Filed 11/7/13 P. v. Arano CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ISAAC ARANO,
Defendant and
Appellant.
F063106
(Super.
Ct. No. VCF243556)
APPEAL from
a judgment of the Superior Court
of
County. Darryl B.
Ferguson, Judge.
Catherine
White, 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, Catherine Chatman and Larenda R.
Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Following
jury trial, defendant Isaac Arano appeals his conviction on the following
grounds: (1) the trial court violated
his constitutional rights to due process and a fair trial when it excluded
prospective jurors without determining whether they understood English
sufficiently to participate in the proceedings; (2) the trial court violated
his due process rights by failing to
instruct on third party culpability; (3) the trial court erroneously instructed
the jury with CALCRIM No. 370, undercutting the state’s burden of proof
beyond a reasonable doubt on the street terrorism charge; (4) the trial court
erred in imposing enhancements pursuant to Penal Code
the enhancements arose from a single assault inflicting great bodily injury;
therefore, the latter three-year enhancement must be stricken; (5) the trial
court violated the provisions of section 654 by imposing a two-year term
pursuant to section 186.22, subdivision (a); and (6) the abstract of judgment
must be modified to accurately reflect the sentence imposed.
BRIEF PROCEDURAL SUMMARY
In a first amended
information filed March 1, 2011, the Tulare County District Attorney
alleged defendant had committed assault with a deadly weapon (§ 245, subd. (a)(1),
count 1), assault by means likely to produce great bodily injury (§ 245, subd.
(a)(1), count 2), and had participated in a criminal street gang (§ 186.22,
subd. (a), count 3). It was further
alleged as to all counts that defendant personally inflicted great bodily
injury within the meaning of section 12022.7, subdivision (a). Multiple gang enhancements were also alleged
as to counts 1 and 2. (§ 186.22, subd.
(b)(1)(A), (B) & (C).) Finally, as
to count 3, it was further alleged that defendant personally used a deadly
weapon within the meaning of section 12022, subdivision (b)(1).
Prior to jury selection on March 29,
2011, the trial court dismissed count 2 as duplicative. Count 1 was amended to read “‘and/or by means
likely to produce great bodily injury.’â€
On
April 6, 2011, the jury found defendant guilty of both counts. It also found true the allegation that
defendant personally inflicted great bodily injury, as well as those pertaining
to the gang enhancements.
Thereafter,
on June 30, 2011, defendant was sentenced to a total of 16 years in state
prison. This appeal followed.
BRIEF FACTUAL SUMMARY
Abel H.
and Cynthia V. were walking along the St. John’s pedestrian pathway in
Visalia on the evening of October 6, 2010.
The couple stopped to listen to music on Cynthia’s iPod, sharing the
headphones. They were approached by a
man on a “longboard†or larger-than-average skateboard. Abel noted the man had large ears and ear
lobes with big earrings; he also had a large nose. In addition to pants, shirt and shoes, he was
wearing a dark beanie cap and had a sports backpack with straps in the front. Abel was wearing pants and a shirt and a
black sweater. The sweater’s hood was
lined with red and had red drawstrings.
When the
man on the skateboard was about 12 to 15 feet away from the couple, he jumped
off the skateboard and struck Abel in the head.
The man had something metal in his hand; it was cupped in his palm and
wrapped around his knuckles. The man
shouted “South Side Kings†and asked Abel if he was a Norteño. Abel replied, “No. Hell, no.â€
The man cursed at Abel, calling him a “bitch†and “fucker.†Cynthia recalled the man calling Abel a “busterâ€
or “chap.†As the couple turned to leave
the area and seek help, the man yelled, “I don’t want to see you on my streets
again.â€
Abel was
bleeding heavily from a gash over his left eye.
Cynthia drove the couple to Abel’s home and Abel called the police.
officer as a light-complected adult, 19 to 20 years of age, five feet nine
inches tall, about 130 to 140 pounds. Abel stated the man was wearing a dark-colored
beanie, a gray sweater, and blue pants, riding a skateboard and wearing a black
backpack. Cynthia described the attacker
as an Hispanic adult, 19 to 20 years old, about six feet tall and 140 pounds, wearing
a dark colored beanie, possibly a T-shirt, and blue jeans. She also stated the man wore a backpack and
had a large skateboard with large wheels.
