Opinion
D074035
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS COVARRUBIAS, Defendant and Appellant.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1404661)
(Super. Ct. No. RIF1500159) APPEAL from a judgment of the Superior Court of Riverside, Mark E. Johnson, Judge. Affirmed and remanded for resentencing. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
Jose Luis Covarrubias appeals his jury-tried conviction on two counts of armed robbery (Pen. Code, §§ 211, 12022.53). In separate proceedings, the court found that Covarrubias had three prior prison terms within the meaning of section 667.5 and eight prior serious felony convictions within the meaning of section 667, subdivision (a), all of which were prior strikes (§ 667, subds. (c), (e)). The court sentenced Covarrubias to a determinate term of 60 years in prison, followed by an indeterminate term of 50 years to life.
Undesignated statutory references are to the Penal Code.
On appeal Covarrubias contends his conviction on count 2 should be reversed because (1) his constitutional right to due process was violated by the prosecution's failure to disclose and to retain a photo lineup, and (2) his trial attorney rendered ineffective assistance by failing to bring a Pitchess motion to seek impeachment material in the personnel file of the sheriff's deputy who lost or destroyed the photo lineup. We reject these contentions and affirm the judgment of conviction.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Covarrubias also contends the court committed sentencing error by (1) imposing consecutive five-year enhancements for all eight of his prior serious felony convictions, when only three of them were "brought and tried separately" under section 667, subdivision (a)(1); and (2) shorting him nine days of credit for time served. The Attorney General concedes, and we agree, that these assertions have merit.
Additionally, while this appeal was pending, the Legislature enacted section 12022.53, subdivision (h), which now gives the trial court discretion to strike or dismiss the 10-year enhancement for using a firearm that the court imposed on each count as part of Covarrubias's sentence. Again the Attorney General concedes, and we agree, that on remand, the trial court should exercise its discretion under section 12022.53, subdivision (h).
Because the trial court will be resentencing Covarrubias, we also explain that in imposing sentence the court erroneously (1) calculated the minimum term of the indeterminate sentence and (2) failed to exercise its discretion in considering whether to impose a consecutive one-year sentence for a prior prison term under section 667.5, subdivision (b).
In sum, we affirm the judgment of conviction and remand for resentencing.
FACTUAL BACKGROUND
A. Donut Store Robbery—Count 2
In September 2014 at about 9:30 p.m., a man entered a donut shop in Jurupa Valley, California. The man—Hispanic and about five feet seven inches tall with a medium build and bald—was wearing a bandana covering the lower part of his face from the mustache down.
J.D. and M.G. were working in the donut shop that night. When the man entered, M.G. was behind a counter, about 10 feet away. When J.D. approached, the man lifted his shirt to display a handgun tucked in his pants waistband. That move also revealed a portion of a distinctive tattoo on the man's abdomen. After J.D. handed over about $150, the man ran into the parking lot, where he entered the passenger side of a dark-colored van or sports utility vehicle. A surveillance camera inside the donut shop recorded the robbery and the jury saw the video.
During the robbery J.D. was approximately three to five feet away from the robber and had "a good look" at him. At trial J.D. identified Covarrubias as the robber. J.D. testified he was "sure" Covarrubias robbed him.
Although M.G. identified Covarrubias as the robber at the preliminary hearing, she was unable to identify him at trial.
B. Cell Phone Store Robbery—Count 1
About two weeks after the donut shop robbery, a Hispanic man about five feet seven inches tall and wearing a bandana on his face, robbed at gunpoint an employee working in a cellular telephone store in Jurupa Valley. The employee, who was unable to identify the robber, gave him about $60, and the man ran out of the store.
C. Investigation Leads to Covarrubias
Surveillance video outside the phone store showed the robber enter the passenger side of a waiting dark-colored Ford Expedition with no rear license plate. Riverside County Sheriff's Department Sergeant Dominic Schreiber examined surveillance video of that same area from two hours before the robbery. That video showed a Ford Expedition, with a rear license plate, behind the phone store. Schreiber determined that the Expedition was registered to S.M. S.M. has a distinctive tattoo on her chest, and pre-robbery surveillance video showed her outside the phone store and also at the Expedition holding a store flyer. Schreiber, a 20-year police veteran, testified that S.M. appeared to be preparing for the robbery.
