P. v. Aguirre

Filed 6/24/08 P. v. Aguirre CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed and corrected.

Jeralyn B. Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

Appellant Benny Javier Aguirre appeals from a judgment entered after a jury convicted him of count 1, murder (Pen. Code, 187, subd. (a));[1]count 2, attempted premeditated, deliberate murder ( 664, 187, subd. (a)); and count 3, attempted premeditated, deliberate murder ( 664, 187, subd. (a)). The jury found true the allegation that appellant personally used and discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1), and that the offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C).

Appellant was sentenced as follows: count 125 years to life as to count 1 for first degree murder, plus a consecutive 25 years to life as to the gun allegation pursuant to section 12022.53, subdivisions (d) and (e)(1); count 2life with 15 years minimum before parole eligibility pursuant to section 186.22, subdivision (b)(5) for attempted, premeditated deliberate murder, plus a consecutive 25 years to life as to the gun allegation pursuant to section 12022.53, subdivisions (d) and (e)(1); count 3life with 15 years minimum before parole eligibility pursuant to section 186.22, subdivision (b)(5) for attempted, premeditated deliberate murder plus a consecutive one-third of 20 years which is six years eight months as to the gun allegation pursuant to section 12022.53, subdivisions (c) and (e)(1). As to counts 2 and 3, the trial court imposed but stayed two 10-year sentences as to gang allegation enhancements pursuant to section 186.22, subdivision (b)(1)(C). Appellant received credit for 274 days of actual custody.

CONTENTIONS

Appellant contends that: (1) the trial court erred by imposing two 25-year-to-life sentences for the murder of Juan Trujillo (Trujillo); (2) the prosecutors discretion to charge a defendant with a crime violates due process; (3) the trial court erred in sentencing appellant pursuant to section 186.22, subdivision (b)(5); (4) the trial court erred in imposing and staying a 10-year term pursuant to section 186.22, subdivision (b)(1)(C); and (5) the trial court erred in computing appellants presentence custody credits.

FACTS AND PROCEDURAL HISTORY

On March 4, 2006, appellant, a member of the 12th Street Sharkys gang, challenged a group of young men leaving a party in Pomona. Appellant and a fellow gang member shot at the men as they were getting into their car, killing Trujillo and seriously wounding Johnny Belmontez.

DISCUSSION

I. The trial court properly enhanced appellants murder sentence

Appellant contends that the imposition of a 25-year-to-life sentence enhancement for personal use of a firearm causing great bodily injury pursuant to section 12022.53, subdivision (d) consecutive to his 25-year-to-life sentence for murder violated Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and People v. Seel (2004) 34 Cal.4th 535 (Seel) because the enhancement was necessarily included within the conviction of first degree murder. We disagree.

Our Supreme Court rejected appellants argument in People v.Izaguirre (2007) 42 Cal.4th 126 (Izaguirre). In that case the defendant made the same argument that for purposes of fundamental due process, conduct enhancements are to be treated like offenses including the right to jury trial, under Apprendi. The defendant also urged that conduct enhancements must be treated like necessarily included offenses for purposes of the multiple conviction rule based on the statement in Seel that Apprendi treated the crime together with its sentence enhancement as the functional equivalent of a single greater crime. (Izaguirre, supra, at p. 130.) Our Supreme Court held that firearm-related enhancements did not serve to further characterize defendants intent in committing the drive-by shooting murder and attempted murders, nor effectively place defendant in jeopardy for an offense greater than the murder or the attempted murders with which he was charged. . . . (Id. at p. 134.)

Our Supreme Court stated that [Apprendi] and [Seel] are inapposite to the issue posed herewhether enhancement allegations may be considered in defining necessarily included offenses for purposes of the multiple conviction rule. To the extent the firearm-related enhancements in question stood to increase punishment,Apprendis holding, grounded on the Fifth Amendment right to due process and Sixth Amendment right to jury trial, requires only that they be tried to a jury and found true beyond a reasonable doubt, which they were. Defendants argument overlooks the fact that the aspect of federal double jeopardy protection at issue in Seel is not implicated in this case. As explained in [People v. Sloan (2007) 42 Cal.4th 110] [t]he Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. [Citation.] [Citation, italics added.] The first two categories of protection afforded by the double jeopardy clause . . . are . . . not implicated here . . . . [Citation.] (Izaguirre, supra, 42 Cal.4th at p. 133.)

Under principles of stare decisis, we are bound by the dictates of our Supreme Court and reject appellants argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

II. The prosecutors discretion to charge a defendant with a crime does not violate due process

Appellant claims that the Peoples ability to exercise discretion in charging a defendant with a crime without being required to base a charge on a legitimate tactical or penological consideration violates due process. We disagree.