After
speaking to an officer at his home, Abel was taken to the hospital for
treatment. He received six or seven
stitches for the cut over his eye. Officers
investigating the scene of the incident noted gang graffiti and located blood
drops in the area.
About a
week later, Abel and Cynthia were asked to view some photographs at the police
department. Neither Abel nor Cynthia
identified anyone as the assailant in the first six-pack of photographs each
was shown. When Abel was shown a second
six-pack of photographs, he identified defendant in one photograph, stating to
the officer, “It’s him.†On the back of
the photograph identified, Abel placed his initials and wrote in “might be.†Abel wanted to see another picture to be
certain, a picture wherein the defendant was not smiling. He wanted to see a photograph of defendant
angry, because defendant had been angry at the time of the assault. A few days later, Abel was shown a second
photograph of defendant. He was 100
percent certain that defendant was the man who assaulted him. When Cynthia was shown the second six-pack of
photographs, she identified defendant, placed her initials on the photograph, and
wrote “I think this one looks like him.â€
George
Weaver of the Visalia Police Department’s gang unit testified regarding the Sureño
street gang, and more particularly, the South Side Kings and Ivanhoe Boyz
cliques. Weaver provided testimony
regarding the predicate offenses, as well as defendant’s prior contacts with
law enforcement and admitted association with Sureños. He also testified that defendant’s moniker or
nickname is “Gauges†and that defendant is the only individual known to
associate with the Sureños who wears large earrings.
Defense
Defendant’s
sister Lavina Arano testified he was at home on the evening of October 6, 2010,
at 7:00 p.m. Defendant’s mother
testified similarly.
Scott
Fraser testified as an expert for the defense concerning the reliability of
eyewitness identifications and the various factors that can affect these
identifications.
DISCUSSION
I. The Excused Prospective
Jurors
Defendant
contends the trial court erred in excusing three prospective jurors on the
basis they were not sufficiently proficient in the English language. Further, he contends defense counsel’s failure
to object amounted to ineffective assistance of counsel. The People assert that defendant has
forfeited this claim for purposes of appeal.
Nonetheless, the People maintain the trial court exercised its sound
discretion in excusing the prospective jurors.
A. The Relevant Proceedings
Below
Jury
selection commenced March 29, 2011.
The following colloquy occurred with regard to the three prospective
jurors at issue:
“The Court: Thank you, folks. Have a seat.
[Madame Interpreter]?
“The Interpreter: [A.C.].
“The Court: 26. Ms. [C.],
do you speak English?
“A Prospective Juror: A little bit.
“The Court: Go back to Room 202, ma’am. You’re excused.
“The Interpreter: [M.M.].
“The Court: 52. Mr. [M.],
do you speak English?
“A Prospective Juror: No.
“The Court: Go back to Room 202. You’re excused. Thank you.
“The Interpreter: [D.L.S.].
“The Court: Do you see him on your list, Counsel?
“[Defense Counsel]: Not on mine, your Honor.
“The Court: Do you go by any other names?
“A Prospective Juror: No.
“The Court: [D.L.S.]?
“A Prospective Juror: That’s the way it is.
“The Court: Do you speak English, sir?
“A Prospective Juror: No.
“The Court: Just add him as 71. Go back to Room 202. Tell them you’re excused.â€
B. The Applicable Law
“The
requirement that California jurors understand English is statutory. Code of Civil Procedure section 203 provides:
‘All persons are eligible and qualified
to be prospective trial jurors, except the following: [¶] … [¶] (6) Persons who are not
possessed of sufficient knowledge of the English language ….’ A person with sufficient knowledge of English
is one who is fully able to understand spoken and written English. (People
v. Jones (1972) 25 Cal.App.3d 776, 783.)
[¶] … [¶]
“A
party may challenge an individual juror for cause based on the juror’s lack of
qualification or competency to act as a juror. (Code Civ. Proc., §§ 225, subd. (b)(1)(A),
228, subd. (a).) The challenge must be
made before the jury is sworn. (
competency, first made after trial, is belated and not cognizable on appeal.’ (People
v. Hill (1992) 3 Cal.4th 959, 985, overruled on another point in
Cal.4th 1046, 1069, fn. 13.) This rule
has long been applied to arguments challenging a juror’s qualifications for the
first time on appeal. (See, e.g.,
People v. Plum (1929) 97 Cal.App. 253,
255-256; People v. Duncan (1908) 8
Cal.App. 186, 197-198; People
(People
v. Moreno (2011) 192 Cal.App.4th 692, 705-706 (Moreno).)
