P. v. Berg

Filed 6/20/08 P. v. Berg CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed, with directions.

Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Robert Charles Berg of attempted premeditated murder (Pen. Code,  187, subd. (a); 664, subd. (a); all further undesignated section references are to this code), assault with a semiautomatic firearm ( 245, subd. (b)); possession of nunchaku, a deadly weapon ( 12020, subd. (a)(1)); six counts of possession of a firearm by a felon ( 12021, subd. (a)(1)); two counts of possession of an assault weapon ( 12280, subd. (b)); and possession of ammunition by a prohibited person ( 12316, subd. (b)(1)). The jury also found several enhancements to be true, including the allegations that defendant personally discharged a firearm during the attempted murder ( 12022.53, subd. (c)); personally used a firearm in the attempted murder and assault ( 12022.5, subd. (a)); personally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)); and caused great bodily injury ( 12022.7, subd. (a)).

Defendant contends the trial court erred by staying three of the enhancements, rather than striking them. Our Supreme Court has recently rejected an identical argument concerning the two firearm enhancements defendant challenges. (People v. Gonzalez (June 2, 2008, S149898) __ Cal.4th __ [Gonzalez] [2008 WL 2229900 [construing enhancements under  12022.5 and 12022.53].) The Supreme Courts rationale, in addition to other precedent, also supports the trial courts decision to stay, rather than strike, the third enhancement for causing great bodily injury ( 12022.7, subd. (a)). (See, e.g., People v. Lopez (2004) 119 Cal.App.4th 355, 365 (Lopez).)

Defendants other arguments fare better. The Attorney General concedes, and we agree, section 654 required the trial court to stay, rather than impose concurrent sentences on, two felon-in-possession firearm counts because the court imposed consecutive sentences for possession of the same firearms as assault weapons. The Attorney General also concedes, and we agree, the abstract of judgment must be corrected to reflect that the trial court imposed the indeterminate life term under subdivision (d) of section 12022.53, not subdivision (c), and stayed imposition of sentence on the section 12022.7, subdivision (a), enhancement. With these corrections, we affirm the judgment.

I
FACTUAL AND PROCEDURAL BACKGROUND

On September 16, 2006, Duane Kressin and several of his friends passed through Costa Mesa on the 55 freeway as they returned from a birthday celebration. Lee Campos, the groups designated driver, piloted Kressins truck. Someone in the truck spied an Israeli flag depicted on a window in defendants nearby vehicle, and the group began taunting defendant, flipping him off, and making hand signals, including a Nazi salute. Defendant responded by driving erratically, braking and accelerating quickly, and swerving in front of other vehicles. According to witnesses in Kressins truck, defendant pursued them as Campos exited the freeway, stopping abruptly in front of Campos on the off-ramp, forcing him to halt. Defendant exited his vehicle and when Kressin also exited and approached, defendant shot him in the chest with a handgun.

Kressin managed to stumble back to his vehicle and, noting defendants license plate number, Campos drove Kressin to the hospital. Kressin had no measurable blood pressure, heartbeat, or pupillary reaction, and was not breathing, when he arrived at the hospital. He recovered, but suffered a collapsed lung due to the gunshot.

An investigating officer contacted defendant at his Stanton apartment. Defendant had dyed his hair. He admitted owning a vehicle matching the one involved in the incident, but claimed he had loaned it to a friend at that time. He denied involvement in the shooting. Officers located the following in defendants apartment: an empty box for a Sigsauer P-228 semiautomatic pistol, an M-11 assault pistol with a silencer attached, an AK-47 assault rifle with extra magazines, a .45 caliber semiautomatic pistol, and two shotguns. All of the firearms were loaded. The officers also recovered a martial arts weapon known as nunchaku and multiple rounds of ammunition.

Defendant testified Campos pursued him off the freeway, not vice versa. Kressin aggressively kicked open the door to exit his vehicle, rushed and charged towards defendant with glazed eyes, looking crazy, and brandished a knife. Defendant claimed he did not mean to shoot Kressin the gun just went off and alternately that he intended to shoot Kressin in the arm, not the chest. Defendant last saw his Sigsauer pistol in his truck, but lost track of it.

In a bench trial that followed defendants jury trial and conviction as noted above, the trial court found to be true the allegation defendant suffered a prior strike conviction 37 years earlier, and also found the allegation defendant suffered a prior serious felony conviction ( 667, subd. (a)(1)) to be true. The court struck defendants lone prior strike. The court vacated the jurys finding the attempted murder was premeditated, imposed the middle term of seven years for that offense, plus two consecutive terms of eight months each for the assault weapon possession counts, a five-year consecutive term for the prior serious felony, 25 years to life for personally discharging a firearm causing great bodily injury, and concurrent or stayed terms on the remaining counts and enhancements, for a total determinate term of 13 years 4 months, followed by the indeterminate life term. Defendant now appeals.

