Opinion
B295721
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. TOMMIE LEE BAKER, Defendant and Appellant.
Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Steven E. Mercer and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA095371) APPEAL from a judgment of the Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed as modified and remanded with directions. Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Steven E. Mercer and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Tommie Lee Baker (defendant) appeals from the sentence imposed at a January 15, 2019 resentencing hearing on his 2007 convictions for attempted murder and four counts of attempted carjacking. We remand the matter for resentencing. The judgment is affirmed as modified.
BACKGROUND
Conviction and 2007 sentencing
Defendant attempted to take a vehicle from Antonio Godinez (Godinez) while Godinez's two young children were in the backseat. Godinez attempted to thwart the carjacking attempt by hitting defendant with a stick, trying to pull defendant out of the vehicle's front seat, and then to free his children from the backseat. Defendant then shot Godinez in the head, and approached Godinez's neighbor, Felis Vargas (Vargas), who had witnessed the shooting. Defendant unsuccessfully attempted to open her locked car door, and then fled. He was later apprehended. (People v. Baker (May 7, 2009, B204173) [nonpub. opn.].)
A jury convicted defendant of attempted murder and found that he personally used, intentionally discharged, and proximately caused great bodily injury with a firearm (Pen. Code, § 12022.53, subds. (b)-(d)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury also convicted defendant of four counts of attempted carjacking and found that during each crime defendant personally used a firearm (§ 12022.53, subd. (b)). As to count 2, the attempted carjacking from Godinez, the jury also found that defendant inflicted great bodily injury (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced in 2007 to a 33-year determinate term plus a consecutive 25-year-to-life indeterminate term, calculated as follows:
Count 1: Attempted murder (Pen. Code, §§ 664, 187). The high term of nine years, doubled to 18 years due to a prior strike conviction, plus a 25-year-to-life indeterminate term pursuant to section 12022.53, subdivision (d) (personal use of firearm, causing great bodily injury).
Count 2: Attempted carjacking (§§ 664, 215, subd. (a)). Ten months (one-third of the mid-term), doubled to one year eight months due to the prior strike conviction, plus three years four months (one-third of the mid-term of 10 years) pursuant to section 12022.53, subdivision (b) (personal use of a firearm); and an additional five years pursuant to section 667, subdivision (a)(1), for a total of 10 years, consecutive.
Counts 3 and 4: Attempted carjacking (§§ 664, 215, subd. (a)). Sentence stayed pursuant to section 654.
Count 5: Attempted carjacking (§§ 664, 215, subd. (a). Ten months (one-third of the mid-term), doubled to one year eight months based on the prior strike conviction, plus a firearm enhancement of three years four months (one-third of 10 years) pursuant to section 12022.53, subdivision (b), for a total of five years.
On appeal, this court remanded the matter for resentencing because the trial court erroneously stayed the sentences for counts 3 and 4. (People v. Baker, supra, B204173.)
2019 resentencing
In 2018, the California Department of Corrections sent the trial court a letter requesting clarification regarding inconsistences between the abstract of judgment and a related minute order. The letter stated in part: "When notified by the Department of Corrections and Rehabilitation that an illegal sentence exists, the trial court is entitled to reconsider all sentencing choices, People v. Hill [(1986)] 185 Cal.App.3d 831."
At the resentencing hearing held on January 15, 2019, the trial court denied defendant's request to represent himself. Defendant then asked to have his attorney replaced, which was denied after a Marsden hearing.
People v. Marsden (1970) 2 Cal.3d 118.
At resentencing, defendant's counsel asked the trial court to consider exercising its discretion to strike any firearm enhancements.
The trial court selected count 1 as the principal term and imposed 18 years plus an additional consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d) for willful discharge of a firearm causing great bodily injury. The trial court struck the firearm enhancements in counts 3 and 4 but declined to strike the firearm enhancement in count 5. The five-year prior serious felony enhancement was stricken as to all counts.
The trial court imposed a determinate term of 31 years 4 months plus a consecutive 25-year-to-life indeterminate term, calculated as follows:
Count 1: Attempted murder (Antonio Godinez) (§§ 664, 187). High term of nine years, doubled to 18 years due to the prior strike conviction, plus a consecutive 25 years to life indeterminate term for personal use of a firearm, causing great bodily injury. (§ 12022.53, subd. (d).)