Absent a flagrant abuse of discretion, the trial court’s
ruling regarding a juror’s competency, including knowledge of the English
language, will be upheld. (
To prevail
on an ineffective assistance of counsel claim, the appellant must establish two
things: (1) the performance of his or
her counsel fell below an objective standard of reasonableness, and (2) that
prejudice occurred as a result. (
668, 687; People v. Hernandez (2012) 53
Cal.4th 1095, 1105; People v. Bradley
(2012) 208 Cal.App.4th 64, 86–87.)
C. Analysis
By failing
to object in the trial court and before the jury was sworn, defendant has
forfeited this claim for purposes of appeal. (Moreno,
supra, 192 Cal.App.4th at p. 706.) Nevertheless, the trial court did not abuse
its discretion in excusing Prospective Jurors [A.C.], [M.M.], and [D.L.S.].
“… Our
state trials are conducted entirely in English, with translation into English
provided only for those defendants and witnesses who do not speak English. There can be no doubt that, in context of
deciding who is eligible and qualified to be a prospective juror within the
meaning of Code of Civil Procedure section 203(a)(6), the phrase ‘possess sufficient
knowledge of the English language’ means sufficient knowledge of the English
language to understand the legal proceedings and the evidence upon which a
juror would base his or her decision in any given case.†(People
v. Eubanks (2011) 53 Cal.4th 110, 130 (Eubanks).)
Here, when asked whether they could speak English, [M.M.] and
[D.L.S.] unequivocally replied, “No.†[A.C.]
replied, “A little bit.†We think these
responses reveal that the three prospective jurors were not “‘possessed of
sufficient knowledge of the English language’†so as to be able to understand
the proceeding and the evidence upon which those jurors would be basing any
decision. (Eubanks, supra, 53
Cal.4th at p. 130.)
As the
People properly point out, defendant offered expert witness testimony regarding
the science of eyewitness identification and the People offered expert witness
testimony regarding gangs. Both subjects
would require sufficient proficiency in the English language in order to
properly consider the evidence before rendering any verdict. “A juror must be able to fully understand the
testimony, argument and jury instructions, and participate in jury
deliberations.†(Moreno, supra, 192
Cal.App.4th at pp. 705-707; cf. Ganz v.
Justice Court for Arvin-Lamont Judicial Dist. (1969) 273 Cal.App.2d 612, 623
[“This much is certain: we should have
jurors who are fully able to understand spoken and written English on our
juries, if justice is to be achievedâ€].) In this case, two individuals who did not
speak English and one who spoke English only “[a] little bit†could not have
fully understood testimony, argument, and jury instructions, nor could they
have participated in jury deliberations. (See also People
v. Lesara (1988) 206 Cal.App.3d 1304, 1307 [prospective juror properly
excused where “he could not read, speak or understand the English language
except for ‘a little bit’â€].) Based upon
the prospective jurors’ unequivocal and plain responses to the trial court’s
questions, further inquiry by the trial court was not necessary.
Defendant
contends that defense counsel was ineffective in failing to preserve this issue
for appeal. We have already determined
the trial court did not abuse its discretion.
In any event, as the record on appeal does not reveal why defense
counsel chose not to object to the trial court’s dismissal of the three jurors
at issue, this ineffective assistance of counsel claim would be more
appropriately raised in a habeas corpus petition. (People v.
Jones (2003) 29 Cal.4th 1229, 1263.)
II. Claims of Instructional Error
A. Applicable Legal Standards
“‘It is
well established in California that the correctness of jury instructions is to
be determined from the entire charge of the court, not from a consideration of
parts of an instruction or from a particular instruction. [Citations.] “[T]he fact that the necessary elements of a
jury charge are to be found in two instructions rather than in one instruction
does not, in itself, make the charge prejudicial.†[Citation.] “The absence of an essential element in one
instruction may be supplied by another or cured in light of the instructions as
a whole.â€â€™â€ (People v. Bolin (1998) 18 Cal.4th 297, 328.)
