Filed 2/10/12 P. v. Huerta CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DIEGO HUERTA,
Defendant and
Appellant.
F061383
(Super.
Ct. No. VCF215605B)
APPEAL
from a judgment of the Superior Court
of
A. M.
Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Daniel Bernstein and Jesse
Witt, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Diego Huerta (appellant) as charged in
counts 1, 2, and 3 of attempted murder done willfully, deliberately and with
premeditation (Pen. Code, §§ 664, 187, subd. (a));
(§ 245, subd. (a)(1)); and in counts 9 and 10
great bodily injury (§ 245, subd. (a)(1)).
The jury found true the allegations that each offense was committed for
the benefit of a criminal street gang
(§ 186.22, subd. (b)) and that appellant was 16 years or older at the time
of the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)). It also found true that appellant personally
inflicted great bodily injury in counts 3 and 6 (§ 12022.7, subd. (a)),
and that he personally used a deadly weapon in count 3 (§ 12022, subd.
(b)(1)). The trial court sentenced
appellant to a determinate term of four years and an indeterminate term of 49
years to life.
Appellant
contends that polygraph evidence was improperly introduced at trial, that the
court erred when it instructed on accomplice testimony, that an officer’s
statement during a videotaped interview was impermissible opinion evidence, and
that the court committed sentencing error. We agree with one of his two claims of
sentencing error, but in all other respects affirm.
FACTS
On January 9, 2009, around 9:45 p.m., Edgar M. and his girlfriend
Nerelin S. were standing outside a movie theater waiting to be picked up by
Edgar’s mother. With them were Edgar’s
brother, Robert M., Nerelin’s sister, and two of Robert’s friends. As they were waiting, a group of four or five
people walked past. Appellant, who was
at the end of the group, called Nerelin “baby girl†and said “fuck your boyfriend
and come with me.†Edgar told appellant
to “chill out†and asked “why are you telling her that?â€
Appellant
then pushed Edgar to the ground and a group of six to eight men and one girl
came toward Nerelin and Edgar. The
group, including appellant, punched and kicked Edgar. The girl wore red shoes, had a knife in her
pocket, and took Robert’s cell phone.
Many others in the attacking group also wore red. Appellant was wearing a black beanie.
Robert
attempted to help his brother Edgar, but two or three people from the group
attacked him, pushed him down, and kicked him.
As a result, he suffered a lump on his forehead.
The
assistant manager of the theater, David, and two theater employees, Chris and
Carlos, went outside and tried to stop the fight. David pulled Edgar from the pile and Edgar
ran away.
The
attacking group then backed the theater employees against the wall. David told the group to leave or he would
call the police. Appellant’s older
brother, Carlos Alberto Huerta, who appeared to be in charge of the attacking
group, had a knife, yelled “Norte†and “Londonâ€
and threatened the employees and their families. Appellant yelled that he was putting a hit on
the theater employees and their families.
David
attempted to get his employees back inside the theater, but someone pulled
Carlos’s jacket over his head and several people held him down. After another theater employee yelled that
someone in the group had a knife, David ran back outside to help Carlos.
As David
was pulling people off of Carlos, appellant stabbed David in the neck, causing
a six-inch wound, severing vocal cords and a vein that stemmed from his carotid
artery. Chris was stabbed in the arm and
suffered nerve damage. He was also
stabbed in the back.
Carlos
Alberto Huerta stabbed Carlos several times in the back, resulting in seven
deep wounds requiring stitches, a punctured lung, a punctured kidney, and two
broken ribs.
After one
of the attackers waved a red bandana in the air and whistled, someone yelled
“all Norte,†and the attackers ran.
During a
police interrogation, Carlos Alberto Huerta admitted that he stabbed a man who
took a swing at him at the movie theater.
At trial, he testified that he did so to protect his brother who was
being attacked.
During
police questioning, appellant at first denied being at the movie theater, but
then said “some vato†asked him why he was trying to “rush†his girl, so he hit
him and then took off running. Appellant
admitted starting the fight, but denied having a knife.
