Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. PA055400 Barbara Scheper, Judge.
Jeralyn 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, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Jorge Almarez was convicted, following a jury trial, of two counts of murder in violation of Penal Code section 187 and one count of willful, deliberate and premeditated attempted murder in violation of sections 664 and 187. The jury found true the allegations that appellant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (d) and used a firearm within the meaning of subdivision (b), and committed the crimes for the benefit of a criminal street gang within the meaning of section 186.22. The jury also found true the allegation that a principal in the crimes personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (d) and (e)(1). The trial court sentenced appellant to two consecutive terms of life without the possibility of parole for the murders plus life for the attempted murder. The court imposed a 25-years-to-life term on each count pursuant to section 12022.53. The court also imposed various enhancement terms pursuant to section 186.22.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court erred in imposing a 25-years-to-life enhancement term to the count 2 attempted murder conviction pursuant to section 12022.53, subdivision (d) and section 12022.53, subdivisions (d) and (e)(1), imposing and staying a 10-year term pursuant to section 186.22, subdivision (b)(1)(C) on all counts, and adding a 15-years-to-life gang enhancement term to his sentence for attempted murder. Appellant also contends that his presentence custody credits should be increased by 120 days. We agree that the trial court erred in imposing an enhancement pursuant to section 12022.53, subdivision (d) for personal firearm use, but see no error in imposing an enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1) for use by a principal in the crime. We order the gang enhancement terms corrected as set forth in more detail in the disposition and the 120 days added to appellant's presentence custody credits. We affirm the judgment of conviction in all other respects.
Facts
1. Count 1 murder and count 2 attempted murder
On the evening of August 22, 2004, Edgar Guzman, his brother Jorge Guzman, Javier Anaya and Rafael Ojeda were standing outside an apartment building in Van Nuys which was next to El Garisol nightclub. Both buildings were in territory claimed by the Latin Times Pacoima gang.
About 10:40 p.m., appellant, a member of the Latin Times gang, stopped his car in front of El Garisol. Appellant and two others got out of the car, walked up to the Guzman group and asked if they were gang members. They denied membership, although Jorge Guzman was in fact a Van Nuys Boys gang member. That gang was a rival of appellant's gang.
Appellant pulled out a.45 caliber handgun and fired several shots at Ojeda's feet. Ojeda was drunk and laughed. Appellant fired bullets into Ojeda's stomach and leg. Appellant also fired nine or ten bullets at Edgar, who fled from the scene and later died. Ojeda survived.
At trial, Los Angeles Police Department Officer Nelson Jatico testified as a gang expert and opined that the shooting was in retaliation for an earlier killing of a Latin Times gang member which was believed to have been committed by a member of the Van Nuys Boys. As such, the shooting benefitted the Latin Times gang.
2. Count 3 murder
On April 3, 2005, appellant shot and killed Alonso Morquecho near El Garisol nightclub. Morquecho was wearing cowboy attire, a common practice of customers of El Garisol. Before shooting Morquecho, appellant asked him where he was from and said a gang name.
At trial, a gang expert testified that narcotics sales occurred at El Garisol and members of the Latin Times gang killed narcotics dealers who sold there but failed to pay a "tax" or "tribute" to the gang. He opined that the murder benefitted the Latin Times gang because it killed a suspected narcotics seller or purchaser who had failed to pay tax to that gang.
Discussion
1. Section 12022.53 enhancements
Appellant contends that the section 12022.53, subdivisions (d) and (e)(1) enhancements alleged in count 2 of the information do not comply with the pleading requirements of subdivision (j) and so must be stricken.
Subdivision (j) provides in pertinent part: "For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading...."
Subdivision (d) applies to "any person who, in the commission of [a specified felony] personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice...."
Subdivision (e)(1) applies to any person who is a principal in the commission of an offense if the person violated section 186.22, subdivision (b), and any principal in the offense committed any act specified in subdivisions (b), (c), or (d) of section 12022.53.
The information in this matter originally alleged that the victim in the count 2 attempted murder charge was Jorge Guzman. On July 30, 2007, "[t]he information was amended by interlineations to correct the victim's name in count 2" to Rafael Ojeda. The name "Jorge Guzman" was crossed out and the name "Rafael Ojeda" was written in for count 2. Jorge Guzman was not alleged as a victim in any other count.
The name Jorge Guzman was not corrected in the section 12022.53 allegations in the information. The section 12022.53 allegation which immediately followed count 2 read: "It is further alleged as to count(s) 1 and 2 that said defendant(s) JORGE ALMAREZ personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death to EDGAR GUZMAN within the meaning of Penal Code section 12022.53(d)." Edgar Guzman was the count 1 murder victim.
The section 12022.53 allegations at the end of the information read: "It is further alleged as to count(s) 1, 2 and 3 that a principal personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death to ALONSO MORQUECHO, EDGAR GUZMAN, JORGE GUZMAN within the meaning of Penal Code section 12022.53(d) and (e)(1). [¶] It is further alleged that a principal personally and intentionally discharged a firearm, a handgun, within the meaning of Penal Code section 12022.53(c) and (e)(1). [¶] It is further alleged that a principal personally used a firearm, a handgun, within the meaning of Penal Code sections 12022.53(b) and (e)."
We agree with appellant that the first allegation, stating that appellant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (d), has the potential for confusion. Although the allegation refers to counts 1 and 2, it mentions only the count 1 victim, Edgar Guzman. It does not mention the name of the original count 2 victim, Jorge Guzman, at all. There are two possible reasons for this inconsistency. The People could have erroneously included the reference to count 2 in the allegation, that is the allegation was not intended to include the crime in count 2. The People could have erroneously omitted the name of the victim, that is the allegation was meant to include the count 2 crime but is missing a detail of that crime.