II
DISCUSSION

Relying on section 12022.53, subdivision (f), and People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte), defendant contends the trial court was required to strike the great bodily injury enhancement the jury found true under section 12022.7 and all firearm enhancements under sections 12022.5 and 12022.53, except the one providing for the longest term of imprisonment. Subdivision (f) of section 12022.53 provides that where multiple enhancements under the section are found true, only the one resulting in the lengthiest enhanced term shall be imposed, and additional firearm and bodily injury enhancements found true under other sections, including sections 12022.5 and 12022.7 shall not be imposed.[1]Bracamonte concluded the shall not be imposed language required the trial court to strike, not just stay, additional enhancements beyond the lengthiest one. (Bracamonte, at p. 712.)

But the Supreme Court recently disapproved Bracamonte, concluding the Legislature intended the phrase [o]nly one additional term of imprisonment . . . shall be imposed . . . to mean only one enhancement may be imposed and then executed, leaving open the possibility for multiple enhancements to be imposed and then stayed. (Gonzalez, supra, __ Cal.4th at p. __, original italics.) The court reasoned thatstaying rather than striking the prohibited firearm enhancements serves the legislative goals of section 12022.53 by making the prohibited enhancements readily available should the section 12022.53 enhancement with the longest term be found invalid on appeal and by making the trial courts intention clear it is staying part of the sentence only because it thinks it must. If, on the other hand, the trial court were to strike or dismiss the prohibited portion of the sentence, it might be misunderstood as exercising its discretionary power under . . . section 1385. [Citation.] (Gonzalez, supra, __ Cal.4th at p. ___, original italics, citing Lopez, supra, 119 Cal.App.4th at p. 365.) Thus, [w]hen the word impose in section 12022.53[, subdivision] (f) is properly understood as shorthand to mean impose and then execute, section 12022.53 allows for the same resolution of the prohibited enhancements under sections 12022.53 and 12022.5, namely, that they must be imposed and then stayed. (Gonzalez, at p. ___.)

The Supreme Court did not specifically address in Gonzalez section 12022.7s enhancement for great bodily injury. In arguing the trial court erred by staying rather than striking the section 12022.7 enhancement, defendant relies on the same shall not be imposed language in section 12022.53, which specifies that when a longer enhancement is available under section 12022.53, [a]n enhancement for great bodily injury as defined in [s]ection 12022.7 . . . shall not be imposed . . . . Because the Supreme Court in Gonzalez construed identical language to mean that enhancements under sections 12022.53 and 12022.5, discussed above, shall not be imposed and executed, but instead must be imposed and stayed, we conclude the same result applies here. (See Walker v. Superior Court (1988) 47 Cal.3d 112, 132 [Identical language appearing in separate provisions dealing with the same subject should be accorded the same interpretation].) Consequently, defendants challenge is without merit.

The Attorney General concedes section 654 required the trial court to stay two of the six felon-in-possession firearm counts against defendant because the court imposed sentence for possession of the same firearms as assault weapons. Section 654 bars double punishment for [a]n act or omission that is punishable in different ways by different provisions of law . . . . The bar extends to multiple offenses constituting one indivisible transaction. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Here, defendants prohibited possession of two assault weapons in his apartment, for which the trial court imposed consecutive sentences of eight months each, was the same basis for two of the six counts against defendant for possessing firearms as an ex-felon. The concurrent sentences the trial court imposed on those two felon-in-possession counts therefore cannot stand. Consequently, we direct the trial court to enter a stay on counts 10 and 11.

The Attorney General also concedes the abstract of judgment must be corrected to reflect the trial courts minute order (In re Candelario (1970) 3 Cal.3d 702, 705; People v. Hartsell (1973) 34 Cal.App.3d 8, 13), as we specify below.

III

DISPOSITION

We modify the judgment by directing the trial court to enter a stay under section 654 on counts 10 and 11 concerning defendants prohibited possession of firearms as an ex-felon. ( 12021, subd. (a)(1).) We also direct the trial court to modify the abstract of judgment to reflect the court stayed the section 12022.7, subdivision (a),

enhancement and imposed the 25 years to life enhancement under subdivision (d) of section 12022.53, rather than subdivision (c). With these corrections, the judgment is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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[1] In full, section 12022.53, subdivision (f), reads: 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. An enhancement involving a firearm specified in [s]ection[s] 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in [s]ection[s] 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).