Opinion
F084852
06-29-2023
THE PEOPLE, Plaintiff and Respondent, v. EMANUEL AVALOS, Defendant and Appellant.
Michael Cross for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, No. VCF325028B Joseph A. Kalashian, Judge.
Michael Cross for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2017, a jury convicted appellant Emanuel Avalos of 16 felonies, including three counts of conspiracy to commit murder, one count of conspiracy to commit a home invasion robbery, and one count of conspiracy to commit extortion. The jury found true numerous gang and firearm enhancements. Appellant received an aggregate determinate sentence of 10 years eight months, along with a consecutive aggregate indeterminate sentence of 100 years to life.
In 2020, this court issued an unpublished opinion which primarily dealt with sentencing issues. We determined that the trial court had ordered certain sentences to run concurrently but had also improperly stayed those sentences. In addition, the court had failed to articulate reasons in support of certain upper-term sentence enhancements it had imposed. We vacated appellant's sentence and remanded for resentencing. We directed the trial court to exercise its discretion regarding a particular firearm enhancement. We otherwise affirmed appellant's judgment. (People v. Avalos (Dec. 10, 2020, F076301).)
In 2022, the trial court resentenced appellant. He received an aggregate determinate sentence of 21 years eight months, along with a consecutive aggregate indeterminate sentence of 50 years to life.
In the present appeal, appellant raises a single claim with multiple arguments. Without previously raising this issue, he asserts that he was improperly convicted in some of the conspiracies and, as a result, he contends that the trial court acted "beyond" its discretion when sentencing him for those conspiracy convictions. He argues that the court should have reduced his conspiracy convictions and sentenced him commensurate with his level of culpability. He asks that this court reduce his conspiracy convictions to some form of lesser crimes and again remand this matter for resentencing.
We reject appellant's arguments. Appellant may not challenge the validity of the conspiracy convictions, which he failed to raise in his prior appeal. In any event, the trial court neither erred nor abused its sentencing discretion, and we affirm the judgment. However, we have found clerical mistakes in the determinate abstract of judgment, which we will direct the lower court to correct.
BACKGROUND
I. The Red Sol Operation.
This prosecution was the culmination of a multi-agency law enforcement operation, which was known as "Red Sol." It occurred in 2015 and focused on the Norteno criminal street gang in Tulare County. It involved wiretaps of about 34 telephones, and live surveillance of suspects. Law enforcement was able to determine the hierarchy of the Norteno gang in and around Tulare County.
The criminal complaint charged approximately 80 individuals with gang-related crimes. Appellant and his brother, Cervando Avalos, Jr., were part of the original charges and they were tried together but bifurcated from the other defendants.
Cervando is not a party in this present appeal. He was, however, a party in our 2020 opinion.
II. Appellant was a Gang Member who Directed Other Gang Members to Conduct Certain Crimes.
At trial, the prosecution established that appellant and Cervando (individually and collectively) were involved in criminal incidents from August 15, 2015, through and including September 28, 2015. In the prior appeal, appellant did not dispute a majority of his convictions or the jury's true findings.
In 2015, Pedro "Pistol Pete" Sanchez was the acting "regimental commander" of Tulare County for the Norteno street gang. Sanchez would send out orders which were filtered down to various subordinates. The Nuestra Familia, a prison gang, runs the Norteno street gang. Sanchez worked directly under a ranking Nuestra Familia member. The gang divided Tulare County into three sections: north, central and south. Each section had a Norteno gang leader who reported to Sanchez. Each city generally had a Norteno "commander" who was in charge.
The prosecution established that appellant and his brother are Norteno gang members. When law enforcement began its investigation, appellant ran the south section of Tulare County for the Norteno gang. On or about September 13, 2015, however, Cervando took over that position from appellant. They received orders from Sanchez to commit crimes, and they gave orders to other gang members to commit crimes. As south county leaders, appellant and Cervando were responsible for all of the Norteno gang activity within their area. During this investigation, law enforcement intercepted almost daily communications showing appellant's and Cervando's involvement in narcotic sales, assaults, violent crimes and auto theft.