Jerry Vela,
who was with Carlos Alberto Huerta that evening, testified that he saw appellant
on the ground, but did not see him with a knife.
Diego
Hidalgo, a friend of appellant’s who was at the theater that evening, testified
that he, not appellant, stabbed David in the neck. According to Hidalgo, he saw appellant
involved in a fight and went to help him; he found a knife on the ground and
“stuck someone in the neck.†He then
ran, threw the knife away, and hid under a car.
Prior to the current trial, Hidalgo, pursuant to a plea bargain in a
judicial proceeding stemming from this same incident, admitted (1) he assaulted
three people with a deadly weapon and (2) a gang enhancement. Hidalgo understood that double jeopardy
prevented him from being charged more than once for the crimes in this case, but
he denied knowing that he had nothing to lose by testifying. He testified that he initially lied to police
about not being at the scene. He also
testified that he and appellant were friends, and that the people on the
videotape
they were. Hidalgo did not admit to
stabbing David until a few weeks before testifying at trial.
Both Carlos
Alberto Huerta and appellant were gang members, affiliated with the Varrio
Chico London Norteno gang.
DISCUSSION
1. Polygraph Evidence
A recording
of Detective Abel Iriarte’s interrogation of appellant was played during trial
(People’s exhibit 137). The recording
included a discussion in which Iriarte asked appellant several times to take a
polygraph examination. Appellant
repeatedly refused to do so. Appellant
contends that, despite trial counsel’s failure to object, this evidence was so
improperly prejudicial that the judgment must be reversed. We disagree.
Procedural Background
During the
interrogation of appellant by Detective Iriarte, appellant at first denied
being at the movie theater; but eventually appellant said some guy at the
theater asked him why he was trying to “rush†his girl, so he hit the guy and
then took off running. Appellant
admitted starting the fight but denied having a knife. Towards the end of the interview, the
following colloquy occurred between Iriarte and appellant:
“[Q:] Okay.
… I’m gonna ask you a very important question, okay? When we give you a polygraph test, you know
what a polygraph test is?
“[A:] What’s that?
“[Q:] It’s a lie detector test?
“[A:] Uh-huh.
“[Q:] Is it gonna show that you’re telling the
truth?
“[A:] I’m telling you the truth.
“[Q:] Hold on.
When we give you the test is it gonna show—
“[A:] I’m telling you the truth to … I don’t need,
I don’t need no test!
“[Q:] Why not?
“[A:] I don’t need no test ’cause I’m telling you.
“[Q:] But the test is—
“[A:] I don’t know why it started, you know? [W]ell, it started because of that,
dude. [¶] … [¶]
“[Q:] I believe that, that’s the way it started.
“[A:] Alright, you, but you, alright. See it’s ’cause you guys get me mad ’cause
you just—[¶] … [¶]
“[Q:] [W]hy would I get you mad?
“[A:] [C]ause you’re over here, ‘Ah, you need the
polygraph test.’ I don’t, I’m telling
you already.
“[Q:]
Well, I need to make sure that you’re telling me the truth. I don’t believe you.
“[A:] Alright then.
Don’t believe me. Don’t believe
me then.
“[Q:] So, is the polygraph test gonna
(unintelligible) (overtalk)
“[A:] Ah, just take me back to the room .…
“[Q:] Why are you getting upset?
“[A:] ’Cause I … always get mad quick .… [¶] … [¶] … I already told you guys
what happened. [¶] … [¶]
“[Q:] Okay?
Are you telling the truth?
“[A:] I’m telling you. [¶] … [¶] … I fought him for, for a
stupid reason I don’t know why … that stupid reason but I just fought ’em
because he got me mad, you know?â€
The officer came back to the issue of the polygraph shortly
thereafter:
“[Q:] Okay.
So, if you took a polygraph, it would show that—
“[A:] Yeah.
[¶] … [¶] I was there with Junior. [¶] … [¶]
“[Q:] [S]o, there, shouldn’t be no problem with the
polygraph, then?
