Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed; remanded with directions., Los Angeles County, Super. Ct. No. BA293320.
John F. Schuck, 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, Theresa A. Patterson and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Efrain Cobos was found guilty by a jury of two counts of the lesser included offenses of attempted voluntary manslaughter and of the allegations that he personally and intentionally discharged a firearm in the commission of the offenses, causing great bodily injuries. Appellant was found not guilty of two counts of attempted premeditated murder, robbery and grand theft. He was sentenced to 19 years four months; we discuss the sentence in detail below. Cobos appeals, contending that the imposition of an upper term 10-year enhancement was error under Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. He also contends that the trial court erred in amending the information in a manner we detail in part 1 of the DISCUSSION. We affirm.
FACTS
At the Shoe Warehouse on East Fourth Street in Los Angeles, Hector Rivera, one of the victims, offered to sell appellant a DVD player, an amplifier and speakers. Appellant was interested and they agreed to meet the following day.
When they met the next day, Rivera was accompanied by Claudio Valladares, the other victim, and by Kanec Bartolome (Kanec), who was also known by another last name. Appellant was in the company of two men, one described as tall, the other as short. Rivera, Valladares and Kanec arrived in an Accord; appellant and his associates were in a Mercury Marquis.
Valladares and appellant were speaking about the impending sale when appellant reached into his pocket and produced a gun. Appellant told Rivera, Valladares and Kanec to get back into the Accord. Pointing his gun at Rivera, appellant told him to hand over his cellular phone and a gold chain he was wearing; Rivera complied.
Valladares told appellant’s tall associate, who was also holding a gun, that police officers were approaching. The associate turned to look and Valladares grabbed the gun, which turned out to be a plastic imitation.
Rivera now got out of the Accord and attempted to push appellant down. Appellant evaded him and Rivera fell to the ground. Appellant shot Rivera as the latter was trying to get up. Rivera fell back to the ground.
Appellant and his short associate got back into the Mercury Marquis. The taller associate tried to join them in the car but Valladares grabbed him. Appellant stuck his arm out of the car and shot and hit Valladares in the chest. The tall associate got into the car and appellant and his two associates drove away.
A canvass of the scene by the police yielded numerous fragments of an air pistol, an expended shell casing from a .45-caliber firearm and a blood stain.
A search of the apartment of one of appellant’s two associates (Eduardo Mendoza) produced, among other things, a Colt .45. It was stipulated at trial that the shell casing found at the scene had been fired from this weapon. As this search was in progress, appellant was apprehended while attempting to drive away from the search scene.
Appellant conceded that he met Rivera, Valladares and Kanec but sought to portray the events as a series of assaults by these three men on appellant and his associates. Appellant admitted that he was armed. Appellant claimed that one shot went off accidentally during the struggle with Rivera and that he fired the second shot when Valladares grabbed appellant’s associate around the neck.
The gunshot wounds sustained by Rivera and Valladares were serious.
THE JURY’s VERDICT
In addition to finding appellant guilty of attempted voluntary manslaughter as to Rivera (count 1) and Valladares (count 2), the jury found to be “ true” the allegations that appellant personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b), that he personally and intentionally discharged a handgun within the meaning of section 12022.53, subdivision (c), and that he personally and intentionally discharged a firearm, which proximately caused great bodily injury to Rivera in the sense of section 12022.53, subdivision (d). The jury returned an identical verdict on the enhancements as to Valladares.
All further statutory references are to the Penal Code.
Subdivision (b) of section 12022.53 provides: “ Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.”
Subdivision (c) of section 12022.53 provides: “ Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years.”
Subdivision (d) of section 12022.53 provides: “ Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, 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, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
APPELLANT’s SENTENCE
The firearm enhancements were originally charged under section 12022.53. While this section lists 18 serious felonies to which it applies, it does not list attempted voluntary manslaughter. Thus, once the jury found appellant not guilty of attempted murder, which is listed in section 12022.53, this section no longer applied.