On cross-examination, the prosecution's gang expert admitted that he could not state that all orders came from Sanchez, but he believed Sanchez knew about all of the orders that appellant and Cervando gave to other gang members because they were "reported back up" to Sanchez.
At trial, appellant and Cervando repeatedly claimed that they were not gang members. Instead, they asserted that they had only associated with Norteno gang members. Appellant disputed that he had any authority or power in the gang. He stated that he was forced to work as Sanchez's messenger. He claimed that he made drug deliveries and collected money for Sanchez. He testified that Sanchez made him take possession of a gang cell phone that was used to conduct gang business. According to appellant, whenever he acted, he was simply following Sanchez's orders, passing on Sanchez's wishes, and he feared being murdered if he refused to do what Sanchez wanted. Appellant claimed that he was afraid of Sanchez because he knew Sanchez had caused people to be killed. Appellant believed he would be killed if he refused to act for Sanchez. He also feared for his family, including his two minor sons.
During this investigation, appellant and Cervando lived together. At one point, Sanchez moved into appellant's and Cervando's residence. Because Sanchez was with them, he may not have communicated all orders through the telephone. According to appellant, Sanchez moved in against their will but they felt that they could not refuse him. Cervando testified that Sanchez "made his way into our home" and he "was living there" not by their choice.
At trial, the prosecution's gang expert explained that Sanchez was believed to have ordered three murders in Tulare County, but witnesses were afraid to come forward. This wiretap operation was started in an effort to obtain more evidence against Sanchez.
To resolve a vandalism charge (§ 594, subd. (a)) when he was 18 years old, appellant volunteered for service in the United States Army. His service began in August 2008. In 2010 he was deployed to Iraq for one year. He told the jury that he felt extreme stress during his time in Iraq, and he came under fire. He was discharged from active duty in January 2012. Appellant claimed that, after his combat time in Iraq, he felt "very anxious, very stressed out." He thought someone was "after" him and he could not do anything about it.
Cervando testified that he took control of the gang's cell phone from appellant because he knew appellant was in trouble. According to Cervando, Sanchez was upset with appellant's performance. Cervando said he had wanted to protect appellant.Cervando denied that he was a high-ranking Norteno gang member or that he had any authority. He denied being able to issue fines on other gang members. Cervando claimed that he feared Sanchez, and Cervando also feared for the safety of his minor daughter. He knew that Sanchez had caused people to be killed. In addition, Cervando told the jury that he had provided information to law enforcement regarding a particular murder that Sanchez had caused, and Cervando was in fear that Sanchez might learn that he had done so. Cervando felt like he could not say "no" when Sanchez told him to do things. He testified that Sanchez could have had him killed. Cervando generally denied having any criminal intent to commit the charged crimes. Instead, he was just keeping Sanchez aware of events and/or following Sanchez's instructions and orders.
During closing argument, the prosecutor noted that Cervando was in charge only for about two weeks before law enforcement concluded its investigation on October 1, 2015, and arrested appellant and Cervando. According to the prosecutor, appellant had to step down as the south county gang leader because all of his operations were a failure.
With CALCRIM No. 3402, the jurors were instructed, in part, that appellant and Cervando were “not guilty of all crimes charged if they acted under duress.” Appellant and Cervando were represented by the same defense counsel at trial. During closing argument, their counsel asserted, in part, that they had acted under duress when all of the charges occurred. According to counsel, appellant and Cervando were reasonably in fear of Sanchez, and their counsel asked the jury to find them not guilty of all charges.
III. Appellant's Convictions and Sentences.
At the 2022 resentencing, appellant received an aggregate determinate sentence of 21 years eight months, along with a consecutive aggregate indeterminate sentence of 50 years to life. The following is a breakdown of his 16 convictions and their respective sentences.
As we explain later in this opinion, the determinate abstract of judgment contains clerical mistakes. It erroneously states that appellant's total determinate sentence is 22 years eight months. In addition, the abstract incorrectly lists a one-year gang enhancement in count 127, which the trial court never imposed. We will direct the lower court to amend these clerical mistakes and issue an amended abstract of judgment.
