reweigh evidence or reevaluate
the credibility of a witness. (
Appellant merely challenges the weight of the evidence—the lack of
casings found at the scene of the shooting and Gomez’s description of the
weapon—and the credibility of the witness—the extent of Gomez’s familiarity
with guns.
The testimony of a lay witness is
sufficient to establish the nature of a firearm. (People
v. Haynes (1984) 160 Cal.App.3d 1122, 1136, fn. 7.) Here, there was sufficient evidence from
which the jury could have found beyond a reasonable doubt that appellant used a
semiautomatic firearm to shoot at Gomez.
(See People v. Avila,
with an “automatic†firearm. He believed
this was so because he could tell the gun was not a revolver. Additionally, the police found hundreds of
semiautomatic rounds of ammunition in an unlocked toolbox directly outside of
appellant’s living quarters. Further,
appellant offered no evidence at trial to contradict the conclusion that he
used a semiautomatic firearm, and his trial counsel did not cross-examine Gomez
about the gun. Therefore, there was
substantial evidence from which the jury could have concluded beyond a
reasonable doubt that appellant used a semiautomatic firearm when he shot at
Gomez. (See People v. Avila, supra,
46 Cal.4th at p. 701.)
the Jury on the Lesser Offense of
Assault with a Firearm Was Not Error
Appellant alleges the trial court
prejudicially erred when it did not instruct the jury on assault with a firearm
as a lesser necessarily included offense of assault with an automatic firearm.
“A trial court has a sua sponte
obligation to instruct the jury on any uncharged offense that is lesser than,
and included in, a greater charged offense, but only if there is substantial
evidence supporting a jury determination that the defendant was in fact guilty
only of the lesser offense.†(
348-349.) “An uncharged offense is
included in a greater charged offense if either
(1) the greater offense, as defined by statute, cannot be committed without
also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the
elements of the lesser offense (the accusatory pleading test).†(Ibid.;
italics in original.) Because there is
no substantial evidence in the record to show the jury would have convicted
appellant of only the lesser firearm charge had it been instructed on it, the
trial court did not err.
As indicated above, there is
substantial evidence to show appellant used a semiautomatic firearm when he
fired at Gomez. Gomez, the only
eyewitness, testified that appellant fired at him with an “automaticâ€
handgun. The prosecution also presented
evidence showing that appellant had easy access to a large amount of
semiautomatic ammunition. Appellant
never contradicted this evidence at trial.
Nor was there any evidence that another type of gun was used or
recovered. (People v. Breverman (1998) 19 Cal.4th 142, 155 [a trial court has
no obligation to instruct on a lesser-included offense when there is no
evidence that the offense was less than that charged].) In light of the lack of sufficient evidence
that the crime was less than that charged, there was no error.
Driving or Taking a Vehicle Must Be
Reversed
Appellant contends, and the People
agree, that the conviction for unlawfully driving or taking a vehicle must be
reversed. “In California, a single act
or course of conduct by a defendant can lead to convictions ‘of
v. Montoya (2004) 33 Cal.4th 1031, 1034.)
However, “a judicially created exception to this rule prohibits multiple
convictions based on necessarily included offenses.†(Ibid.) “If a crime cannot be committed without also
necessarily committing a lesser offense, the latter is a lesser included
offense within the former.†(
1227.)
Under
California law, unlawful driving of a vehicle under Vehicle Code section 10851
is a lesser-included offense of grand theft of an automobile under section
487. (People v. Barrick (1982) 33 Cal.3d 115, 128; People v. Buss (1980) 102 Cal.App.3d 781, 784.) Therefore, it was error to convict appellant
of both offenses. Appellant’s conviction
for unlawful driving of a vehicle in count 5 is reversed.
The court
sentenced appellant as follows:
On count 1,
the carjacking, imposed the high term of nine years, doubled it pursuant to the
strike prior for 18 years, and added a 20-year consecutive term pursuant to
section 12022.53, subdivision (c) for a total of 38 years. Then it added a consecutive term of five
years for the section 667, subdivision (a)(1) prior, for a total of 43
years.
On count 2,
the assault with a firearm, it sentenced appellant to 33 years to run
concurrent to count 1. The 33 years was
computed as follows: a high term of nine years, doubled for the prior felony
strike to 18 years, a high term of 10 years for the section 12022.5,
subdivision (a) enhancement, for a total of 28 years, plus five years pursuant
to the section 667, subdivision (a)(1) prior, for a total of 33 years.
On count 3,
the possession of a firearm by a felon, the court imposed a consecutive term of
one year, four months. This was computed
by taking one-third the mid-term (8 months), doubled for the strike prior to
equal one year, four months.
On count 4,
grand theft, the court imposed a two-year consecutive term, consisting of
one-third of the mid-term (one year), doubled for the strike prior, to equal
two years.
On count 5,
the unlawful taking of a vehicle, the court sentenced appellant to two years
stayed, computed by taking one-third the mid-term (one year), doubled for the
strike prior.
On count 6,
the possession of ammunition, the court imposed a concurrent term of two years.
The total
sentence imposed was 46 years four months.
Appellant
raises several contentions with respect to sentencing.