“It is fundamental that jurors are presumed to be
intelligent and capable of understanding and applying the court’s instructions.â€
(People
v. Gonzales (2011) 51 Cal.4th 894, 940.) “In reviewing the purportedly erroneous
instructions, ‘we inquire “whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way†that violates the Constitution.’
[Citations.] In conducting this inquiry, we are mindful
that ‘“a single instruction to a jury may not be judged in artificial isolation,
but must be viewed in the context of the overall charge.â€â€™â€ (People
v. Frye (1998) 18 Cal.4th 894, 957, overruled on other grounds in
fn. 22; see People v. Musselwhite (1998)
17 Cal.4th 1216, 1248.)
We consider
the specific language challenged, the instructions as a whole, the jury’s
findings, and the closing arguments of counsel. (People
v. Cain (1995) 10 Cal.4th 1, 35-36; People
v. Eid (2010) 187 Cal.App.4th 859, 883.) We will find error only if it is reasonably
likely the instructions as a whole caused the jury to misunderstand the
applicable law. (People v. Kelly (1992) 1 Cal.4th 495, 525-527; Estelle v. McGuire (1991) 502 U.S. 62, 74.) Instructional error warrants reversal only if
there is a reasonable probability that the defendant would have obtained a more
favorable outcome without the error. (
142, 178.)
B. Third Party Culpability
Because
defendant’s theory at trial was one of mistaken identity, he requested a jury
instruction pertaining to third party culpability. He argues that in addition to the alibi
defense offered, there was evidence of another culprit in the form of the wet
paint marring earlier gang graffiti and certain other inconsistencies. The People contend the trial court properly
denied defendant’s request for such an instruction.
Defendant
requested the jury be instructed as follows:
“The evidence shows that another person may have been
involved in the commission of the crimes charged against the defendant. There may be many reasons why someone who
appears to have been involved might not be a codefendant in this particular
trial. You must not speculate about
whether that person has been or will be prosecuted. Your duty is to decide whether the defendant
on trial here committed the crimes charged.â€
Defense counsel argued there was evidence of another person
present because an officer testified “there was fresh red wet dripping paint
over … blue Sureño†gang graffiti.
Further, counsel argued that because the area of the assault is “a
battle ground†for warring gangs, “it’s at least circumstantial evidence of
somebody else†at the scene of the incident.
However, the court denied the request, stating, “Well, that’s argument, but
it’s not enough for an instruction regarding another perpetrator. I’m not going to give that one.â€
The
instruction defendant requested simply told the jury the People had to prove
beyond a reasonable doubt that he, rather than someone else, was the
perpetrator of the crime. That
instruction was fully covered by the reasonable doubt instructions in CALCRIM No. 220.
trial court instructed the jury with CALCRIM No. 315—Eyewitness
Identification: “The People have the
burden of proving beyond a reasonable doubt that it was the defendant who
committed the crime. If the People have
not met this burden, you must find that the defendant [is] not guilty.†With regard to defendant’s alibi defense, the
jury was instructed with CALCRIM No. 3400 that includes the following
language: “If you have a reasonable
doubt about whether the defendant was present when the crime was committed, you
must find him not guilty.†(See also
CALCRIM Nos. 1401 [proof beyond a reasonable doubt required to prove
allegations]; 3145 [same]; 3160 [same].) Accordingly, the denial of defendant’s
proposed instruction was not error. (E.g.,
People v. Hartsch (2010) 49 Cal.4th
472, 504 (Hartsch) [“[w]e have noted
that similar instructions [on third party liability] add little to the standard
instruction on reasonable doubtâ€]; People
v. Panah (2005) 35 Cal.4th 395, 486 [“trial court is not required to give
pinpoint instructions that merely duplicate other instructionsâ€];
[“instruction that does no more than affirm that the prosecution must prove a
particular element of a charged offense beyond a reasonable doubt merely
duplicates the standard instructions defining the charged offense and
explaining the prosecution’s burden to prove guilt beyond a reasonable doubtâ€].)
Even
assuming error, the omission of the requested instruction could not have
affected the verdict. As the California
Supreme Court has stated, “[i]t is hardly a difficult concept for the jury to
grasp that acquittal is required if there is reasonable doubt as to whether
someone else committed the charged crimes.†(Hartsch,
supra, 49 Cal.4th at p. 504.)
