Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA280340, Stephen A. Marcus, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury convicted defendant and appellant Jose Beteta of carjacking, second degree robbery, dissuading a witness by force or threats, and criminal threats. As to all counts, the jury found true gang enhancement allegations under Penal Code section 186.22, subdivision (b)(1). Beteta’s sentence was enhanced based on the gang allegations and included a life term with a 15-year minimum parole eligibility. Beteta appealed the judgment, and we reversed the true findings on the gang enhancement allegations on all counts and remanded for resentencing. At the resentencing hearing, the trial court sentenced Beteta to a total of 10 years, 8 months, whereas his coparticipant in the crime pleaded guilty before trial and received four years in prison. Beteta has appealed a second time, contending that his sentence violates his due process rights because the prosecutor argued inconsistent and irreconcilable factual theories. We disagree and affirm the judgment.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
We detailed the underlying facts in People v. Jose Beteta (B187392, June 14, 2007 [nonpub. opn.]), and we do not repeat them at length here, since the issue before us on this second appeal is a limited one. In short, Erika Ahumada went out on March 15, 2005 with Jose Beteta and his friend, Guillermo De Los Angeles. The two men got drunk. While Ahumada was driving them home, the men hit her; threatened to kill her if she said anything to the police, and took her jewelry and car. Beteta and De Los Angeles then went to a back house Beteta rented from Maria Escobar. Beteta and De Los Angeles caused a ruckus, awakening the Escobars. When Franklin Escobar came out of the house, Beteta threatened him. As Beteta drove away, he fired a gun at the Escobars.
II. Procedural background.
A. The initial trial court proceedings.
Beteta and De Los Angeles were charged with: count 1 for carjacking Ahumada (§ 215, subd. (a)); count 2 for second degree robbery of Ahumada (§ 211); count 3 for dissuading a witness, Ahumada, by force or threat (§ 136.1, subd. (c)(1)); count 4 for criminal threats against Franklin Escobar (§ 422); count 5 for the attempted murder of Franklin Escobar (§§ 187, subd. (a), 664); count 6 for the attempted murder of Flor Escobar (§§ 187, subd. (a), 664); and count 7 for the attempted murder of Maria Escobar (§§ 187, subd. (a), 664). Gun use allegations (§ 12022.53, subds. (b) & (c)) were alleged as to counts 5, 6 and 7, and gang enhancements (§186.22, subd. (b)) were alleged as to all counts.
After Ahumada testified at the preliminary hearing, the prosecutor informed the trial court that the People did not intend to proceed on the gang enhancement allegations as to counts 1, 2, and 3 concerning the Ahumada incident. An information filed after the preliminary hearing reflected the dismissal of the gang allegations as to those counts. The trial court also dismissed counts 4-7 as to De Los Angeles, but added a count 8 for accessory after the fact (§ 32).
Thereafter, De Los Angeles pleaded guilty to carjacking and to second degree robbery. He was sentenced to three years (low term) for carjacking plus one year (one-third the midterm) for the second degree robbery, for a total of four years. The remaining counts were dismissed.
The People then filed an amended information deleting references to De Los Angeles. Although they had been dismissed, the amended information realleged the gang enhancements as to counts 1, 2, and 3 against Beteta. Defense counsel did not object to the amended information. Instead, he waived reading the amended information, and Beteta pleaded not guilty and denied all special allegations.
On October 7, 2005, a jury found Beteta guilty of carjacking (count 1), second degree robbery (count 2), dissuading a witness, Ahumada, by force or threat (count 3), and criminal threats against Franklin Escobar (count 4). The jury found true the gang enhancement allegations as to all four counts. The jury, however, found Beteta not guilty of the three counts of attempted murder.
On November 10, 2005, the trial court sentenced Beteta to “15 years to life” on count 1 consecutive to the low term of 2 years plus 5 years under section 186.22, subdivision (b), on count 4. The court also sentenced Beteta to a consecutive seven years to life on count 3. The court imposed but stayed an upper term sentence of 5 years plus 10 years under section 186.22, subdivision (b), on count 2.