Count 2: Attempted carjacking (Antonio Godinez) (§§ 664, 215, subd. (a)). Ten months (one-third of midterm), doubled to one year eight months based on the prior strike conviction, to run consecutively.
Count 3: Attempted carjacking (Linette Godinez) (§§ 664, 215, subd. (a)). Midterm of two and one-half years, doubled to five years due to the prior strike, to run concurrently.
Count 4: Attempted carjacking (Antonio Godinez Jr.) (§§ 664, 215, subd. (a)). Midterm of two and one-half years, doubled to five years due to the prior strike, to run concurrently.
Count 5: Attempted carjacking (Felis Vargas) (§§ 664, 215, subd. (a)). Ten months (one-third of midterm), doubled to one year eight months due to the prior strike, plus 10 years for personal use of a firearm (§ 12022.53, subd. (b)).
This appeal followed.
CONTENTIONS ON APPEAL
Defendant contends his sentence must be vacated and the matter remanded for resentencing because: (1) in count 5, the trial court erred by imposing a full 10-year term under section 12022.53, subdivision (b) for personal use of a firearm, instead of one-third of that term, or three years eight months; (2) in count 1, the trial court did not understand the scope of its discretion to strike the 25-year-to-life term originally imposed under section 12022.53, subdivision (d) (personal use of a firearm causing great bodily injury) and the opportunity to impose a lesser term under section 12022.53, subdivisions (b) or (c), of 10 or 20 years, respectively; and (3) the trial court erred by denying defendant's request to represent himself at the resentencing hearing.
The Attorney General agrees that the trial court erred by imposing a full 10-year firearm enhancement for count 5 rather than one-third of that term, and does not oppose remand for resentencing for that reason. In addition, as to count 2, the Attorney General points out additional sentencing errors: the trial court failed to impose or strike the firearm enhancement under section 12022.53, subdivision (b) and the great bodily injury enhancement under section 12022.7, subdivision (a).
Defendant agrees that the trial court erred by failing to impose or strike the firearm and great bodily injury enhancements related to count 2, but argues that the great bodily injury enhancement, if imposed at resentencing, must be stayed pursuant to section 654.
DISCUSSION
I. Count 5: Attempted carjacking (Vargas)
As to count 5, the trial court erred by imposing a full 10-year enhancement for personal use of a firearm under section 12022.53, subdivision (b), rather than three years and four months (one-third of 10 years). The sentence for count 5 was a subordinate determinate term the trial court imposed consecutively to the principal 18-year determinate term imposed for count 1. Under section 1170.1, subdivision (a), which governs sentencing for multiple determinate terms, the trial court should have imposed the lesser term of three years four months. (§ 1170.1, subd. (a).) Noting the Attorney General's agreement, we remand to the trial court for resentencing on count 5.
Section 1170.1, subdivision (a) provides in part: "The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses."
II. Count 2: Attempted carjacking (Antonio Godinez)
As to count 2, the trial court erred by failing to impose or strike, pursuant to section 12022.53, subdivision (h), the firearm enhancement provided in subdivision (b) of section 12022.53 and the great bodily injury enhancement provided in section 12022.7, subdivision (a).
The jury convicted defendant in count 2 of attempted carjacking of Antonio Godinez and found that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b), and personally inflicted great bodily injury on Antonio Godinez within the meaning of section 12022.7, subdivision (a). In resentencing defendant on count 2, the trial court neglected to address either enhancement.
A. Firearm enhancement
Section 12022.53, subdivision (b) imposes a 10-year sentence enhancement for personal use of a firearm. Subdivision (h) of section 12022.53, in effect at the time of defendant's January 2019 resentencing, authorized the trial court to strike or dismiss that enhancement: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).) The trial court accordingly should have imposed or stricken a three-year four-month sentence enhancement (one-third of 10 years) under section 12022.53, subdivision (b).
B. Great bodily injury enhancement
Section 12022.7, subdivision (a) imposes a three-year sentence enhancement for personally inflicting great bodily injury during commission of an attempted felony: "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." (§ 12022.7, subd. (a).) Imposition of a firearm enhancement under subdivision (b) of section 12022.7 does not preclude a court from imposing an enhancement under subdivision (a) for inflicting great bodily injury. (§ 1170.1, subd. (g); People v. Ahmed (2011) 53 Cal.4th 156, 167-168.) The trial court accordingly should have imposed or stricken a one-year sentence enhancement (one-third of three years) under section 12022.7, subdivision (a) for inflicting great bodily injury during the attempted carjacking.