“[A:] Yeah.
I was there with my brother but see, you guys were over here telling me
and I, shoot, for real, that’s what always gets me mad ’cause everybody … even
ah, like, at Juvy they always tell me, ‘Hey, what about the polygraph
test.’ That’s what always gets me mad
too.
“[Q:] Why?
“[A:] I don’t know
[¶] … [¶]
“[Q:] [T]hat just shows if you’re telling the
truth?
“[A:] I know but I’m just telling you guys already.
“[Q:] If it shows that you’re not telling the truth
then, then what?
“[A:] I don’t know.â€
There was
no objection to the mention of the polygraph test, no request to redact the
recording to remove the polygraph references, and there was no admonition to
the jurors to disregard the references to the polygraph.
Applicable Law and Analysis
Pursuant to
Evidence Code section 351.1, subdivision (a), “the results of a polygraph
examination, the opinion of a polygraph examiner, or any reference to an offer
to take, failure to take, or taking of a polygraph examination, shall not be
admitted into evidence in any criminal proceeding … unless all parties
stipulate to the admission of such results.â€
Since
defense counsel failed to object to admission into evidence of any reference to
appellant’s refusal to take a polygraph test, appellant argues that counsel was
ineffective for failing to object to this clearly inadmissible evidence. (See Strickland
v. Washington (1984) 466 U.S. 668, 688 (Strickland).) To prove ineffective assistance of counsel, a
defendant must show that “counsel’s representation fell below an objective
standard of reasonableness [¶] … under prevailing professional norms†and
“that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.†(Id.
at pp. 688, 694.)
In light of
the categorical exclusion of polygraph-related evidence set forth in Evidence
Code section 351.1, respondent does not argue that the evidence was
admissible. Rather, respondent asserts
that defense counsel had permissible tactical reasons for not objecting and
that appellant has failed to establish that he was prejudiced by counsel’s lack
of objections.
Appellant’s
defense at trial was that, although he was the initial aggressor in the
altercation, he was not guilty of the greater offenses. Respondent argues that the
recording—especially after the officer explains that he wants appellant to
submit to a polygraph exam and appellant becomes upset and wants to leave the
interview room—could be interpreted as supporting appellant’s argument at trial
that appellant acted without premeditation and deliberation on the attempted
murder counts.
We find it
difficult to imagine that counsel had legitimate tactical reasons for failing
to object to any of the references to a polygraph examination. But we need not decide that question since we
conclude that appellant was not prejudiced by counsel’s failure to object. “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, … that
course should be followed.†(
Appellant’s
refusal to submit to a polygraph examination was evidence from which the trier
of fact could determine that appellant had a consciousness of guilt and could
weaken his credibility. But appellant
conceded he was guilty of something, just not the greater charges. And his credibility was already damaged by
the fact that he initially insisted, during police questioning, that he was not
present at the movie theater but then admitted that he started a fight with
“some vato†who suggested he was trying to “rush†his girlfriend.
In light of
this strong evidence of appellant’s guilt, we conclude it is not reasonably
probable that, but for counsel’s failure to object to references of a polygraph
examination, the result of the trial would have been different. (Strickland,
supra, 466 U.S. at p. 694.)
Appellant
also argues that admission of the evidence violated his
Constitution. Appellant’s entire
argument reads as follows: “This state
law evidentiary error violated the federal constitution’s guarantee of
Substantive Due Process.†In support he
cites certain decisions of the United States Supreme Court, none of which we
find applicable. (E.g.,
[immigration procedure did not deny procedural due process to juvenile aliens
detained on suspicion of being deportable]; Foucha
v. Louisiana (1992) 504 U.S. 71, 80 [Louisiana statute violated due process
when it allowed continued confinement of insanity acquitee on basis of
antisocial personality after review found no mental illness].) Because appellant has not supported his claim
of federal constitutional error with adequate argument, we reject this point as
not properly raised. (See
1198, 1224, fn. 8.)