We believe that the technically correct way to state the sentence on count 1 is life with a 15-year minimum parole eligibility.
Beteta refers to this 15-year sentence as a “life” sentence, but it is not properly characterized as such.
B. Beteta’s first appeal—case No. B187392 .
Beteta filed an appeal in which he raised the following contentions: the true findings on the gang enhancement allegations should be reversed because, first, his trial counsel was ineffective for failing to move to dismiss those allegations; second, there was insufficient evidence to support the true findings; third, the jury was not instructed on the gang enhancement; and, fourth, the prosecutor used inconsistent and irreconcilable theories to obtain “life sentences” for Beteta while obtaining a four-year sentence for his coparticipant, De Los Angeles, in the crime. We held that there was insufficient evidence to support the gang enhancement as to counts 1-3, and we reversed the true findings. We also held that the failure to instruct the jury on the gang enhancement was not harmless error, and we therefore reversed the true finding on count 4 and remanded for resentencing. Because the matter was remanded for resentencing, we did not address the remaining issues, including Beteta’s contention that the prosecutor used factually inconsistent and irreconcilable theories to obtain a more lengthy sentence for Beteta versus De Los Angeles, who received a sentence of only four years in prison.
C. The remand.
The trial court resentenced defendant on April 24, 2009 to the high term of nine years on count 1 (carjacking); to one year, consecutive, on count 3 (dissuading a witness); and to eight months on count 4 (criminal threats), also consecutive. The court imposed a high term, five-year sentence on count 2 (robbery), but stayed it under section 654. Beteta’s total sentence therefore was 10 years, 8 months.
While these appellate and other proceedings were ongoing, Beteta was convicted of murder in another case and sentenced to life without the possibility of parole.
DISCUSSION
I. Defendant’s sentence does not violate his due process rights.
One of the contentions defendant raised in his first appeal was that his sentence violated his federal due process rights, because the prosecutor used “inconsistent and irreconcilable” theories to obtain it, while allowing De Los Angeles to get only four years in prison. Because Beteta’s sentence was based on the true findings on the gang enhancements, which we reversed, and because we remanded for resentencing, we did not address the due process issue. On remand, the trial court resentenced defendant to determinate terms. Defendant, however, maintains that the revised sentence still violates his federal due process rights: “the prosecutor’s misconduct so poisoned the well, its spill over effects when appellant was resentenced four years later, resulted in the longest possible sentence, based on the same false factual basis.”
After setting forth some additional relevant facts, we explain why this contention has no merit.
A. The original sentencing proceedings.
At the original sentencing hearing on November 10, 2005, the trial court said it was inclined to sentence Beteta to 15 years to life on count 1 (carjacking) under section 186.22, subdivision (b)(4), and to the midterm of two years on count 4 for criminal threats, plus five years for the gang enhancement and to seven years on count 3, dissuading a witness. After “considerable thought,” the court intended to impose 15 years to life on count 2 for robbery, but to stay it under section 654.
Beteta’s defense counsel responded to the trial court’s tentative by first pointing out that Beteta’s prior record consisted of misdemeanors, in contrast to De Los Angeles, who was a convicted felon. He also argued that De Los Angeles was the instigator of violence and the one who took Ahumada’s jewelry. Beteta, he argued, should be treated no differently than De Los Angeles.
The trial court responded, “I certainly can’t explain why the D.A. made the deal he did in the sense that––there may be factors... unknown to the court as to why the deal was made [as] to Mr. De Los Angeles and the same deal wasn’t offered to Mr. Beteta. I mean, the court is not blind to the fact––it’s not taking that into consideration in sentencing him, but it’s not blind to the fact that he has two open murder cases. Am I incorrect on that?
“[Defense counsel]: I don’t think the court should take that into consideration at all.
“The court: I am not taking it into consideration. I’m pointing out that the D.A.’s office may have taken that into consideration. I don’t know.