The “reasonable
doubt instructions give defendants ample opportunity to impress upon the jury
that evidence of another party’s liability must be considered.†(Hartsch,
supra, 49 Cal.4th at p. 504.) On appeal, defendant makes much of certain
inconsistencies concerning the size of the skateboard (whether two and a half
to three feet or four feet in length), a backpack (whether black or brown), his
identification as the perpetrator, and the graffiti. With particular regard to the issue of
eyewitness identification, we note defendant’s expert testified regarding a
number of factors affecting such an identification. One of those factors was “distinctive cues.†Scott Fraser defined distinctive cues as “any
feature of the person observed which is unique, odd, strange, unusual, distinguishes
that person from similar others.†Fraser
testified that detection, storage, and retrieval of such distinctive cues as
they relate to eyewitness identification are “the most accurate part of human
perception of others.†Hence, with very
distinctive ears and ear jewelry, it is reasonable to assume that the jury did
not view Abel and Cynthia’s identifications as inconsistent. The jury may have found, in light of these
distinctive cues noted by the victim, that the eyewitness identification was
compelling and strong. All of the
evidence was considered by the jury—including the purported inconsistencies—and
the jury simply rejected defendant’s alibi defense.
In
conclusion, we find the trial court did not err in refusing to instruct the
jury regarding third party culpability.
C. CALCRIM No. 370
Defendant
contends that, as to the substantive gang allegation count, the use of CALCRIM No. 370
was error because his “motive was effectively an element of the state’s case,â€
and, therefore, the instruction “undercut the state’s burden of proof.†The People maintain the trial court properly
instructed the jury with regard to both motive and the intent required for
street terrorism.
Here, the
jury was instructed with CALCRIM No. 370, which provides:
“The
People are not required to prove that the defendant had a motive to commit any
of the crimes charged. In reaching your
verdict you may, however, consider whether the defendant had a motive.
“Having
a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending
to show the defendant is not guilty.â€
The trial court also instructed the jury pursuant to CALCRIM
Nos. 1400 (active participation in a criminal street gang) and 1401 (felony
or misdemeanor committed for benefit of criminal street gang). CALCRIM No. 1401 requires the
prosecution to prove the defendant “committed the crime for the benefit of, at
the direction of, or in association with a criminal street gang; [¶] [a]nd,
the defendant intended to assist
further or promote criminal conduct by gang members.†(Italics added.)
We rejected
the same argument in People v. Fuentes
(2009) 171 Cal.App.4th 1133 (Fuentes).
Fuentes had been charged with a number
of crimes, including active participation in a criminal street gang (§ 186.22,
subd. (a)), as well as the gang enhancement (§ 186.22, subd. (b)(1)). (Fuentes,
supra, at p. 1137.) This court held
“[a]n intent to further criminal gang activity is no
more a ‘motive’ in legal terms than is any other specific intent. We do not call a premeditated murderer’s
intent to kill a ‘motive,’ though his action is motivated by a desire to cause
the victim’s death. Combined, the
instructions here told the jury the prosecution must prove that [the defendant]
intended to further gang activity but need not show what motivated his wish to
do so. This was not ambiguous and there
is no reason to think the jury could not understand it.†(Id.
at pp. 1139-1140.)
Further, we stated that “[a]ny reason for doing something
can rightly be called a motive in common language, including—but not limited
to—reasons that stand behind other reasons. For example, we could say that when A shot B, A
was motivated by a wish to kill B, which in turn was motivated by a desire to
receive an inheritance, which in turn was motivated by a plan to pay off a debt,
which in turn was motivated by a plan to avoid the wrath of a creditor.†(Id.
at p. 1140.) We decline to accept defendant’s
invitation to reconsider our holding in Fuentes.
And despite
defendant’s suggestion that the decision in People
v. Hillhouse (2002) 27 Cal.4th 469 supports his position, it does not. There, the defendant was charged with murder
and several other crimes. The trial
court gave the standard instruction on motive in a murder prosecution. On appeal, the defendant argued the motive
instruction “contradicted the other instructions, because motive
at p. 503.) The Supreme Court disagreed:
“[A]lthough malice and certain intents and purposes are
elements of the crimes, as the court correctly instructed the jury,
appellant’s assumption—are separate and disparate mental states. The words are not synonyms. Their separate definitions were accurate and
appropriate.’ [Citation.] Motive describes the reason a person chooses
to commit a crime. The reason, however, is
different from a required mental state such as intent or malice.†(Id.
at pp. 503-504.)