1. Count 17
Appellant was convicted of conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)). The jury found true a gang enhancement (§ 186.22, subd. (b)(5)). Appellant received a consecutive indeterminate term of 25 years to life, with a 15-year minimum parole eligibility.
2. Count 18
Appellant was convicted of gang conspiracy to commit murder (§§ 182.5, 187, subd. (a)). This sentence was stayed.
3. Count 19
Appellant was convicted of conspiracy to commit a home invasion robbery in concert with others (§§ 182, subd. (a)(1), 212.5, subd. (a), 213, subd. (a)(1)(A)). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)) and two firearm enhancements (§§ 12022.4, subd. (a), 12022, subd. (a)(1)). Appellant received the middle term of six years, plus an aggregate consecutive enhancement of eight years. This was deemed the principal determinate term.
4. Count 20
Appellant was convicted of gang conspiracy to commit a home invasion robbery in concert with others (§§ 182.5, 212.5, subd. (a), 213, subd. (a)(1)(A)). This sentence was stayed.
5. Count 29
Appellant was convicted of conspiracy to purchase or receive a stolen vehicle (§§ 182, subd. (a)(1), 496d, subd. (a)). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)). Appellant received a subordinate consecutive term of eight months, with a consecutive one year for the gang enhancement.
6. Count 35
Appellant was convicted of gang conspiracy to purchase or receive a stolen vehicle (§§ 182.5, 496d, subd. (a)). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)). This sentence was stayed.
7. Count 43
Appellant was convicted of conspiracy to commit extortion (§§ 182, subd. (a)(1), 520). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)). Appellant received a subordinate consecutive term of one year, with a consecutive one year for the gang enhancement.
8. Count 65
Appellant was convicted of conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)). The jury found true a gang enhancement (§ 186.22, subd. (b)(5)). Appellant received a consecutive indeterminate term of 25 years to life, with a 15-year minimum parole eligibility.
9. Count 67
Appellant was convicted of conspiracy to purchase or receive a stolen vehicle (§§ 182, subd. (a)(1), 496d, subd. (a)). Appellant received a subordinate consecutive term of eight months, with a consecutive one year for the gang enhancement.
10. Count 69
Appellant was convicted of gang conspiracy to commit murder (§§ 182.5, 187, subd. (a)). This sentence was stayed.
11. Count 71
Appellant was convicted of conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)). The jury found true a gang enhancement (§ 186.22, subd. (b)(5)). Appellant received a concurrent indeterminate term of 25 years to life, with a 15-year minimum parole eligibility.
12. Count 72
Appellant was convicted of gang conspiracy to commit murder (§§ 182.5, 187, subd. (a)). This sentence was stayed.
13. Count 73
Appellant was convicted of attempted murder (§§ 664, subd. (a), 187, subd. (a)). The jury found true that this attempt had been premeditated and deliberate. The jury found true a gang enhancement (§ 186.22, subd. (b)(1)) and a firearm enhancement (§ 12022.53, subds. (c) &(e)(1)). This sentence was stayed.
14. Count 126
Appellant was convicted of possession for sale of a controlled substance (methamphetamine) (Health &Saf. Code, § 11378). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)). Appellant received a subordinate consecutive term of eight months, with a consecutive one year for the gang enhancement.
15. Count 127
Appellant was convicted of possession of an assault weapon (§ 30605, subd. (a)). The jury did not find true a gang enhancement (§ 186.22, subd. (b)(1)). Appellant received a subordinate consecutive term of eight months. The abstract of judgment erroneously shows a one-year gang enhancement was imposed in this count. As we explain later in this opinion, we will direct the trial court to issue an amended abstract of judgment correcting this clerical error.
16. Count 163
Appellant was convicted of attempted home invasion robbery in concert with others (§§ 664, subd. (a), 212.5, subd. (a), 213, subd. (a)(1)(A)). The jury found true a gang enhancement (§ 186.22, subd. (b)(1)). This sentence was stayed.