Manduley v. Superior Court (2002) 27 Cal.4th 537, 552 upheld the constitutionality of an initiative measure that gave the prosecutor discretion to file charges against some juveniles directly in criminal court. [T]he prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. [Citations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from the complex considerations necessary for the effective and efficient administration of law enforcement. [Citations.] The prosecutions authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch. [Citations.] (Manduley v. Superior Court, supra, at p. 552.) And, the prosecutors decision in filing charges is subject to constitutional constraints against invidious discrimination and against vindictive or retaliatory prosecution. (Id. at pp. 570-571.)

Appellant has made no claim of purposeful discrimination and we conclude that his argument is without merit.

III. The abstract of judgment must be corrected

Appellant contends that the trial court erred when it added a consecutive 15-years-to-life sentence under section 186.22, subdivision (b)(5). We conclude that the trial court properly sentenced appellant as to counts 2 and 3, to life with 15 years minimum before parole eligibility, but that the abstract of judgment must be corrected to delete references that appellant received a sentence of 15 years to life for counts 2 and 3 pursuant to section 186.22, subdivision (b)(5).

A true finding on a special allegation of a criminal street gang enhancement under section 186.22, subdivision (b)(1) requires an enhancement by a determinate term of 10 years when the underlying crime is a violent felony within the meaning section 667.5, subdivision (c). ( 186.22, subd. (b)(1)(C).) But, when the underlying felony is punishable by a life term in the state prison, instead of the 10-year enhancement, the defendant shall not be paroled [on the life sentence] until a minimum of 15 calendar years have been served. ( 186.22, subd. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1004.)

The reporters transcript indicates that the trial court sentenced appellant to life with possibility of parole, with 15 years minimum before eligibility on counts 2 and 3. The clerks transcript shows that the trial court imposed sentences on counts 2 and 3 of life with 15 years minimum before parole eligibility pursuant to section 186.22, subdivision (b)(5), and 10 years to life for each count as to the gang allegation pursuant to section 186.22, subdivision (b)(1)(C), stayed pursuant to section 654. While the abstract of judgment at part 2 correctly states that as to counts 2 and 3, the defendant was sentenced to life with 15 years minimum before parole eligibility pursuant to section 186.22, subdivision (b)(5), the abstract of judgment at part 2 also states that appellant received a sentence of 15 years to life for counts 2 and 3 pursuant to section 186.22, subdivision (b)(5).

Accordingly, as the People concede, the abstract of judgment must be corrected to delete references that appellant received a sentence of 15 years to life for counts 2 and 3 pursuant to section 186.22, subdivision (b)(5). (People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment should be corrected to conform to the oral pronouncement of judgment].)

IV. The trial court properly imposed and stayed the 10-year enhancement under section 186.22, subdivision (b)(1)(C)

Appellant contends that the trial court erred by imposing and staying a 10-year term under section 186.22, subdivision (b)(1)(C) because that subdivision does not apply when the defendants base term is a life term. We disagree.

When the underlying felony is punishable by a life term in state prison, in lieu of the 10-year enhancement under section 186.22, subdivision (b)(1)(C), the defendant shall not be paroled on the life sentence until after a minimum of 15 calendar years have been served. (People v. Lopez, supra, 34 Cal.4th at p. 1004.) California Rules of Court, rule 4.447 states: No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit.

Thus, when the statute prohibits striking an enhancement that cannot be imposed, the correct procedure is to impose a sentence on the barred enhancement and stay execution of that sentence. (People v. Lopez (2004)119 Cal.App.4th 355, 364.)

Accordingly, the trial court did not err in imposing and staying the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C).

V. Appellants presentence custody credits shall be corrected

Appellant urges that we correct the abstract of judgment to reflect that he spent 280 days in county jail between the date he was arrested on April 19, 2006 and the date he was sentenced on January 23, 2007.

The People assert that appellant waived the error by failing to object below. (People v. Mendez (1999) 19 Cal.4th 1084, 1100.) But we may address the waived issue of presentence custody credits where it is presented with other issues on appeal. (Ibid.)

We find the custody credit to have been calculated in error and order correction of the abstract of judgment to reflect that appellant should have received 280 days of actual custody credit rather than 274 days.

DISPOSITION

The abstract of judgment is ordered corrected at part 2 to delete references that appellant received a sentence of 15 years to life for counts 2 and 3 pursuant to section 186.22, subdivision (b)(5) and to reflect that appellant received 280 days of actual custody credit rather than 274 days. The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________, J.

DOI TODD

We concur:

____________________, P. J.

BOREN

____________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Penal Code.