The second allegation provided fair notice to appellant, however, that he was subject to an enhancement term pursuant to section 12022.53, subdivisions (d) and (e)(1) under the theory that a principal in the crime personally and intentionally discharged a weapon causing great bodily injury. That allegation includes references to both count 2 and the original victim in that count, Jorge Guzman. There can be no doubt that the allegation was meant to apply to the crime in count 2. The court's order amending the information substituted Rafael Ojeda as the victim in count 2. Thus the section 12022.53, subdivisions (d) and (e)(1) allegation must be read in light of that amendment as referring to Rafael Ojeda. The lack of a physical interlineation on the court's copy does not alter the fact of the amendment.
Appellant's reliance on People v. Mancebo (2002) 27 Cal.4th 735 to show error is misplaced. In Mancebo, the information contained allegations of gun use, kidnapping, and tying the victim within the meaning of the One Strike law, but did not contain a multiple victim allegation within the meaning of that law. After trial, the court added a multiple victim allegation, reasoning that since the victim had been convicted of sexual offenses against more than one victim, the multiple victim circumstance had, in effect, been found true by the jury. The Court of Appeal and the Supreme Court found that the One Strike law required that the multiple victim allegation be specifically pled in the accusatory pleading. Absent such pleading, the existence of multiple victims in a case could not trigger the One Strike law.
Here, the section 12022.53 gun use enhancement was alleged in the information, and the information together with the court's pre-trial order of amendment did give fair notice that the victim was Ojeda. Thus, the pleading requirements of section 12022.53, subdivision (j) were satisfied. Further, the verdict form contained the correct name of the victim in the section 12022.53 allegation and that allegation was specifically found true by the jury.
Appellant also relies on People v. Jackson (1985) 37 Cal.3d 826 and People v. Davis (2002) 102 Cal.App.4th 377 to show error. Those cases require that a defendant receive notice of the specific charges against him. As we discuss, supra, the amended information provided notice that the victim was Ojeda and appellant thus received sufficient notice of the charges against him.
2. Section 186.22 gang enhancement – 10 year term
Appellant contends and respondent agrees that the trial court erred in imposing and staying three 10-year terms pursuant to section 186.22, subdivision (b)(1)(C). We agree as well.
All three of appellant's convictions are punishable by life in prison. The 10-year term of section 186.22, subdivision (b)(1)(C) is not applicable to life sentences. (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) In such cases, section 186.22, subdivision (b)(5) applies and imposes a minimum term of 15 years before the defendant may be considered for parole. This is true even when the 15 year minimum will have no practical effect on the defendant's sentence. (Id. at pp. 1008-1009.)
The 10-year gang enhancement terms are erroneous and are stricken. The 15-year minimum parole eligibility terms of the gang enhancement are imposed for all three counts, but are stayed. (§ 12022.53, subd. (e)(2); see People v. Sinclair (2008) 166 Cal.App.4th 848, 854-855.)
3. Section 186.22 enhancement - attempted murder conviction
The enhancement section of the abstract of judgment shows a 15-years-to-life enhancement term pursuant to section 186.22, subdivision (d) for count 2. Appellant contends, and respondent agrees, that the trial court erred in imposing this separate enhancement term on the attempted murder conviction. We agree as well.
As we discuss, supra, section 186.22, subdivision (b)(5) imposes a minimum parole eligibility date for a life sentence. It is not a separate term. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 320-321, 327.) The separate term must be stricken.
4. Registration
Appellant contends, and respondent agrees, the minute order requiring him to register as a convicted narcotics offender is a clerical error which should be corrected. We agree as well.
Appellant was not charged with any narcotics offenses in this case. The reporter's transcript shows that the trial court ordered appellant to register as a gang member. Such registration is required by section 186.30.
5. Presentence custody credits
Appellant contends that the trial court erred in calculating his presentence custody credit and that he is entitled to an additional 120 days. It appears that appellant is correct.
Appellant was arrested on January 3, 2007 and was in custody continuously thereafter. He was sentenced on November 4, 2008 and resentenced on November 25, 2008. Thus, he was in custody for a total of 693 days before his sentencing was complete. The trial court awarded only 573 days of pre-sentence custody credit.
We do not agree with respondent that this issue may not be raised on appeal because section 1231.1 requires a defendant to first seek correction in the trial court, and appellant did not make such an attempt. We have held that the issue may be raised on appeal as long as it is not the sole issue on appeal. (People v. Acosta (1996) 48 Cal.App.4th 411.) We also do not agree with respondent that remand is necessary in this case for resentencing, and that the custody credit issue should be resolved there.
Disposition
The portion of the November 4, 2008 minute order requiring appellant to register as a convicted narcotics offender is stricken, and replaced with a requirement that appellant register as a gang member pursuant to section 186.30. The 10-year terms imposed pursuant to section 186.22 subdivision (b)(1)(C) are ordered stricken on all three counts. The separate 15-years-to-life term added to appellant's life sentence on count 2 is ordered stricken. Pursuant to section 186.22, subdivision (b)(5), appellant is ordered to serve 15 years in prison before he is eligible for parole on all counts, but this provision is ordered stayed pursuant to section 12022.53, subdivision (e)(2). Appellant's presentence custody credits are ordered corrected to total 693 days. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting these changes and to deliver a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: TURNER, P. J., KRIEGLER, J.