About a week later, deputies located S.M.'s Expedition at her mother's house. S.M.'s mother is Covarrubias's sister. Covarrubias was with S.M. when she left the vehicle there. Police found Covarrubias's identification card inside the Expedition. Covarrubias and S.M. had recently been living together and have a close relationship. S.M. was unemployed, "short on money," behind on her car payments, and was afraid that the Expedition would be repossessed.
After the robberies, Covarrubias had S.M.'s name tattooed on his hand, along with the numbers 7 and 11 (S.M.'s birthday), tattooed on his ring finger.
While interviewing Covarrubias about the phone store robbery, Schreiber noticed that Covarrubias had a tattoo of the letter "T" under his lower lip, which may explain why the donut store robber wore the bandana covering his lower lip. Schreiber also noticed that Covarrubias had a tattoo on his abdomen like the one shown on the donut store surveillance video when the robber lifted his shirt.
D. The Photo Lineup
As a result of his investigation of the cell phone store robbery, Schreiber began investigating Covarrubias for the donut store robbery. At Schreiber's direction, a crime analyst prepared a six-pack photo lineup that included a photograph of Covarrubias (the lineup).
About six weeks after the donut store robbery, Schreiber showed M.G. the lineup. Initially, M.G. testified that she picked someone out of the lineup that looked "kind of similar" to the robber. However, after refreshing her memory with a police report, she testified that if she had seen the robber in the lineup she would have circled his picture, and she did not circle anyone's picture.
J.D. testified that about six weeks after the robbery police showed him the lineup together with instructions in Spanish. J.D. testified he picked out the "one that looked the most similar," circled that photograph, and wrote his name at the bottom of the page. J.D. testified that the photo he circled was not that of Covarrubias.
E. Motion to Dismiss
After M.G. and J.D. testified, Covarrubias's lawyer filed a motion to dismiss under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and California v. Trombetta (1984) 467 U.S. 479 (Trombetta). Counsel stated that Schreiber's crime report did not disclose that J.D. had identified someone other than Covarrubias in the lineup. Defense counsel told the court that he had made a discovery request for the lineup and was told it could not be located and had been destroyed. Covarrubias's lawyer stated, "[T]he officer lied in his report, filed a false and misleading report and destroyed evidence."
The court conducted a hearing outside the jury's presence. Schreiber testified that the deputy district attorney had asked him for the lineup more than eight months before trial, but Schreiber was unable to find it. Schreiber explained that he put the original lineups in a file containing other notes and investigative papers, and when he was transferred to a different sheriff's station in April 2015 all those files in his desk were destroyed. Schreiber testified that when, after J.D.'s trial testimony, the prosecutor asked him to look for the lineup again, he located an electronic copy on a thumb drive that "happened to have some of the files on the case." The thumb drive contained the same lineup he had shown to M.G. and J.D., but not the actual piece of paper he had given them. Thus, the court and counsel now had a copy of the lineup Schreiber had shown to M.G. and J.D.
Schreiber also testified that he provided the lineup to M.G. together with a standard admonition and that she did not identify anyone in the lineup. Schreiber, who does not speak Spanish, brought a Spanish-speaking deputy, Angel Gasparini, to show the lineup to J.D. Gasparini told Schreiber that J.D. could not identify the robber.
Schreiber testified that he did not think that a witness's inability to identify anyone in a photo lineup was relevant and, therefore, did not attach the lineups to his crime report. Schreiber testified that during his 20-year career, he has never submitted to the district attorney's office a photo lineup where no one was identified. Schreiber testified that M.G. looked at the lineup and "circled no one" and "same thing with [J.D.], he circled nobody."
The court stated it was inclined to deny the motion to dismiss, explaining, "What the jury is going to hear is that both of those witnesses were shown photographic lineups that included Mr. Covarrubias, and neither of them were able to pick him out of the lineup. . . . [Y]ou're asking me to dismiss the case based on the lack of—denial of exculpatory evidence, and what I'm hearing is that the jury is going to hear every last bit of that exculpatory evidence and they've looked at the lineups and couldn't pick anybody." Still outside the jury's presence, Gasparini testified that J.D. did not pick anyone in the lineup.