2. Instruction on Accomplice
Testimony
Appellant
contends that the trial court’s instruction on accomplice testimony
prejudicially applied the accomplice corroboration rule to exonerating defense
accomplice witness Diego Hidalgo. We
disagree.
Procedural Background
At trial,
Hidalgo testified that he participated in the events at the movie theater and
that he, not appellant, stabbed David in the neck.
The trial
court instructed the jury in modified language of CALCRIM No. 334 as
follows:
“Before
you may consider the statement or testimony of Diego Hidalgo you must decide
whether he was an accomplice. A person
is an accomplice if he or she is subject to prosecution for the identical crime
charged against the defendant or defendants.
“Someone
is subject to prosecution if he or she personally committed the crime or if he
or she knew of the criminal purpose of the person who committed the crime and
he or she intended to and did in fact aid, facilitate, promote, encourage, or
instigate the commission of the crime or participate in a criminal conspiracy
to commit the crime. A person may be an
accomplice even if he or she is not actually prosecuted for the crime.
“If you
decide that a declarant or witness was not an accomplice, then supporting
evidence is not required and you should evaluate his or her statement or
testimony as you would that of any other witness.
“If you
decide that a declarant or witness was an accomplice, then you may not convict
a defendant of all crimes based on his or her statement or testimony
alone. You may use the statement or
testimony of an accomplice to convict the defendant only if the accomplice’s
statement or testimony is supported by other evidence that you believe, that
the supporting evidence is independent of the accomplice’s statement or
testimony, and that the supporting evidence tends to connect the defendant to
the commission of the crime.
“Supporting
evidence however may be slight. It does
not need to be enough by itself to prove that the defendant is guilty of the
charged crime and it does not need to support every fact mentioned by the
accomplice in the statement or about which the accomplice testified.
“On the
other hand it is not enough if the supporting evidence merely shows that a
crime was committed or the circumstances of its commission. The supporting evidence must tend to connect
the defendant to the commission of the crime.
“… The
evidence needed to support the statement or testimony of one accomplice cannot
be provided by the statement or testimony of another accomplice.
“Any
statement or testimony of an accomplice that tends to incriminate the defendant
should be viewed with caution. You may
not however arbitrarily disregard it.
You should give the statement or testimony the weight that you think it
deserves after examining with care and caution and in the light of all the
other evidence.â€
All jury
instruction conferences were conducted off the record. There is no indication in the record which
party requested the instruction or whether any objection to the instruction was
made. In the only reference to the
proposed instructions on the record, all parties stipulated to the giving of
the instructions, with minor alterations not at issue here.
Applicable Law and Analysis
Appellant
contends that the instruction given was prejudicial because Diego Hidalgo was
an exonerating defense witness, and
the accomplice corroboration rule did not apply to his testimony. We disagree.
“A
conviction cannot be had upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect the defendant with
the commission of the offense .…â€
(§ 1111.) It is now settled
law that properly tailored accomplice instructions may be given when
appropriate regardless whether the prosecution or the defense calls the
accomplice as a witness.
In
1268, the court addressed the trial court’s duty to instruct jurors regarding
accomplice testimony:
“The law on this question is clear. When an accomplice is called as a witness by
the prosecution, the court must instruct the jurors sua sponte to distrust his
testimony. [Citations.] When, by contrast, he is called by the
defendant, the instruction should be given only at the defendant’s
request. [Citations.] Finally, when he is called by both parties,
the instruction should be tailored to relate only to his testimony on behalf of
the prosecution.†(Id. at p. 1314.)
But in
the court modified the People v. Williams
rule and determined that, “henceforth,†whenever an accomplice or a witness who
might be determined by the jury to be an accomplice testifies, the trial court
should sua sponte instruct the jury that the cautionary instruction “refer[s]
only to testimony that tends to incriminate the defendant,†whether the
accomplice was called by the prosecution, defense, or both. (Id.
at p. 569.) It also held that the phrase
“with care and caution†rather than “distrust†better articulated the proper
approach to be taken by the jury to evaluate accomplice evidence. (Ibid.) It therefore concluded that the jury should
be instructed to the following effect whenever an accomplice or a witness, who
might be determined by the jury to be an accomplice, testifies: “To the extent an accomplice gives testimony
that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may
arbitrarily disregard that testimony.