DISCUSSION
I. The Trial Court Did Not Err or Abuse Its Sentencing Discretion.
Appellant contends that the trial court exceeded its authority in 2022 when it imposed the indeterminate sentences. To establish error, appellant asserts he was not properly convicted regarding the following five counts of conspiracy:
1. Count 17 regarding conspiracy to commit murder;
2. Count 19 regarding conspiracy to commit a home invasion robbery;
3. Count 43 regarding conspiracy to commit extortion;
4. Count 65 regarding conspiracy to commit murder; and
5. Count 71 regarding conspiracy to commit murder.
According to appellant, the evidentiary record fails to show that he ever agreed to conspire to commit the underlying crimes in each of the above counts. He also contends that he never intended to commit any of these underlying crimes. Finally, he maintains that his jury was not properly instructed on the intent required to establish each of these conspiracies. Because he claims he was improperly convicted in the conspiracy counts, appellant maintains that the trial court acted "beyond" its discretion when imposing indeterminate sentences against him when he was resentenced in 2022. Appellant asserts his sentence violates the Eighth and Fourteenth Amendments of the United States Constitution. He asks this court to reduce his conspiracy convictions to lesser crimes and remand this matter for a resentencing that is proportional to his culpability.
All future references to amendments are to the United States Constitution unless otherwise noted.
Appellant admits that he did not challenge the validity of these conspiracy convictions in the prior appeal. However, he claims he received ineffective assistance of counsel because these issues were not raised in the prior appeal.
Appellant's trial counsel represented him at the 2022 resentencing, and that same counsel represents him in the current appeal. However, appellant had other appellate counsel representing him during his first appeal.
We reject appellant's various arguments. As an initial matter, appellant may not challenge the validity of the disputed convictions in this second appeal. In any event, it is improper to reduce his conspiracy convictions and we conclude that the sentence imposed against him does not violate his constitutional rights. The trial court did not err at sentencing or abuse its discretion.
A. Appellant may not challenge the validity of his disputed convictions in this second appeal.
In general, California law prohibits a defendant from raising an issue in a second appeal that could have been raised in the first, absent a showing of good cause or justification. (People v. Coelho (2001) 89 Cal.App.4th 861, 873-874, fn. 5; People v. Senior (1995) 33 Cal.App.4th 531, 535; People v. Webb (1986) 186 Cal.App.3d 401, 410.) "[T]he California rule barring a direct attack upon a conviction after a limited remand is a corollary of the more expansive rule recognized under federal law requiring all available arguments to be raised in the initial appeal from the judgment." (People v. Senior, supra, 33 Cal.App.4th at p. 535.)
It is undisputed that appellant did not challenge the validity of his conspiracy convictions in his prior appeal. This court affirmed appellant's judgment in 2020 but we remanded this matter for resentencing based on other concerns. Because appellant failed to appeal the validity of his conspiracy convictions in his first appeal, he is prohibited from now challenging them in this second appeal following the limited remand for resentencing. (See People v. Senior, supra, 33 Cal.App.4th at p. 535.)
Moreover, appellant fails to demonstrate ineffective assistance of counsel. A claim of ineffective assistance should generally be raised in a petition for a writ of habeas corpus and not on direct appeal. (People v. Diaz (1992) 3 Cal.4th 495, 557-558.) However, such a claim may be reviewed on direct appeal when there is no satisfactory explanation for trial counsel's act or failure to act. (In re N.M. (2008) 161 Cal.App.4th 253, 270; In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1; In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253-1255, disapproved of on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
Here, this record does not demonstrate that no satisfactory explanation exists for appellate counsel's alleged ineffectiveness. A charge of conspiracy requires, in relevant part, the prosecution to demonstrate that a defendant "had the specific intent both to agree to the conspiracy and to commit the object offense." (People v. Ware (2022) 14 Cal.5th 151, 164.) A conspiracy to commit murder may exist if, among other things, "at least two" of the participants intended to kill. (People v. Swain (1996) 12 Cal.4th 593, 613.) However, for a defendant to be guilty of conspiring to commit murder, he must harbor the specific intent to kill. (People v. Petznick (2003) 114 Cal.App.4th 663, 680-681.)