After Gasparini's testimony, the court tentatively ruled from the bench, stating, "I'm not seeing any destruction of exculpatory evidence in this case here. Both of the officers have testified . . . that [J.D.] in his lineup circled no one . . . ." The court deferred making a final ruling, however, until after the lawyers argued the motion the next day.
F. The Jury Hears Evidence About the Lineups
When the jury trial resumed, Schreiber authenticated, and the jury was shown, the lineup that Schreiber retrieved from his thumb drive. It was "a printout of the same six-pack photo array" that he showed to J.D. Covarrubias's photograph is the fourth in the array. Schreiber testified that he and Gasparini (who translated Spanish) presented the lineup to J.D., and J.D. did not identify anyone from the lineup and did not circle any pictures. Schreiber also testified that he showed the same lineup to M.G., who was also unable to identify anyone.
Schreiber told the jury that he put the lineups in a file folder in his desk and did not submit them with his police report because "neither victim identified anybody so I didn't submit it because I didn't think it was significant." Schreiber testified that in his 20-year career he had conducted about 50 photo lineups and he never attached the lineup to the police report where the witness did not identify anyone. Schreiber explained that the original lineup was destroyed when he transferred to a different sheriff's station.
Gasparini testified that Schreiber asked him to present the lineup to J.D. and translate for him. Gasparini testified that J.D. did not identify anyone in the lineup.
G. The Court Denies the Motion to Dismiss
The next day, the court resolved the conflict in the testimony by finding that J.D. did not identify anyone in the lineup. The court stated, "I don't believe [J.D.] circled a name and initialed it a couple years ago, but I think he thinks he did that. You know, in watching Gasparini and also Schreiber, I don't think he did it. I think he is mistaken." The court further explained, "So what I've got is . . . a lineup that was blank back then, and we've got a copy of it. . . . I'm not finding any Brady material." "I also think that this evidence has been very much fleshed out in front of the jury where they know everything here. I don't think that there's anything that has not been presented to them." The court concluded, "I'm not seeing the exculpatory nature of this evidence. I'm not seeing a denial of due process. I'm not seeing a denial of a fair trial." The court denied the motion to dismiss.
H. Other Evidence
An audio/video technician employed by the district attorney's office testified that he was unable to "conclusively match" the tattoo on Covarrubias's abdomen to that shown in the donut store robbery surveillance video, but was also unable to eliminate the tattoo as being the same tattoo.
I. Defense Case
Covarrubias did not testify. A retired peace officer formerly employed by the San Bernardino County Sheriff's Department testified that there was no match between Covarrubias's tattoo and that shown on the surveillance video. Without objection, that officer also testified that "the police[] have a duty to report all exculpatory evidence" and if a witness does not identify anyone in a photo lineup, "the People have an obligation to present that information to the [d]efense so they know."
J. Verdicts
The jury found Covarrubias guilty on both robbery counts and found true that in committing each offense Covarrubias personally used a firearm.
DISCUSSION
I. THE COURT CORRECTLY DENIED THE MOTION TO DISMISS
A. Covarrubias's Contentions
Asserting that J.D. "identified someone other than the defendant as the robber," Covarrubias contends his conviction on count 2 (donut store robbery) should be reversed because police failed to preserve and provide counsel with the photo lineup. In making this assertion, Covarrubias relies upon constitutional principles in Brady, supra, 373 U.S. 83 and Trombetta, supra, 467 U.S. 479.
B. Legal Principles
Under Brady, supra, 373 U.S. 83, "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Id. at p. 87.) In this context, evidence is material "'if there is a reasonable probability its disclosure would have altered the trial result.'" (People v. Maciel (2013) 57 Cal.4th 482, 551.) This requires "'"more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction 'more likely' [citation], or that using the suppressed evidence to discredit a witness's testimony 'might have changed the outcome of the trial' [citation]. A defendant instead 'must show a "reasonable probability of a different result."'"'" (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 52.)
"Closely related to the Brady rule requiring the prosecution to disclose material evidence favorable to the defense is the prosecution's obligation to retain evidence. With respect to retention, however, the prosecution's obligation is narrower. Its failure to retain evidence violates due process only when that evidence 'might be expected to play a significant role in the suspect's defense,' and has 'exculpatory value [that is] apparent before [it is] destroyed.' [Citation.] In that regard, the mere 'possibility' that information in the prosecution's possession may ultimately prove exculpatory 'is not enough to satisfy the standard of constitutional materiality.' [Citation]. And whereas under Brady, supra, 373 U.S. 83, the good or bad faith of the prosecution is irrelevant when it fails to disclose to the defendant material exculpatory evidence [citation], a different standard applies when the prosecution fails to retain evidence that is potentially useful to the defense. In the latter situation, there is no due process violation unless the accused can show bad faith by the government." (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8, italics omitted.)