“[The prosecutor]: Just for the record, before this all began, Mr. De Los Angeles came to me at the very beginning of the case and wanted a deal. He wanted to accept responsibility. There was no evidence that Mr. De Los Angeles used a firearm at any time that night. That’s what I did. I made him a deal that reflected, at that time, what I thought his culpability was.
“The court: I can’t be unmindful of the fact that your client was charged with attempted murder and use of a firearm, which is a much more serious matter.
“[The prosecutor]: I offered Mr. Beteta 15 years before this began. The defense basically thumbed their nose because they felt as though––that he was never going to be convicted of a gang crime. Well, the jury has spoken. Your Honor has spoken, and now it’s a time where that 15 years looks attractive. [¶] That was––I would never offer the 15 years now, knowing what I know now. Now that I know the crime spree that Mr. Beteta went on, and I know his level of culpability, his violence against an innocent woman, his violence and threats of violence against a family in the middle of the night, what I believe to be gun use at the conclusion of this, I mean, this is––I don’t know when Mr. Beteta and Mr. Cohen are going to understand that this is a gang crime. [¶] This gang membership and involvement of these two men gives courage to cowards. That’s why Mr. Beteta could do this. It’s the same thing I argued to the jury. That’s why he did this. He could get away with it. He was with his buddy, and his buddy happened to be a fellow 18th-Streeter, and that’s why they help each other. That’s what the expert said. [¶] So I think Your Honor is hitting the nail on the head when you sentence him to the sentence that you’ve described.”
The trial court said it would not stay the gang enhancement, because “I think that the conduct in this matter was egregious, and I personally believe it was out of a gang situation, that, just as you said, these two gentlemen being in the same gang, wearing the tattoos and so forth of gang members, that is what fueled their conduct. [¶] Had they not been gang members, I don’t think they would have entered into the sort of crime spree that occurred that evening. Even though, again, he was acquitted of the other situation, clearly he was involved in the situation later on which also bore fingerprints of gang involvement....”
The trial court then asked whether it should impose consecutive life sentences. Defense counsel repeated that De Los Angeles led the crime spree, while the prosecutor responded that Beteta had never expressed remorse. The court then pronounced sentence, as set forth above. The court added: “On the remaining count, count 3, [section] 136.1, dissuading a witness, the court is going to choose to impose the sentence consecutively. While the court recognizes that the prior record of the defendant is not one––is not one that’s egregious or extensive, the court is taking into account the conduct on this evening, what I am sort of terming a crime spree, and while Mr. Cohen has attempted to divide up the conduct between Mr. Beteta and Mr. De Los Angeles, the court does not believe that... can occur, that they are both jointly and [severally] liable for everything that happened. [¶] There was a car crash. There [were] all kinds of events. There was the taking of the jewelry from Ms. Ahumada, and there was the subsequent conduct, which he was acquitted of, but there was certainly the issue that he then, that evening––he didn’t finish. He went back to the house, and certainly there was the conduct of engaging the Escobars in an argument and vandalizing their car. I think the court can take that into account. [¶] But the overall picture is of someone who shows no respect for the law, who had no compunction about punching a girl in the face, and who displayed, in this particular evening, a rather callous attitude. [¶] I think what makes this... really vicious is he had a girl he went out with, someone he knew... [,] and this is what he did to this person. This is the conduct––this wasn’t a stranger. This wasn’t some other gang member. This was a woman who agreed to go to his birthday party, to be there, presumably, to provide him with comfort and to have a friend present at the birthday party, and this is how he rewarded that person: he took her car; he took her jewelry; he punched her in the face, and then he went on some car chase, which, by the way, could have also injured a number of people. Luckily, it did not. [¶] I do hold him accountable for every single thing that De Los Angeles did. They did this together. They were in this together.”