You should give that testimony the weight you think it deserves after
examining it with care and caution and in the light of all the evidence in the
case.†(Ibid.)
Appellant
does not question whether Hidalgo was an accomplice, but contends that the
instruction, as given, erroneously suggested that Hidalgo’s exonerating defense
testimony was subject to the accomplice corroboration rule. Specifically,
the instruction used in this case differed from CALCRIM No. 334 and
deviated from the directive in Guiuan
because the admonition did not restrict itself to “testimony of an accomplice
that tends to incriminate the defendant.â€
At issue is the omission of the italicized words in the first sentence
of the instruction:
“Before you may consider the statement or testimony of
Diego Hidalgo, as evidence against the
defendant, you must decide whether he was an accomplice.†(CALCRIM No. 334.)
Appellant argues that “the instruction never said that the
accomplice corroboration rule did not apply to testimony favorable to the
defense.â€
We
disagree. While the italicized words
were incorrectly omitted, other parts of the instruction limit the accomplice
corroboration rule to testimony that tended to incriminate appellant. For instance, the instruction provided:
“If you decide that a declarant or witness was an
accomplice, then you may not convict a defendant of all crimes based on his or
her statement or testimony alone. You
may use the statement or testimony of an accomplice to convict the defendant
only if the accomplice’s statement or testimony is supported by other evidence
that you believe, that the supporting evidence is independent of the
accomplice’s statement or testimony, and that the supporting evidence tends to
connect the defendant to the commission of the crime.†(See CALCRIM No. 334.)
The instruction also provided:
“Any statement or testimony of an accomplice that tends
to incriminate the defendant should be viewed with caution.†(CALCRIM No. 334.)
“When
reviewing ambiguous instructions, we inquire whether the jury was ‘reasonably
likely’ to have construed them in a manner that violated the defendant’s
rights.†(People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) Here, the instruction reference to evidence
used to “convict†or that “tends to incriminate†is not evidence that is
favorable to the defense, and the jury would not have understood it to be so.
Even if
error occurred, we find the error harmless.
(People v. Flood (1998) 18
Cal.4th 470, 490, 502-504 [instructional error subject to harmless error
review].) “Because the [error] is based
on section 1111, the asserted error is one of state law, subject to the
reasonable probability standard of harmless error under People v. Watson (1956) 46 Cal.2d 818, 836-837.†(People
v. Whisenhunt, supra, 44 Cal.4th
at p. 214.)
The jury
undoubtedly rejected Hidalgo’s testimony that he, not appellant, stabbed David,
because it was unworthy of belief.
Hidalgo had not admitted to stabbing David until just weeks before trial
and well after the issue of his complicity in the events had already been
adjudicated and he could no longer be held liable for any additional
involvement. In addition, David
testified that it was appellant who stabbed him in the neck. Finally, the jury watched the surveillance
video of the events in question.
For these
reasons, we conclude it is not reasonably likely that the instruction on
accomplice liability, as given, contributed to the verdict. Thus, the alleged error is harmless beyond a
reasonable doubt.
We also
reject appellant’s contention that the instruction violated his federal
constitutional guarantee of substantive due process. Federal courts have rejected a due process
challenge to the giving of accomplice instructions where the accomplice
testified as a defense witness. In
683, the Ninth Circuit Court of Appeals held that a properly formulated
accomplice instruction may be given “whether [an accomplice] testifies for the
prosecution or the defense.†(
testimony must be viewed with greater caution than other witnesses did not
violate the defendant’s federal constitutional due process rights. (Id.
at pp. 687-688.) “An accomplice’s
testimony may be suspect, regardless of whether he testifies for the
prosecution or the defense.†(
3. Opinion Evidence
Appellant
next contends that the trial court prejudicially erred in admitting the lay
opinion of Detective Iriarte contained in the aforementioned interrogation of
appellant, during which the detective repeatedly stated his opinion that
appellant was lying. We disagree.