C. The Standard of Review
We review the trial court's denial of Covarrubias's motion for substantial evidence. (People v. Duff (2014) 58 Cal.4th 527, 549 [Trombetta motion].)
D. Analysis
Covarrubias's main contention hinges on J.D.'s trial testimony that he identified someone other than Covarrubias as the donut store robber. Covarrubias asserts, "[A] lineup containing [Covarrubias's] picture, shown to [J.D.] six weeks after the . . . robbery—a victim who had seen the robber face to face—and from which [J.D.] identified someone else as the robber instead of [Covarrubias] . . . is surely exculpatory and should have been disclosed, not destroyed."
However, Schreiber and Gasparini contradicted J.D. on this point. Both deputies testified that J.D. did not identify anyone in the lineup. In resolving this conflicting evidence, the trial court observed and listened to all three of these witnesses, and the court determined that the deputies' testimony on this point was more credible than J.D.'s.
Under the applicable standard of review, that factual determination is binding on appeal. Accordingly, we reject as being factually unsupported Covarrubias's assertion that law enforcement suppressed or destroyed a photo lineup in which J.D. identified someone other than Covarrubias. Instead, we consider Covarrubias's alternative argument that the missing lineup was exculpatory—and should have been preserved and disclosed—because J.D. identified no one from a lineup containing Covarrubias's picture.
Although not exactly on point, in People v. Yeoman (2003) 31 Cal.4th 93 the California Supreme Court considered the effect of failing to preserve a photo lineup. In that case, the victim failed to identify the defendant in a photo lineup. (Id. at p. 124.) However, she subsequently identified him in a later photo lineup. (Ibid.) Police lost the first photo lineup, but introduced into evidence a black and white photocopy of it. (Id. at p. 126.) On appeal, the Supreme Court rejected the defendant's assertion this was error because despite the loss of the original lineup, the defense successfully proved that the victim failed to identify the defendant in that lineup. (Ibid.) The Supreme Court stated, "'"[N]ot every suppression of evidence requires dismissal of charges. . . . The remedies to be applied need be only those required to assure the defendant a fair trial."'" (Ibid.)
Similarly here, the jury learned through Schreiber and Gasparini's testimony that J.D. failed to identify Covarrubias in a photo lineup shown about six weeks after the robbery. The jury was also shown a copy of the lineup, which includes the photo of Covarrubias that neither M.G. nor J.D. identified. From watching the donut store surveillance video, the jury could assess J.D.'s ability to see Covarrubias, the lighting, and the amount of time J.D. had to make his observations. The lost or destroyed lineup did not have any additional evidentiary value beyond J.D.'s failure to identify Covarrubias in it—and that point was fully explored at trial.
The parties have not cited, and our own research has not located, any published California caselaw precisely on point; however, several appellate courts in other states have rejected due process claims arising from law enforcement's failure to preserve a photo lineup in which the witness did not select the defendant's photograph. Although these decisions are not binding, they may be considered for their persuasive value. (See Martinez v. Enterprise Rent-A-Car Co. (2004) 119 Cal.App.4th 46, 55.)
For example, in Maresca v. State (Nev. 1987) 748 P.2d 3, the court determined that a missing lineup had no exculpatory value because the jury saw the picture of the defendant that was used in the lineup and heard testimony that the witness was not able to identify the defendant from the lineup. (Id. at p. 5.) Similarly, the appellate court in Cuesta v. State (Tex.Ct.App. 1988) 763 S.W.2d 547 concluded that the failure to disclose an unsuccessful lineup did not have any effect on the outcome of the trial because defense counsel cross-examined the victim and the investigating detective about the victim's failure to identify the defendant from the photo lineup. (Id. at p. 554.) Likewise, the court in People v. Ramirez (N.Y. 1996) 224 A.D.2d 455 reasoned that "the defendant failed to adequately show how the photo array, which was destroyed by the arresting officer, would constitute exculpatory material. The exculpatory value that would have been derived from the photo array would be no more than the complainant's failure to identify the defendant, an issue that was fully explored by the defense counsel in his cross-examination of the arresting officer." (Id. at p. 456.)