A. Section 654
Section 654
bars multiple punishment for multiple acts where those acts constitute an
indivisible course of conduct with a single criminal objective and intent. (People
v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Whether there was a single course of conduct is a question of fact for
the trial court and we uphold its findings on appeal when they are supported by
substantial evidence, viewing the evidence in the light most favorable to the
prosecution. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Appellant
presents two separate questions with respect to section 654. First, whether the auto theft was a separate
event from the carjacking, and second, whether an assault with the firearm
could be imposed in addition to the carjacking count. Because we have determined that the
carjacking count should be reversed we need not address these contentions.
B. The Stay of the Sentence for Possession of
Ammunition by a Felon
Pursuant to Section 654
Appellant asserts the trial court
stayed his sentence on count 6 for possession of ammunition by a felon pursuant
to section 654, and therefore, the abstract of judgment and the clerk’s minutes
must be corrected to reflect the stay.
The People contend the record is unclear and does not indicate whether
the sentencing judge intended to stay appellant’s conviction for possession of
ammunition by a felon.
At the sentencing hearing, the trial
court stated: “Count six, the court already deemed as being 654 . . . I said
concurrent. Even though I found it to be
a 654 in the 12022.53(c) or the 12022.5, I sentenced it concurrent in case I am
incorrect on the 654 issue.â€
There was no affirmative evidence of
appellant’s ownership of the multiple rounds of ammunition in the garage
toolbox. As for the ammunition used in
the shooting, there is no justification for the imposition of a separate
sentence. (People v. Lopez (2004) 119 Cal.App.4th 132, 138 [“To allow multiple
punishment for possessing ammunition in a firearm would, in our judgment, parse
the [defendant’s] objectives too finelyâ€].)
Therefore, on remand, the court should stay appellant’s sentence on
count 6 pursuant to section 654.
C.
Imposition of the Upper Term
Appellant next contends the trial
court abused its discretion when it found no mitigating circumstances in
determining his sentence. In determining
the sentence, the trial court had before it the details of the present case,
appellant’s criminal history (three prior convictions), and both parties’
sentencing memoranda. (See
appropriate sentence, the court may consider the record in the case, reports
about the defendant, statements in aggravation or mitigation submitted by the
prosecution or the defendant, and any further evidence introduced at the
sentencing hearing].) After hearing
arguments from the prosecution and the defense, the trial court explained its
sentencing decision. It stated:
I looked at this case and just could not, once again,
understand, based on your record, based on everything else – to me, everything
in your life appears to be either drug driven or close. And taking this truck is a crime of opportunity. Don’t believe that you were hanging out at
the panaderia waiting to get somebody in a bakery truck and that you were
taking the bakery truck to survive based on the load of the bakery truck . . .
. Thinking about how Mr. Gomez, on
behalf of his friend, chased you down through the streets, got up to your car,
took a good look, and then wet his pants upon receiving a shot from a pistol
that you possessed. . . . It was
absolutely scary for him, because one never knows. A bullet going through someone is not as
pretty as the movies or television make it . . . . [L]ooking at this case, I can’t find anything that
would be a factor in mitigation. I
looked. I did think very seriously, long
and hard on count one, because it was an unusual circumstance . . .
and the manner in which it was used, I would have been satisfied that this was
a mid term case. Even if it was just
used to scare someone away, the fact that a weapon was fired and fired in the
direction of Mr. Gomez, it took it from that mid term to a high term. (Italics added.)
The court
also referred to the sentencing memoranda filed by the parties.
Appellant
contends the court erred because it did not consider his mental health history
as a mitigating fact. We also note the
court relied on appellant’s use of a firearm to both aggravate and enhance the
sentence on the primary count, the carjacking.
However, we are reversing the conviction for carjacking and therefore
must remand the matter for resentencing on that count.
D. The Minute Order and Abstract of Judgment
Should Be Modified to Reflect the Fines that the Trial Court Imposed Orally
At the sentencing hearing on February
22, 2012, the judge orally imposed a mandatory restitution fine of $200 pursuant
to section 1202.4, subdivision (b), and a parole revocation fine of $200
pursuant to section 1202.45. However,
the abstract of judgment and sentencing minutes reflect a mandatory restitution
fine of $240, and a parole revocation fine of $240.
Both parties
agree that the minute order and abstract of judgment should be modified to
reflect the fines that the trial court imposed orally.
“An abstract
of judgment is not the judgment of conviction; it does not control if different
from the trial court’s oral judgment and may not add to or modify the judgment
it purports to digest or summarize.†(
181, 185.) “Where there is a discrepancy
between the oral pronouncement of judgment and the minute order or the abstract
of judgment, the oral pronouncement controls.â€
(People v. Zackery (2007) 147
Cal.App.4th 380, 385.) Here, the trial
court’s oral pronouncement of the $200 restitution and parole revocation fines
controls. Therefore, the abstract of
judgment should be amended to reflect a mandatory restitution fine of $200 and
a parole revocation fine of $200.
The
convictions on count 1 and count 5 are reversed and the sentences on those
counts are stricken. The convictions on
the remaining counts are affirmed. We
remand the matter for resentencing in accordance with the directions set forth
in this opinion.
The clerk of
the superior court is directed to prepare an amended abstract of judgment and
forward a copy to the Department of
Corrections and Rehabilitation.
WOODS,
J.
We concur:
PERLUSS, P. J. ZELON,
J.
name="_ftn1" title="">
[1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2] Sections 12021 and 12316 were repealed
as of January 2012.