Moreover, CALCRIM
No. 370 is an accurate statement of the law. (People
v. Howard (2008) 42 Cal.4th 1000, 1024; People
v. Ibarra (2007) 156 Cal.App.4th 1174, 1192-1193.) And we presume jurors are intelligent people
capable of understanding the instructions and applying them to the facts of the
case. (People v. Carey (2007) 41 Cal.4th 109, 130.)
In sum, the
trial court properly instructed the jury with CALCRIM No. 370 and, thus, no
error occurred.
III. The Sentencing Errors
Defendant
contends the trial court committed two errors at sentencing. First, he maintains the trial court erred in
imposing both the section 186.22, subdivision (b), and section 12022.7
enhancements as to count 1. Second, he
argues the trial court erred in imposing a three-year concurrent term on count
3 because it pertains to the same assault that forms the basis of count 1; thus,
the term should have been stayed pursuant to section 654. Respondent concedes both errors.
A. Enhancements Imposed as to
Count 1
Section
1170.1, subdivision (g) provides that
“when two or more enhancements may be imposed for the
infliction of great bodily injury on the same victim in the commission of a
single offense, only the greatest of those enhancements shall be imposed for
that offense.â€
Section 12022.7, subdivision (a) states:
“Any person who personally inflicts great bodily injury
on any person other than an accomplice in the commission of a felony or
attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years.â€
Section 186.22 provides, in pertinent part, that “[a]ny
person who actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of criminal gang activity,
and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang†may be required to serve an additional 10
years if “the felony is a violent felony, as defined in subdivision (c) of
Section 667.5.†(§ 186.22, subds. (a),
(b)(1)(C).) A violent felony is any “felony
in which the defendant inflicts great bodily injury on any person other than an
accomplice which has been charged and proved as provided for in Section 12022.7 ….â€
(§ 667.5, subd. (c)(8).)
Because
both the section 12022.7, subdivision (a) enhancement and the section 186.22, subdivision
(b)(1)(C) enhancement pertain to “the infliction of great bodily injury on the
same victim in the commission of a single offense,†only the greater of the two
enhancements may be imposed. In
501 (Rodriguez), the California
Supreme Court held that when a defendant is convicted of a violent felony
within the meaning of section 667.5, subdivision (c)(8), based on the defendant’s
use of a firearm under section 12022.5, the court cannot impose both the
section 12022.5 enhancement and the section 186.22, subdivision (b)(1)(C) enhancement;
such multiple punishment violates section 1170.1, subdivision (f). (Rodriguez,
supra, 47 Cal.4th at pp.
508-509.)
Applying
the Supreme Court’s reasoning in Rodriguez,
the Court of Appeal in People v. Gonzalez
(2009) 178 Cal.App.4th 1325, 1327-1328 (Gonzalez),
concluded that imposition of both the three-year great bodily injury
enhancement and the 10-year gang enhancement violated section 1170.1, subdivision
(g). That court explained:
“We find the Supreme Court’s reasoning in
applicable to the present case. Similar
to subdivision (f) of section 1170.1, subdivision (g) of the same section
prohibits the imposition of more than one enhancement ‘for the infliction of
great bodily injury on the same victim in the commission of a single offense ….’
Here, appellant’s infliction of great
bodily injury to a single victim subjected him to a three-year enhancement
under section 12022.7, subdivision (a). The
same infliction of great bodily injury to the same victim also turned appellant’s
underlying assault offense into a ‘violent felony’ under section 667.5, which
subjected him to a 10-year enhancement under section 186.22, subdivision (b)(1)(C).
In other words, the trial court imposed
infliction of great bodily injury on the same victim in the commission of a
single offense. Under the reasoning
articulated in Rodriguez, we conclude
the trial court should have imposed only the greatest of those enhancements as
required by section 1170.1, subdivision (g).†(Gonzalez,
supra, 178 Cal.App.4th at pp. 1331-1332.)