B. The resentencing hearing after remand.
The resentencing hearing took place over two days. On the first day of sentencing on April 17, 2009, the trial court gave a tentative, which included a consecutive sentence on counts 3 and 4 because they were separate incidents and because of Beteta’s prior record. The prosecutor then said that Beteta was on probation at the time he committed the current offenses, although defense counsel said his prior record consisted only of misdemeanors. When defense counsel asserted that De Los Angeles was more culpable than Beteta, the prosecutor explained that De Los Angeles got the four-year deal because, at the time, witnesses described him as trying to stop Beteta from shooting at the Escobars, which was the more serious offense in the prosecutor’s estimation. While the trial court was pronouncing sentence, defendant objected because he hadn’t had time to talk to his attorney.
The matter was therefore continued to April 24, 2009, at which time defendant protested that he had only just had the opportunity to talk to his attorney. The trial court proceeded to sentence Beteta. It explained that it chose the high term on count 1 because Beteta hit the victim; he actively participated in the crime; he had a prior record; his prior convictions were of numerous and increasing seriousness; and his prior performance on parole was unsatisfactory. To the extent it was a mitigating factor, the court said it considered that Beteta was intoxicated when he committed the crimes. The court added that it chose consecutive sentences on counts 3 and 4 because dissuading a witness and criminal threats had independent objectives from counts 1 and 2, and the victim in count 4 was different than the victim in counts 1, 2 and 3.
C. Beteta’s revised sentence does not violate his federal due process rights.
To support his argument that his sentence resulted from the fundamentally unfair use of irreconcilable theories of guilt, Beteta relies on In re Sakarias (2005) 35 Cal.4th 140 (Sakarias). Sakarias involved two defendants tried separately for the same murder. Although the evidence suggested that both defendants struck the victim, the prosecutor argued at both trials that the defendant then on trial inflicted all of the chopping wounds. (Id. at p. 147.) The court concluded that fundamental fairness does not allow the People, in the absence of a good faith justification, “to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth. At least where, as in Sakarias’s case, the change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained.” (Id. at pp. 155-156.)
Sakarias is inapplicable to this case for the simple reason that Beteta does not, and cannot, point to a factual theory urged by the prosecutor against him that was inconsistent and irreconcilable with another factual theory urged against De Los Angeles. Rather, Beteta bases his claim merely on that he and De Los Angeles received different sentences and that De Los Angeles was, according to him, more culpable. These are not “factual theories” within the meaning of Sakarias. At no time did the prosecutor deliberately manipulate evidence and, for example, in one breath assert that only De Los Angeles hit Ahumada and in the next that only Beteta did. Such manipulation might have made this case more like Sakarias, but nothing remotely like that happened here.
What did happen—different sentences for the two perpetrators of the crimes—in no way violates Beteta’s due process rights. (People v. Foster (1988) 201 Cal.App.3d 20, 26-27 [codefendant pleaded guilty and was sentenced to four years in prison while defendant was convicted and sentenced to 15 years, 4 months; disparity in sentences did not violate defendant’s due process rights]; see People v. Jackson (1996) 13 Cal.4th 1164, 1246 [disproportionate sentences between codefendants does not violate constitutional proscription against cruel and unusual punishment].) Nor does anything in the record suggest that Beteta received a higher sentence for an improper reason. When De Los Angeles pleaded guilty to carjacking and robbery, no gang enhancement allegations were alleged against him. But by the time Beteta went to trial, the gang allegations had been realleged. Because the jury found those allegations true, the trial court initially imposed a life sentence with 15-year minimum parole eligibility on count 1 and a total of 15 years on count 2 as to Beteta. Based on the true finding on the gang enhancements, the sentence was appropriate. It is unclear to us how following a statutorily-mandated sentence implies bad faith, either on the part of the prosecutor or the trial court.