Consistent with these cases, here the court correctly determined that the missing photo lineup was not material or exculpatory. While J.D. and M.G.'s failure to identify Covarrubias from the lineup is potentially exculpatory, that fact was before the jury through Schreiber's and Gasparini's testimony and a copy of the lineup—which was received in evidence. Accordingly, the People's failure to disclose and/or produce the original photo lineup was not material and had no effect on the outcome of Covarrubias's trial. Whether considered under Brady, supra, 373 U.S. 83 or Trombetta, supra, 467 U.S. 479, Covarrubias's challenge fails given the absence of any material exculpatory value of the missing evidence and the court's finding that there was no bad faith by the prosecution in handling it. (Trombetta, supra, 467 U.S. at pp. 488-489.)
The court stated, "I'm definitely finding no intentional destruction in this case here."
Finally, even assuming for the sake of argument that error occurred, we would not find it to be reversible on this record. Although Covarrubias attempted to conceal his facial features by wearing a bandana during the robbery, the bandana was below his nose and nearly falling off. J.D., who was no more than five feet away from Covarrubias during the robbery, testified he had "a good look" at Covarrubias during the crime and was "sure" that Covarrubias was the robber.
"[Defense counsel]: You pointed to the man on the far end of the table . . . and you indicated that that's the man who robbed you?
"[J.D.]: Yes.
"[Defense counsel]: What specifically makes you think that that's the man who robbed you?
"[J.D.]: Because I remember him well. It's hard to forget someone that threatens you with a weapon.
"[Defense counsel]: Okay. Fair enough. I'll buy that."
Moreover, the jury watched surveillance video of the donut store robbery. Although the video is grainy, the robber's face is seen with a bandana positioned below his mustache, revealing his eyes and nose. The jury also saw exhibit 11, which has two side-by side photographs of Covarrubias. One is his booking photograph, showing his large "SGV" belly tattoo. The other is a screen shot from the surveillance video taken from the donut store robbery, where the robber lifted his shirt to display the handgun tucked in his waistband—and that shows what appears to be a portion of the "S" in that tattoo. On this record, any error regarding the prosecution's failure to preserve or prevent destruction of the photo lineup is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
II. FAILURE TO FILE A PITCHESS MOTION
A. Additional Background
Before trial, the prosecutor told Covarrubias's attorney that Schreiber had previously been charged with and acquitted of conspiracy to take a bribe. With that information, Covarrubias's attorney filed a Pitchess motion. That motion had nothing to do with any photo lineup. J.D. had not testified yet. Rather, based on the bribery charge, Covarrubias's attorney sought an order directing the Riverside County Sheriff's Department to disclose information from Schreiber's personnel file regarding, among other things, "[l]ack of credibility" and "[d]estruction of [e]vidence." The court denied the motion.
A Pitchess motion is a motion for discovery of a peace officer's confidential personnel records. (Pitchess, supra, 11 Cal.3d 531.)
Covarrubias does not challenge the denial of his Pitchess motion. Rather, he contends that when J.D. testified that he had identified someone other than Covarrubias in the lineup, Schreiber's credibility became a "central issue." Covarrubias asserts that his trial attorney "should have renewed the Pitchess motion because evidence of misconduct by Schreiber would have greatly assisted counsel's examination and impeachment of Schreiber at the Brady/Trombetta hearing, and at trial." Covarrubias contends he was denied his constitutional right to effective assistance of counsel because his attorney did not renew the Pitchess motion at that time.
B. Analysis
To prevail on a claim of ineffective assistance of counsel, a defendant "'"must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice."'" (People v. Maury (2003) 30 Cal.4th 342, 389, overruled on other grounds in Barnett v. Superior Court (2010) 50 Cal.4th 890, 901.) "[P]rejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (Maury, at p. 389.)
On this record, there is no way of knowing whether Schreiber's personnel records actually contained any relevant and admissible evidence. Accordingly, Covarrubias cannot show there was a reasonable probability that filing a Pitchess motion would have had any effect on the outcome.