Contrary to appellant's vague and sparse assertion of instructional error, the jury in this matter was properly instructed that the prosecution was required to prove that appellant held his own criminal intent in each of the conspiracy charges. The applicable instructions directed the jury to determine whether appellant had intended to enter into each conspiracy, and whether he also intended (along with others) for the underlying crime in each conspiracy to occur. In short, this record does not demonstrate or even reasonably suggest that instructional error occurred in the manner appellant now casually alleges.
On the court's own motion, we take judicial notice of the record in the prior appeal, People v. Avalos, supra, F076301. (Evid. Code, § 452, subd. (d).)
We also reject appellant's assertion that substantial evidence fails to demonstrate that he had formed his own criminal intent to commit the charged crimes. According to appellant, he was a mere messenger who only relayed Sanchez's criminal orders to other gang members. As such, appellant argues that his conspiracy convictions should now be reversed. These assertions are wholly without merit. As noted in our prior opinion, appellant made this same argument to the jury, contending he never formed his own criminal intent because he was only relaying orders from Sanchez. (People v. Avalos, supra, F076301.) In rendering its verdicts, it is abundantly apparent that the jury rejected appellant's position and concluded that the prosecution had proven beyond a reasonable doubt that appellant had intended to enter into each of the conspiracies, and that he had also held his own criminal intent regarding the underlying crimes.
The record amply supports the jury's verdicts. For each of the disputed conspiracy convictions, appellant's own cited evidence overwhelmingly demonstrates his personal involvement in each conspiracy, along with his own personal intent that the underlying crimes would be carried out. For each conspiracy, law enforcement recorded appellant directing a fellow gang member to carry out the particular underlying crime. For the murder conspiracies (counts 17, 65 and 71), appellant clearly indicated to another gang member that the intended victim should be shot. Accordingly, appellant's position is wholly unpersuasive and it is abundantly clear why the jury convicted him.
Although appellant's counsel states he was ineffective in challenging the conspiracy convictions in the prior appeal, no law or argument is provided to this court regarding an alleged claim of ineffective assistance of counsel. Appellant did not file an accompanying writ of habeas corpus or a declaration under penalty of perjury. Thus, appellant fails to establish ineffective assistance of counsel. (See People v. Lucas (1995) 12 Cal.4th 415, 436 [a defendant has the burden of showing both deficient performance and resulting prejudice to establish a claim of ineffective assistance of counsel].) Given the state of the jury instructions and the trial record, it is apparent why these conspiracy convictions were not challenged in the previous appeal. Nothing in this record establishes or even reasonably suggests that appellant was improperly convicted. Especially based on an utter lack of analysis or argument, appellant has not met his burden to show that he would have obtained a more favorable outcome if he had challenged the conspiracy convictions in the first appeal. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
For all of the reasons stated above, appellant may not challenge the validity of his conspiracy convictions in this second appeal.
B. It is not appropriate to reduce appellant's conspiracy convictions.
Appellant asks this court to reduce his conspiracy convictions so that he may be resentenced to reflect his actual culpability. He relies on People v. Dillon (1983) 34 Cal.3d 441 (Dillon). Appellant's reliance on Dillon is misplaced.
Appellant does not explain how his conspiracy convictions should be reduced or what would constitute appropriate lesser crimes.
In Dillon, a 17-year-old became involved in a plan to steal growing marijuana from a field. In a panic, he shot and killed a person who was guarding the field. (Dillon, supra, 34 Cal.3d at pp. 451-452.) Expert testimony at trial established that the defendant was intellectually and emotionally immature. (Dillon, supra, 34 Cal.3d at p. 483.) He had no prior criminal history. (Id. at p. 488.) Although he was found guilty of first degree felony murder, the trial court was reluctant to impose the statutory punishment of life imprisonment, which it considered extraordinarily harsh under the circumstances. (Id. at pp. 486-487.) On appeal, the California Supreme Court held that the unique circumstances established that a sentence of life imprisonment violated the California Constitution. (Dillon, supra, 34 Cal.3d at p. 489.) However, because the defendant had intentionally killed the victim without legally adequate provocation, the high court ruled that he should be punished as a second degree murderer. Thus, the majority in Dillon modified the judgment by reducing the degree of the crime to murder in the second degree and, as so modified, the judgment was affirmed. (Ibid.) The cause was remanded to the trial court with directions to arraign and pronounce judgment on the defendant accordingly. (Ibid.)