Beteta, however, goes on to make much—too much—of the fact that the prosecutor realleged the gang enhancements against him after De Los Angeles pleaded guilty. The original information alleged gang enhancements as to all counts. But after Ahumada testified at the preliminary hearing, the prosecutor said he would not proceed on the gang enhancement allegations as to counts 1, 2, and 3 concerning the Ahumada incident. An information filed after the preliminary hearing reflected the dismissal of the gang allegations as to those counts. De Los Angeles then pleaded guilty to carjacking and to second degree robbery and received a four-year prison term. The People filed an amended information deleting references to De Los Angeles but realleging the gang enhancements as to counts 1, 2, and 3. The prosecutor did not explain why they were realleged after he had said he would not pursue them, and defense counsel did not object to their inclusion.
Beteta now guesses that “once the prosecutor secured a plea conditional on De Los Angeles’s not taking sole responsibility for those counts, it became a gang case as to appellant based on the same facts available to the prosecutor from day one.” For the prosecutor to pursue the matter as a gang case as to Beteta but not as to De Los Angeles, Beteta argues, is “inconsistent” and violates Sakarias. It is unclear why the prosecutor realleged the gang enhancements. Given that the prosecutor said in open court he wasn’t going to pursue the gang enhancements, it is, however, more than likely that their inclusion in the amended information was simply an error, overlooked by both the prosecutor and by defense counsel. In any event, nothing in Sakarias prohibited the prosecutor from pursuing the gang allegations against Beteta even though they were not alleged against De Los Angeles.
Moreover, Beteta’s belief that De Los Angeles was the “more culpable” defendant does not compel the conclusion that Beteta’s sentence resulted from some legally unfair scheme. To the contrary, the information originally alleged the attempted murder counts against both defendants, but the trial court dismissed those counts as to De Los Angeles. Indeed, the undisputed evidence was Beteta fired the gun, not De Los Angeles. The prosecutor, justifiably, considered those counts the more serious. Also, as to the Ahumada incident, the evidence was that De Los Angeles started the violence against Ahumada, but that Beteta joined in, even punching Ahumada at one point. The trial court noted that Beteta’s actions were especially reprehensible since he and Ahumada were friendly acquaintances and Ahumada had willingly gone out with Beteta that night to celebrate his birthday. Therefore, although Beteta was acquitted of the attempted murder charges, it can hardly be said he was “less culpable” than De Los Angeles.
Beteta finally argues that by allowing “inconsistent and impermissible factors” to be injected into the sentencing proceedings, the trial court abused its discretion in sentencing him. In sentencing a defendant, a trial court has broad discretion, although that discretion “must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.]” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Given that inconsistent and irreconcilable factual theories were not injected into the proceedings, the trial court cannot have abused its discretion by considering such nonexistent theories. But in addition to the “factors” we have readily dismissed above, Beteta points to the trial court’s alleged reliance on a probation report written in a murder case pending against him. It appears, however, that the court reviewed that report for Beteta’s criminal history. The court took note of that murder case at Beteta’s sentencing hearing, but expressly said it was not relying on it in determining Beteta’s sentence in this case.
In his reply brief, Beteta links the prosecutor’s alleged use of inconsistent and irreconcilable factors to prosecutorial misconduct and to judicial bias. To the extent Beteta attempted to raise prosecutorial misconduct and judicial bias as separate issues apart from the Sakarias issue, they were not properly raised. And, in any event, we would reject them for the same reasons we rejected Beteta’s contentions under Sakarias.
Rather, the trial court was quite clear regarding what it was relying on in determining Beteta’s sentence: Beteta hit the victim; he actively participated in the crime; he had a prior record; his prior convictions were of numerous and increasing seriousness; and his prior performance on parole was unsatisfactory. Beteta does not argue that the court abused its discretion in considering any of these factors, nor does he otherwise argue that the high term or consecutive sentencing were improper. Our lengthy recitation of the events at the two sentencing proceedings shows that the court gave due and measured consideration to Beteta’s sentences. We therefore conclude that a remand for a third resentencing hearing is unnecessary.
DISPOSITION
Appellant and defendant’s request for judicial notice of the file in case No. B187392 is granted. Appellant and defendant’s request to unseal De Los Angeles’s plea agreement is denied. The judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.