Covarrubias argues that, precisely because we have no way of knowing whether discovery of Schreiber's personnel records could have changed the outcome, we should conditionally reverse and remand with directions to the trial court to review those records in camera and to determine whether their nondisclosure was prejudicial. This is an appropriate appellate remedy where the trial court has erred by denying a meritorious Pitchess motion. (See People v. Gaines (2009) 46 Cal.4th 172, 180.) However, Covarrubias is not claiming the trial court erred by denying a Pitchess motion; rather, he is claiming that his trial attorney rendered ineffective assistance by failing to file a Pitchess motion. Covarrubias has not cited, and our own research has not found any authority for applying, Gaines in this context. Unless Covarrubias can show prejudice, he cannot show ineffective assistance of counsel. Hence, he cannot show that he is entitled to any remedy on direct appeal. Covarrubias has a remedy, but it is not by way of appeal. An appropriate way to proceed on this issue would be to file a petition for a writ of habeas corpus. (See In re Avena (1996) 12 Cal.4th 694, 730 [noting that discovery may be available in a habeas corpus proceeding where an order to show cause has issued]; see also In re Scott (2003) 29 Cal.4th 783, 814 ["[w]e have indicated that discovery is available once we have issued an order to show cause"].)
IV. SENTENCING ERRORS
A. Additional Background
The court sentenced Covarrubias to a determinate term of 60 years in prison followed by a 50-year-to-life indeterminate term as follows:
1. On count 1, 25 years to life plus 10 years consecutively for using a firearm under section 12022.53, subdivision (b).
2. On count 2, 25 years to life plus 10 years consecutively for using a firearm under section 12022.53, subdivision (b).
3. Consecutive five-year sentences for each of Covarrubias's eight serious felony prior convictions under section 667, subdivision (a), for a total of 40 years.
B. The Trial Court Now Has Discretion to Strike or Dismiss the Firearm Enhancement
Section 12022.53, subdivision (a)(4) and (b) provides a 10-year enhancement for personally using a firearm in committing a robbery. Here, the court imposed this enhancement on both count 1 and count 2, adding 20 years to Covarrubias's determinate term.
When sentencing Covarrubias in 2016, the court could not strike these enhancements. (§ 12022.53, former subd. (h), added by Stats. 2010, ch. 711, § 5, repealed by Stats. 2017, ch. 682, §2, eff. Jan 1, 2018.) However, effective January 1, 2018, section 12022.53, subdivision (h) provides: "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."
Covarrubias's case was not yet final when this amendment to section 12022.53 became effective. Accordingly, because section 12022.53, subdivision (h) now gives the trial court authority to lower Covarrubias's sentence, the matter is remanded to the trial court to exercise its discretion in determining whether to strike one or both of the firearm enhancements. (People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507.)
C. Five of the Eight Serious Felony Enhancements Are Unauthorized
Separate five-year enhancements may be imposed for prior serious felony convictions only for "charges brought and tried separately." (§ 667, subd. (a)(1).) Thus, prior convictions arising from the same proceeding cannot be used as separate serious felony enhancements. (People v. Frausto (2009) 180 Cal.App.4th 890, 903.)
Here, Covarrubias contends, and the Attorney General concedes, that the court erred in imposing all eight of his serious felony enhancements because only three of the eight were brought and tried separately. We agree; the eight serious felony convictions occurred in three separate cases.
Accordingly, the court exceeded its authority when imposing 40 years (five years each) for all eight of Covarrubias's prior serious-felony enhancements when calculating his determinate sentence. In resentencing Covarrubias on remand, the court may not impose more than 15 years under section 667, subdivision (a)(1).
D. Covarrubias is Entitled to Nine Days Additional Credit for Presentencing Custody
The court granted Covarrubias 901 days of custody credit, consisting of 783 actual days plus 118 days of conduct credit. Covarrubias contends, and the Attorney General concedes, that the court should have granted him a total of 910 days of credit because Covarrubias was arrested on October 22, 2014, and in custody through his sentencing hearing on December 21, 2016—a span of 792 days, not 783. On remand, the trial court is directed to give Covarrubias 792 actual days and 118 days of conduct credit, for a total of 910 days.
Covarrubias concedes that the 118 days of conduct credit is unaffected by this error.