Recognizing this problem, the district attorney moved to “ amend the verdict forms by interlineations to correct them and to reflect the jury’s findings of fact by deleting the reference to [section] 12022.53 and by inserting the correct Penal Code Sections, those being Penal Code Section 12022.5, personal use of a firearm, as it applies to attempted voluntary manslaughter, and 12022.7, willful infliction of great bodily injury, as it applies to the same charge.” During the sentencing hearing, the trial court granted this motion, although the court omitted to make specific mention of section 12022.7.
“ THE COURT: All right. People’s motion to amend -- to allege the violation of Penal Code section 12022.5 in place of 12022.53 is granted, and that’s to conform to the jury’s finding.”
As to the count charging the shooting of Rivera, the trial court selected the midterm of three years. Pursuant to section 12022.5, the trial court imposed a consecutive 10-year sentence on this count. It is this enhancement that is challenged in this appeal. In addition, pursuant to section 12022.7, the trial court imposed a consecutive three-year term for a total of 16 years on this count. Respondent concedes that, in imposing the upper term of 10 years under section 12022.5, the trial court did not state the reasons for this decision. This violates rule 4.406(b)(4) of the California Rules of Court.
Subdivision (a) of section 12022.5 provides: “ Except as provided in subdivision (b), any person who personally uses a firearm 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 3, 4, or 10 years, unless use of a firearm is an element of that offense.” Subdivision (b) does not apply to this case.
Subdivision (a) of section 12022.7 provides: “ 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.”
California Rules of Court rule 4.406(b)(4) provides that “ [s]electing a term other than the middle statutory term for either an offense or an enhancement” generally requires a statement of reasons.
On the count charging the shooting of Valladares, the court imposed the midterm of one year (one-third of the midterm of three years), a consecutive term of 16 months under section 12022.5, and a further consecutive term of one year under section 12022.7.
DISCUSSION
1. The Trial Court Did Not Err in Amending the Verdict
In a supplemental brief, appellant contends that the trial court did not have the power to amend the verdicts by substituting sections 12022.5 and 12022.7 for subdivisions (b), (c) and (d) of section 12022.53.
Appellant sought leave to file the supplemental brief after we requested counsel to brief the questions whether the jury’s verdicts under subdivisions (b), (c) and (d) of section 12022.53 supported the imposition of the upper term of 10 years and whether this comported with Blakely v. Washington and Cunningham v. California.
Although the trial court, in granting the motion, referred only to section 12022.5 (see fn. 5), both appellant and respondent assume in their briefs that the trial court intended to also amend the verdict with substituting section 12022.7, in addition to section 12022.5, for section 12022.53.
Respondent points out, correctly, that this issue was not raised in the trial court where defense counsel did not object to the amendment, nor did appellant raise this issue in the principal briefs on appeal. In the usual case, this would lead U.S. to conclude that the issue has been waived. In this case, however, the matter of the enhancements is directly relevant to the constitutional issues posed by Blakely v. Washington and Cunningham v. California and we therefore address and resolve this issue.
We begin with a comparison of the predicate facts set forth in the foregoing Penal Code sections. Subdivision (b) of section 12022.53 is to be invoked if someone “ personally uses a firearm” and subdivision (c) of section 12022.53 applies if a person “ personally and intentionally discharges a firearm.” This corresponds with subdivision (a) of section 12022.5 (any person who “ personally uses a firearm” ). Subdivision (d) of section 12022.53 applies if a person “ personally and intentionally discharges a firearm and proximately causes great bodily injury.” This corresponds to subdivision (a) of section 12022.7 (any person who “ personally inflicts great bodily injury . . . in the commission of a felony” ). The only difference between the latter two sections is that under section 12022.53 the great bodily injury is to be inflicted by a firearm, while there is no such requirement under subdivision (a) of section 12022.7. In this case, this difference is of no account since the personal use of a firearm was found by the jury under section 12022.53, subdivision (c).
Section 12022.53, on the one hand, and sections 12022.5 and 12022.7, on the other, differ in the prison terms they prescribe. The matter of terms, however, is for the court, and not the jury, to consider.