A police
officer’s personal opinion regarding the credibility of an interviewee
generally is inadmissible either as lay testimony or as expert testimony and
should have been redacted upon proper objection. (People
v. Melton (1988) 44 Cal.3d 713, 744; People
v. Smith (1989) 214 Cal.App.3d 904, 915-916; People v. Sergill (1982) 138 Cal.App.3d 34, 40.) While defense counsel failed to object and
never sought to redact specific parts of the officer’s opinion, we find on the
merits that any error was harmless.
Appellant
was certainly lying to the officer during the videotaped interview and
subsequently admitted he had done so.
For instance, when asked about the stabbing incident at the movie
theater, appellant denied hearing about it, denied being at the theater, and
stated he did not know what the officer was talking about. When Detective Iriarte indicated he had seen
the surveillance video and that appellant’s statements were not true, appellant
then acknowledged that he was there and in fact had started the fight.
In other
instances, Detective Iriarte questioned appellant’s statement that he was at
the scene by himself and that his description of where he fled to after the
fight was inconsistent with the video surveillance and other witnesses’
statements. Appellant eventually stated
that he was drunk at the time and that he was not at the scene with one of his
brothers.
Detective
Iriarte was not asked at trial to opine on appellant’s veracity. In addition, an instruction given
provided: “During the interviews the
officers asked questions of the defendants.
Although both the questions and answers are evidence, the information
contained within the officer’s questions are not proven facts. You are the fact finder and you determine
what facts have been shown by the evidence.â€
Given the
overwhelming evidence that appellant had, in fact, lied about his presence at
the theater and his participation in the fight, Detective Iriarte’s expression
of opinion in the taped interview that he did not believe appellant added
little to the evidence the jury heard.
It is not reasonably probable that his opinion during the interviews
that appellant was lying prejudiced appellant or that redaction of his opinion
from the tape would have led to a result more favorable to appellant. (See, e.g., People v. Melton, supra,
44 Cal.3d at p. 745; People v. Smith,
supra, 214 Cal.App.3d at pp.
915-916.) Clearly, the error did not
alter the outcome of the trial and, thus, does not warrant reversal. (Cal. Const., art. VI, § 13; Evid. Code,
§ 353.)
4. Imposition and Stay of Gang
Enhancement
At
sentencing on November 9, 2010, the trial court applied the 15-year
minimum parole eligibility period for the three attempted murder convictions
(counts 1, 2, and 3) under section 186.22, subdivision (b)(5). However, the minute order for that date
states that, in addition to the pronounced oral sentence, the trial court also
imposed and stayed a 10-year enhancement on each of the three counts under
section 186.22, subdivision (b)(1)(C).
that the imposition and stay of the 10-year enhancement must be stricken. We agree.
Citing
1006-1008, appellant contends that he cannot be sentenced on his attempted
murder counts to both the 10-year criminal street gang enhancement in section
186.22, subdivision (b)(1)(C) and the 15-year minimum parole eligibility term
in section 186.22, subdivision (b)(5).
While this argument is correct and would result in an unauthorized
sentence, we agree with respondent (and appellant in his reply brief) that the
error here is clerical. (§ 1207.)
Pronouncement
of judgment must be done orally. (
640.) Here, the 10-year gang enhancement
pursuant to section 186.22, subdivision (b)(1)(C) was not pronounced orally by
the trial court, and the clerk’s minutes do not reflect what occurred at
sentencing. The error was then carried
over to the abstract of judgment as well.