In this matter, the unique circumstances found in Dillon are lacking. Nothing from this record demonstrates or even reasonably suggests that appellant's conspiracy convictions should be reduced to lesser crimes. To the contrary, the jury found him guilty of multiple criminal conspiracies, and this court upheld his judgment in 2020. During the 2022 resentencing, the prosecutor noted that appellant had been a key figure in the Norteno street gang, and appellant had been instrumental in organizing and planning numerous gang operations. Appellant had held a position of leadership and he was in contact with numerous gang members, advising them on how to commit the various underlying crimes. Unlike in Dillon, appellant's repeated criminal actions posed a serious risk of injury or death to the various targeted victims. Appellant was a clear danger to his community. Dillon is factually distinguishable and appellant's reliance on that opinion is misplaced. (See People v. Munoz (1984) 157 Cal.App.3d 999, 1014 [Dillon's use of a proportionality analysis to reduce a first degree conviction "must be viewed as representing an exception rather than a general rule"].) Based on this record, it is inappropriate to now reduce appellant's conspiracy convictions to some form of lesser crimes.
C. Appellant's sentence does not violate the Eighth Amendment.
Appellant asserts that the Eighth Amendment was violated because his sentence is disproportionate to his culpability. We disagree.
The Eighth Amendment prohibits the infliction of "cruel and unusual" punishments. (In re Alva (2004) 33 Cal.4th 254, 266.) A punishment violates the Eighth Amendment if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173.) When the length of a particular sentence is challenged, the appellate court considers all of the circumstances to determine if the sentence is unconstitutionally excessive. (Graham v. Florida (2010) 560 U.S. 48, 59.)
The guarantee of the Eighth Amendment applies to the states through the Fourteenth Amendment of the United States Constitution. (Rhodes v. Chapman (1981) 452 U.S. 337, 344-345.)
The United States Supreme Court has concluded that neither a 25-year-to-life sentence for stealing three golf clubs nor a 50-year-to-life sentence for stealing videotapes valued at $153 constituted cruel and unusual punishment. (Ewing v. California (2003) 538 U.S. 11, 30-31; Lockyer v. Andrade (2003) 538 U.S. 63, 77.) In light of the United States Supreme Court precedent and the nature of appellant's crimes, his aggregate sentence of 21 years eight months, plus 50 years to life, does not constitute cruel and unusual punishment under the Eighth Amendment. Appellant was a Norteno leader who was instrumental in planning and organizing numerous gang operations. Appellant repeatedly worked with other gang members to target various people in the community, and his planned operations often involved a risk of serious bodily injury or death.
In counts 17, 65 and 71, appellant was convicted of separate conspiracies to commit murder. For each of those convictions, he received an indeterminate prison sentence of 25 years to life. The court ran the sentence in count 71 concurrently, but the other two life terms were imposed consecutively. For his numerous other felony convictions, including conspiracy to commit a home invasion robbery, he received an aggregate determinate sentence of 21 years eight months.
The totality of the circumstances does not demonstrate or even reasonably suggest that his sentence is grossly disproportionate to his conduct. Consequently, we reject appellant's challenge under the Eighth Amendment. Likewise, his claim also fails under the California Constitution. His punishment is not so severe that it offends fundamental notions of human dignity or shocks the conscience. (See People v. Thomas (2012) 54 Cal.4th 908, 941.) Therefore, we reject appellant's assertion that this matter must be remanded for resentencing.
D. The trial court neither erred nor abused its sentencing discretion.
Appellant contends that the trial court acted "beyond" its discretion when sentencing him. He asserts that the court should have reduced his conspiracy convictions and sentenced him in a way that was commensurate with his level of culpability. We disagree. The trial court did not err or abuse its discretion.
When a defendant has been convicted of two or more offenses, including offenses punishable by indeterminate life sentences, the sentencing court generally has discretion to impose the sentences consecutively or concurrently. (§ 669; People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479.) Under the California Rules of Court, factors impacting a decision to impose consecutive rather than concurrent sentences include (1) if the crimes and their objectives were predominantly independent of each other; (2) if the crimes involved separate acts of violence or threats of violence; or (3) if the crimes were committed at different times or separate places, as opposed to "a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a)(1)-(3).)