In deliberating on the enhancements charged under section 12022.53, the jury was concerned only with the factual predicates of these sections, i.e., whether appellant personally discharged a firearm and caused great bodily injuries. Thus, the jury received instructions on the personal use of a firearm (CALCRIM No. 3146), on personally and intentionally discharging a firearm (CALCRIM No. 3148) and on causing great bodily injury (CALCRIM No. 3150.) There is therefore no question that the jury deliberated on, and determined, these facts, which support the application of subdivision (a) of sections 12022.5 and 12022.7.
Appellant points to the fact that the jury returned its verdict on May 11, 2006, and that the trial court granted the district attorney’s motion to amend the verdict five months later, on October 2, 2006. Appellant contends that it is “ well-settled that once the jury has been discharged, the trial court may not amend or alter the verdict.”
Both parties cite People v. Trotter (1992) 7 Cal.App.4th 363, 369-370 (Trotter), where the information charged that the defendant “ personally used a firearm,” but the verdict only stated that the defendant was “ armed with a firearm.” The trial court allowed an amendment to correct the verdict, after the jury had been discharged, to reflect personal use of a firearm. The court of appeal concluded that this was nothing more than the correction of a clerical error and that the amendment was appropriate and lawful. (Id. at p.370.)
Appellant contends that in this case, in “ stark contrast with Trotter, the trial court modified and revised the substance of the verdict, which the Trotter Court recognized could not properly be accomplished under the guise of clerical error.” (Original italics.)
As the court in Trotter explained, the distinction between judicial error, which may not be corrected, and clerical error, which may be remedied, is to prevent the court from revising its deliberately exercised judicial discretion. (Trotter, supra, 7 Cal.App.4th at p. 370, citing inter alia In re Candelario (1970) 3 Cal.3d 702, 705.) In this case, the “ error” was neither clerical nor judicial. The “ error” arose because section 12022.53 does not apply to voluntary manslaughter; there was no error as long as the case went to the jury on the charge of attempted murder, which does apply to section 12022.53. Thus, we disagree with respondent that the “ error” in this case was clerical, as it was in Trotter.
Indeed, we do not think that Trotter is of any help in this case, which presents not an “ error,” as in Trotter, but a situation in which one verdict is inconsistent with another. Typically, an inconsistency arises when there is a guilty verdict on the substantive offense and a not guilty verdict on an enhancement, e.g., when there is a verdict of guilty on murder that was the result of gunshot wounds and a not guilty verdict on an enhancement alleging that the defendant was armed with a firearm. (People v. Federico (1981) 127 Cal.App.3d 20, 31.) Here the inconsistency was of a lesser type. It was a technical inconsistency in that reference to section 12022.53 was in error, upon a verdict of guilty for attempted voluntary manslaughter, but not otherwise. Since the inconsistency is in no sense substantive, as it is between a guilty and not guilty verdict, we do not think that the matter rises to the level of an error and, if it does, it can be corrected as it was in this case.
Under section 954 (an acquittal of one count is not deemed an acquittal of any other count) it was held in People v. Federico that the verdicts were not inconsistent. (See generally 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 74, pp. 108-109.)
We do not agree with appellant that changing the reference to sections 12022.5 and 12022.7 “ modifies” and “ revises” the verdict. The jury’s actual verdict on the enhancements was that appellant personally used a forearm and that he inflicted great bodily harm. This was the verdict before and after the court allowed the amendments that we address here.
Accordingly, the trial court did not err in granting the district attorney’s motion to amend the verdict.
2. The Jury’s Findings as to the Firearm Enhancements Support the Imposition of an Upper Term of 10 Years
We requested the parties to brief the questions whether the findings that appellant personally used a firearm, that he intentionally discharged that weapon and that he caused great bodily harm to both Rivera and Valladares support the imposition of an upper term and whether these jury findings satisfy the requirements of Blakely v. Washington and Cunningham v. California. Two days after the parties filed their responses, our Supreme Court handed down People v. Black (2007) 41 Cal.4th 799 (hereafter Black II).