We agree with Gonzalez
and apply it here to find the trial court’s imposition of both the three-year
great bodily injury enhancement and the 10-year gang enhancement violated
section 1170.1, subdivision (g). Only
the greatest of those enhancements may stand. The proper remedy is to reverse the trial
court’s sentence and remand the matter to allow the court to restructure the
sentence so as to not violate section 1170.1, subdivision (g). (Rodriguez,
supra, 47 Cal.4th at p. 509;
dispositive, we need not address [defendant’s] additional arguments that
imposition of both sentence enhancements violated section 654.†(Gonzalez,
supra, 178 Cal.App.4th at p. 1332.)
B. Enhancement Imposed as to
Count 3
Section 654,
subdivision (a) provides as follows:
“An act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall
the act or omission be punished under more than one provision. An acquittal or conviction and sentence under
any one bars a prosecution for the same act or omission under any other.â€
The statute “precludes multiple punishment for a single act
or omission, or an indivisible course of conduct.†(People
v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza).)
If a defendant is convicted under two
statutes for one act or indivisible course of conduct, section 654 requires
that the sentence for one conviction be imposed, and the other imposed and then
stayed. (Deloza, supra, at pp. 591-592.) “Section 654 does not allow any multiple
punishment, including either concurrent or consecutive sentences.†(Id.
at p. 592.) The correct procedure is to
impose a sentence for each count and enhancement and then to stay execution of
sentence as necessary to comply with section 654. (People
v. Duff (2010) 50 Cal.4th 787, 795-796.) The statute serves the purpose of preventing
punishment that is not commensurate with a defendant’s criminal liability. (People
v. Dydouangphan (2012) 211 Cal.App.4th 772, 781.)
In
that section 654 does not permit separate punishment for the section 186.22, subdivision
(a) crime of active participation in a criminal
street gang when the only evidence of such participation was the current
charged offenses, even if there were multiple objectives. (Mesa,
supra, at pp. 199-200.) In this case, defendant was charged in count 3
with violating section 186.22, subdivision (a). The only evidence of his active participation,
however, was the evidence associated with the other charged offenses, and particularly
the assault charged in count 1. Thus, the
trial court should have stayed the two-year term it imposed on count 3. (Mesa,
supra, at p. 199.)
IV. The Abstract of Judgment
Defendant
asserts the abstract of judgment must be modified to reflect the trial court’s
oral pronouncement regarding the imposition of sentence on the street terrorism
count, or count 3. The abstract wrongly
references section 245, subdivision (a)(1).
Respondent concedes the error.
“‘It is not open to question that a court has the
inherent power to correct clerical errors in its records so as to make these
records reflect the true facts. [Citations.] The power exists independently of statute and
may be exercised in criminal as well as in civil cases. [Citation.] … The court may correct such errors on its own
motion or upon the application of the parties.’ [Citation.] Courts may correct clerical errors at any time,
and appellate courts … that have properly assumed jurisdiction of cases have
ordered correction of abstracts of judgment that did not accurately reflect the
oral judgments of sentencing courts.†(
185.)
During
sentencing proceedings, the trial court imposed the following:
“In Count 3, the defendant is committed to state prison
for the midterm of two years with an additional—well, consecutive—actually, that’s
double use there, the 12022.7. That will
be concurrent to Count 1 with credits as set forth in Count 1.â€
The
conviction in count 3 pertains to the section 186.22, subdivision (a) offense, or
substantive gang offense. Count 3 did
not allege an assault; rather, that crime was alleged in count 1. However, as noted above, the abstract of
judgment erroneously reflects a conviction pursuant to section 245, subdivision
(a)(1) as to count 3. Therefore, the abstract of judgment must be amended to
reflect that the conviction in count 3 pertains to a violation of section
186.22, subdivision (a).
DISPOSITION
The matter is remanded for
resentencing regarding count 1. The sentence
imposed on count 3 should be stayed and the abstract of judgment should be
corrected to conform with the trial court’s oral pronouncement concerning count
3, to wit: a violation of section 186.22,
subdivision (a). Otherwise, the judgment
is affirmed.
_____________________
Gomes, Acting P.J.
WE CONCUR:
_____________________
Poochigian, J.
_____________________
Detjen, J.
Penal Code unless otherwise indicated.
references to counts 2 and 3 following the dismissal of this count. For our purposes, we will refer to the
remaining counts as they were originally numbered, to wit: counts 1 and 3.