E. Error in Staying Rather Than Imposing One Prior Prison Enhancement
In addition to the sentencing errors that Covarrubias raises, the Attorney General contends the court erred by staying one of the prior prison enhancements. As explained post, we agree.
Section 667.5, subdivision (b) provides for a one-year enhancement for certain prior prison terms. Here, the court found that Covarrubias had three prison priors within the meaning of this statute from the following convictions: (1) a 1992 conviction for assault with a deadly weapon; (2) a 1997 conviction for robbery and (3) a 2009 conviction for a drug offense. The court imposed—but stayed—these one-year enhancements, finding that they concerned the same convictions that supported the five-year prior serious felony conviction enhancements under section 667, subdivision (a).
The Attorney General contends that the court correctly stayed two of the prison priors, but erred in staying the one-year enhancement arising from the 2009 drug conviction because that conviction was not for a serious felony—and thus was not used as an enhancement under section 667, subdivision (a). In his reply, Covarrubias agrees, but contends that although the court was not required to stay that one-year enhancement, it had discretion to do so. (See People v. Bradley (1998) 64 Cal.App.4th 386, 391 [discretion to strike prior prison term enhancement].) We agree. On remand, the court should exercise its discretion in determining whether to impose or strike the one-year enhancement under section 667.5, subdivision (b) arising from Covarrubias's 2009 drug conviction.
In his reply brief, Covarrubias acknowledges that on remand the trial court may consider the "entire sentencing scheme." (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258.)
F. Error in Calculating the Indeterminate Term
Calculating Covarrubias's sentence under the Three Strikes law begins with determining the minimum term of the indeterminate life sentence. That term is the greatest of three time periods. Option 1 is "'[t]hree times the term otherwise provided as punishment' for the felony offense," excluding enhancements. (People v. Williams (2004) 34 Cal.4th 397, 403.) Option 2 is a term of 25 years. Option 3 is a traditional sentence without reference to the Three Strikes law, including enhancements. (Ibid.)
Here, in sentencing Covarrubias, the trial court determined that option 2—25 years—was the greatest of the three options. However, the Attorney General contends that this was not the greatest of the three minimum indeterminate terms. For example, the traditional sentence for second degree robbery is two, three, or five years. (§ 213, subd. (a)(2).) The Attorney General asserts that if the trial court does not strike the firearm enhancements and also imposes the one-year prior prison term enhancement, the minimum term of Covarrubias's life sentence for each of the two robbery counts under option three would exceed 25 years. For example, even if the court selected the lower term for robbery, under option 3 the minimum term for each of count 1 and count 2 would be 28 years: two years for robbery (§ 213, subd. (a)(2)) plus 10 years for the gun enhancement (§ 12022.53, subd. (b)) plus 15 years for the three prior serious felony convictions brought and tried separately (§ 667, subd. (a)(1)) plus one year for the prior prison term (§667.5, subd. (b)) equals 28. That number could go as high as 31 years if the court chose the upper five-year term for the robbery. Thus, instead of sentencing Covarrubias to an indeterminate term of 50 years to life, the trial court could have sentenced him to a total indeterminate term of 62 years to life. In resentencing Covarrubias, the court should recalculate the minimum term of the indeterminate sentence.
Under option 3, the trial court is permitted to select between the lower, middle, and upper terms of imprisonment, and should state reasons if the upper or lower term is selected. (1 Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2017) § 20:39, pp. 20-64.14 to 20.64.15.)
This calculation is only an example. As Covarrubias correctly states, whether option 3 will yield the greatest minimum life term depends upon whether the court strikes the gun enhancements under section 12022.53, subdivision (h). We express no opinion on how the court should exercise that discretion. --------
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded for resentencing. The trial court is directed to: (1) exercise its discretion with respect to the firearm enhancements under Penal Code section 12022.53, subdivision (h); (2) determine that only three of Covarrubias's prior serious felony convictions are enhancements under Penal Code section 667, subdivision (a)(1); (3) credit Covarrubias with an additional nine days of custody credit; (4) exercise its discretion under Penal Code section 667.5, subdivision (b) with respect to Covarrubias's prior prison term arising from his 2009 drug conviction; and (5) calculate the minimum term of the indeterminate life sentence in a manner consistent with this opinion.
NARES, Acting P. J. WE CONCUR: HALLER, J. GUERRERO, J.