The predicate of appellant’s contention that the imposition of the upper term of 10 years violates Blakely v. Washington and Cunningham v. California is that the fact(s) on which the upper term is predicated were found by the court and not the jury. In this case, however, it is the jury, and not the trial court, that found that appellant had intentionally discharged a firearm and that he had caused great bodily injury to Rivera and Valladares. This parallels the situation in the recent Black II decision, where the jury found that the defendant committed the offense of continuous sexual abuse by means of “ ‘ force, violence, duress, menace, and fear of immediate and unlawful bodily injury’ ” (Black II, supra, 41 Cal.4th at p. 806), which made the defendant ineligible for probation. The court in Black II found that the quoted jury finding also supported the imposition of an upper term and that this complied with Cunningham v. California.
Rule 4.421(a)(1) and (2) of the California Rules of Court provide that circumstances in aggravation are, among other things, causing great bodily injury and using a weapon at the time of the commission of the offense. “ Only a single aggravating factor is required to impose the upper term.” (People v. Osband (1996) 13 Cal.4th 622, 728.) It appears therefore that the jury’s findings in this case that appellant personally used a firearm and that he caused great bodily injury support the imposition of the upper term. Accordingly, the sentencing in this case complies with Blakely v. Washington and Cunningham v. California.
We do not agree with appellant’s contrary contentions.
First, it is incorrect to say that, in granting the motion to amend the verdict, the trial court struck the enhancements under section 12022.53. The important point is that the jury found the facts that supported the enhancements under section 12022.53; the court did not strike these findings of fact but rather changed the reference from section 12022.53 to sections 12022.5 and 12022.7.
Second, the enhancing facts that the jury found definitely make the offense of attempted voluntary manslaughter worse than it would ordinarily have been and therefore, contrary to appellant’s claim, qualify as enhancing factors. As noted, causing great bodily injury and using a weapon at the time of the commission of the offense are recognized by the Rules of Court as circumstances in aggravation. Even without reference to the Rules of Court, we find that in this case causing great bodily harm, standing alone, is an aggravating factor; in this case, such harm was caused to two individuals.
The trial court erred in not stating the reason(s) for imposing the upper term of 10 years. A remand to correct this error would serve no purpose. The record plainly establishes at least two findings by the jury that warrant the imposition of the upper term, i.e., great bodily injury and the intentional use of a firearm. It is notable that these were the first two grounds advanced by the district attorney in support of the imposition of an upper term. Since the jury’s findings on these two grounds are established without contradiction, it is manifest that the trial court relied on them in imposing the upper term.
In light of the foregoing, we conclude that imposition of the 10-year enhancement does not violate Blakely v. Washington and Cunningham v. California, and that it comports with the recent Black II decision.
3. The Trial Court Did Not Err in Imposing the Upper Term of 10 Years
Apart from Blakely v. Washington and Cunningham v. California, appellant contends that certain mitigating factors outweigh the aggravating factors and that, for this reason, the trial court erred in imposing the upper term. Specifically, appellant contends that he has no prior criminal record, and that he admitted early to wrongdoing and that these circumstances outweigh the facts that he engaged in violent conduct that indicated a measure or professionalism.
Sentencing courts have wide discretion in weighing aggravating and mitigating factors; the reviewing court must affirm unless there is a clear showing the sentence choice was arbitrary or irrational. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) There is no such showing here. Appellant shot two people at point blank range, causing serious injuries; it is fortunate that neither victim was killed. It is also apparent that there was planning and calculation on appellant’s part, and that the dangerous altercation that ensued was entirely of appellant’s making. The jury’s verdict finding appellant guilty of attempted voluntary manslaughter rather than murder gives implicit expression to mitigating factors in what, absent such factors, would be a clear case of attempted double murder. Thus, to the extent there were mitigating circumstances, the jury’s verdict gives expression to these circumstances.
The imposition of the upper term was neither arbitrary nor irrational but is rather supported by the evidence of two intentional shootings at a close and deadly range, causing great bodily injury in both instances.
4. The Minute Order of March 11, 2006, Must Be Corrected
The Attorney General concedes that the minute order of March 11, 2006, which purports to reflect the jury’s verdict, incorrectly states that appellant was found guilty of two counts of grand theft. This entry should be corrected to state that appellant was found not guilty of these charges.
DISPOSITION
The judgment is affirmed and the case is remanded with directions to correct the minute order of March 11, 2006.
We concur: COOPER, P. J., BOLAND, J.