On remand, if the trial court chooses to impose the section 12022.7, subdivision (a) enhancement on count two, that punishment must be stayed pursuant to section 654, which prohibits dual punishment for the same act. As to count 1, the attempted murder of Godinez, the trial court imposed a consecutive 25-year-to-life sentence under section 12022.53, subdivision (d), for intentionally discharging a firearm causing great bodily injury. Count 2, the attempted carjacking, involved the same victim and the same act -- firing a gun at Godinez, causing him great bodily injury. Because a 25-year-to-life punishment was imposed in count 1, any great bodily injury enhancement in count 2, if imposed, must be stayed. (§ 654.)
Section 654, subdivision (a) states in part: "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." --------
III. Count 1: Attempted murder (Antonio Godinez)
We reject defendant's contention that the trial court did not understand that its discretion under section 12022.53, subdivision (h), permitted it to strike the 25-year-to-life enhancement under subdivision (d) and to impose a lesser enhancement of either 10 years under subdivision (b), or 20 years under subdivision (c). The record does not support defendant's assertion. Rather, it shows that the trial court considered defense counsel's request to "consider based on the new law any discretionary decision to strike any firearm enhancements" with regard to defendant's sentence, and that the court knowingly chose to impose a 25-year-to-life enhancement pursuant to section 12022.53, subdivision (d).
Defendant's reliance on People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) is misplaced. In that case, the trial court declined to strike a section 12022.53, subdivision (d) firearm enhancement. (Id. at p. 220.) Unlike this case, in which the jury found true three different charged firearm enhancements under section 12022.53, subdivisions (b), (c), and (d), in Morrison the operative information only charged, and the jury only found true, a single firearm enhancement under subdivision (d). (Id. at p. 221.)
The appellate court in Morrison held that the trial court had the discretion to impose a lesser, uncharged firearm "enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d), if such an outcome was found to be in the interests of justice under section 1385." (Morrison, supra, 34 Cal.App.5th at p. 223.) Because the record did not reflect that the trial court had understood that this option was available, and, at the time of sentencing, "no published case had held an uncharged lesser firearm enhancement could be imposed in lieu of an enhancement under section 12022.53, subdivision (d) in connection with striking the greater enhancement[,]" the matter was remanded. (Id. at p. 224.) Significantly, the Morrison court explicitly limited its holding to "cases where those enhancements have not been charged in the alternative and found true." (Id. at p. 225.)
In contrast, defendant in this case was charged with the lesser firearm enhancements, which the jury found to be true. The trial court would have known that striking the 25-year-to-life enhancement under section 12022.53, subdivision (d), "would leave intact the remaining findings, and an enhancement under the greatest of [the] provisions [under subdivisions (b) and (c)] would be mandatory unless those findings were also stricken in the interests of justice." (Morrison, supra, 34 Cal.App.5th at p. 222; see also § 12022.53, subd. (f); People v. Gutierrez (2014) 58 Cal.4th 1354, 1390 ["Absent evidence to the contrary, we presume that the trial court knew and applied the governing law"].)
We decline to depart from "the usual presumption that a sentencing court correctly applied the law" (Morrison, supra, 34 Cal.App.5th at p. 225) and therefore will not remand for resentencing on this count.
IV. Request for self-representation
We need not address defendant's argument that the trial court improperly denied his request to represent himself at the resentencing hearing. The issue is moot, as we remand the matter for resentencing. On remand, defendant can again request self-representation, and the trial court can consider that request based on the facts known at the time.
DISPOSITION
The judgment is affirmed as modified. On count 2 and on count 5, the matter is remanded for resentencing. Upon remand regarding count 2, the trial court shall exercise its discretion whether to impose or to strike a three-year four-month sentence under section 12022.53, subdivision (b) for personal use of a firearm. The trial court shall also exercise its discretion either to strike or to impose and stay, the one-year sentence under section 12022.7, subdivision (a) for inflicting great bodily injury. As to count 5 the trial court must strike the full 10-year term for the section 12022.53, subdivision (b) firearm enhancement and instead impose one-third of that term (three years eight months). The superior court is then directed to issue a new abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, Acting P. J.
ASHMANN-GERST /s/_________, J.
HOFFSTADT