After this matter was remanded, appellant cited Dillon to the trial court prior to his 2022 resentencing, and he argued that the Eighth Amendment would be violated if his sentence was not modified. Appellant asked the trial court to punish him-not for conspiracy to commit murder-but for the crime of solicitation of murder, which he asserted reflected "his actual culpability." At the 2022 resentencing hearing, appellant again asserted that his actual culpability was that of a solicitor. He claimed that he had never intended to kill anyone and he asked for concurrent indeterminate sentences to be imposed. He noted he had been a model prison inmate.
The sentencing triad for solicitation of murder is three, six or nine years. (§ 653f, subd. (b).)
Prior to pronouncing sentence, the trial court carefully considered appellant's arguments. The court acknowledged it was not comfortable imposing an aggregate indeterminate sentence of 75 years to life. The court was well acquainted with the Red Sol cases, and it understood that no other defendant from these cases had received such a long sentence. The court initially announced its intent to impose a determinate sentence of around 20 years, along with a single indeterminate term of 25 years to life. The court recognized that appellant was a dangerous person, but it also stated it needed to fashion a sentence that was appropriate for "all the people involved in this case who have been sentenced." However, after hearing argument from the prosecutor regarding appellant's egregious and repeated conduct, the court agreed that an aggregate indeterminate sentence of 50 years to life was appropriate.
In exercising its sentencing discretion, the trial court very carefully considered the arguments from both parties, it examined the totality of the circumstances, and it weighed the proportionality of punishment for appellant relative to other defendants involved in the Red Sol cases. The court's decision to impose consecutive indeterminate sentences is overwhelmingly justified. Appellant participated in multiple conspiracies to commit murder, which were predominantly independent of each other. These crimes involved separate acts of violence or threats of violence. These crimes occurred at different times, and were not "a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a)(1)-(3).)
Our high court has explained that, when properly understood, intracase proportionality examines whether a defendant's death sentence is proportionate to his individual culpability regardless of the punishment imposed on others. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 384.) "The Eighth Amendment's cruel and unusual punishment clause does not require 'intercase' proportionality review." (People v. Andrews (1989) 49 Cal.3d 200, 234.)
Based on this record, the trial court neither erred nor abused its discretion when it resentenced appellant in 2022 to an aggregate indeterminate term of 50 years to life, along with a consecutive determinate sentence of 21 years eight months. Appellant's criminal behavior was abhorrent, and it involved repeated acts of intended violence throughout the community. The court acted well within the bounds of its discretion in fashioning this sentence. As we have already explained, appellant's sentence does not violate his constitutional rights. Accordingly, resentencing is not appropriate and this claim fails.
II. The Determinate Abstract of Judgment Contains Clerical Errors.
The determinate abstract of judgment contains two clerical errors. First, at the resentencing in 2022, the trial court imposed an aggregate determinate sentence of 21 years eight months. The abstract, however, erroneously shows the aggregate determinate sentence to be 22 years eight months.
Second, at the 2022 resentencing, the trial court did not sentence appellant for a gang enhancement in count 127. The abstract incorrectly lists a one year gang enhancement for count 127.
As noted in our prior opinion, the jury did not find true a gang enhancement allegation in count 127. (People v. Avalos, supra, F076301.)
On our own motion, we order the trial court to correct the determinate abstract of judgment to reflect the actual sentence imposed. (See People v. Mitchell (2001) 26 Cal.4th 181, 186-187.) The reference to a gang enhancement in count 127 should be stricken and the total determinate sentence reflected in box 8. should be 21 years eight months.
DISPOSITION
The trial court shall amend appellant's determinate abstract of judgment to strike any reference to a gang enhancement in count 127. In addition, the total determinate sentence should be listed in the determinate abstract of judgment as 21 years eight months. The court shall have the amended abstract forwarded to the appropriate authorities. In all other respects, appellant's judgment is affirmed.
[*]Before Hill, P. J., Levy, J. and Franson, J.