Where there is a discrepancy between the oral pronouncement of judgment
and the minute order or the abstract of judgment, it is presumably the result
of clerical error. (People
v. Mesa (1975) 14 Cal.3d 466, 471; see also People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
“The reason
for requiring a minute entry of the judgment in a criminal case is to furnish a
concise record showing the crime of which the defendant has been convicted and
the punishment imposed, which will protect him against a subsequent prosecution
for the same offense. [Citations.]†(People
v. Blackman (1963) 223 Cal.App.2d 303, 307.) The clerk’s minutes must accurately reflect
what occurred at the hearing, and the clerk cannot supplement the judgment the
court pronounced by adding a provision to the minute order and the abstract of
judgment. (See People v. Hartsell (1973) 34 Cal.App.3d 8, 13-14.)
The 10-year
gang enhancements (§ 186.22, subd. (b)(1)(C)) attached to counts 1, 2, and
3 must be stricken from the November 9, 2010, minutes and the abstract of
judgment as they do not reflect the judgment pronounced by the court. (See People
v. Rowland (1988) 206 Cal.App.3d 119, 123-124 [restitution orders not
pronounced by trial court struck from clerk’s minutes and abstract of
judgment].)
5. Stayed Concurrent Terms
The trial
court found section 654 applied to the aggravated assault convictions in counts
4, 5, and 6 as they were based on the same acts giving rise to the attempted
murder convictions in counts 1, 2, and 3.
Appellant contends that imposing concurrent terms for counts stayed
pursuant to section 654 was unauthorized and should be corrected. We disagree.
Section 12
requires the trial court to determine and pronounce sentence on each count that
results in a conviction. (
415.) Whenever a defendant is convicted
of two or more crimes in the same or different proceedings, the terms of
imprisonment on the second or subsequent judgments run concurrent to the first
unless the court expressly imposes consecutive sentences. (§ 669; In re Patton (1964) 225 Cal.App.2d 83, 87.)
“Section
654 precludes multiple punishment for a single act or omission, or an
indivisible course of conduct.
[Citations.] If, for example, a
defendant suffers two convictions, punishment for one of which is precluded by
section 654, that section requires the sentence for one conviction to be
imposed, and the other imposed and then stayed.†(People
v. Deloza (1998) 18 Cal.4th 585, 591-592.)
“A trial court must impose sentence on every count but stay execution as
necessary to implement section 654.
[¶] … [¶] [T]he correct procedure is to impose sentence on
each count and stay execution of sentence as necessary.†(People
v. Alford (2010) 180 Cal.App.4th 1463, 1472.) A trial court imposes and stays execution of
sentence as necessary to comply with section 654 “that way, if the unstayed
sentence is reversed, a valid sentence remains extant.†(Alford,
at p. 1469.)
Appellant
relies on In re Wright (1967) 65
Cal.2d 650 for the proposition that “if … section 654 applies to a count, the
sentence for that count must be stayed†and “[n]either a concurrent no[r] a
consecutive term may be imposed for that count.†But the error in Wright was imposing a concurrent sentence in lieu of a section 654
stay. (Wright, at pp. 652-655.)
Here, the
trial court followed the correct procedure.
It chose count 3 as the base term.
It then imposed sentences on counts 4 and 5 concurrent to the sentence
imposed in count 3. It also imposed
sentence on count 6, but did not state whether the sentence was to run
concurrent or consecutive to count 3.
pursuant to section 654.
We reject
appellant’s claim of error.
DISPOSITION
The
judgment is affirmed. The matter is
remanded to the superior court to correct the court’s November 9, 2010,
minutes and corresponding abstract of judgment to strike the 10-year
enhancements imposed pursuant to section 186.22, subdivision (b)(1)(C) on
counts 1, 2, and 3 and to forward certified copies of the amended abstract of
judgment to the Department of Corrections
and Rehabilitation.
__________________________
DAWSON, J.
WE CONCUR:
________________________________
GOMES, Acting P.J.
________________________________
KANE, J.
name="_ftn1" title="">[1]All
further statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2]Counts
7 and 8 only involved appellant’s codefendant, Carlos Alberto Huerta.
