Opinion
E045944
7-15-2009
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS DOMINGUEZ, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
I. INTRODUCTION
Defendant Jose Luis Dominguez appeals from a judgment of conviction for which he was sentenced to 24 years 4 months in prison. His sentence was based in part on an August 2002 prior strike conviction for making criminal threats against his ex-wife, and several current felony convictions and enhancements he suffered as a result of an October 25, 2003, shooting outside the El Tarasco restaurant in Perris and his subsequent arrest on November 10, 2003.
Defendant claims the matter must be remanded for a Romero hearing on his 2002 prior strike conviction and for resentencing. He argues the trial court prejudicially erred (1) in refusing his "invitation" to dismiss his 2002 prior strike on the ground it had no discretion to consider the matter because defendant did not file a 10-day noticed Romero motion, and (2) in failing to state its reasons for imposing consecutive terms on his current convictions in counts 5 and 6 for assault with a semiautomatic handgun on two separate victims.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Alternatively, defendant claims his defense counsel was ineffective in failing to file and serve a timely, noticed Romero motion, and in failing to ask the court to state its reasons for imposing the consecutive terms. He argues there was a reasonable probability that, but for the courts or his counsels errors, he would have realized a more favorable result at sentencing.
We agree the matter must be remanded for resentencing. The court mistakenly believed it had no jurisdiction to consider a Romero motion because defendant did not file and serve the motion at least 10 days prior to the sentencing hearing. In addition, it appears that the court was inclined to dismiss the strike prior had it realized it had jurisdiction to do so. In any event, we express no opinion whether it would be an abuse of discretion to dismiss or not to dismiss the strike prior.
In addition, the court failed to state its reasons for imposing consecutive terms on counts 5 and 6, and it is reasonably probable the court would have imposed concurrent terms on counts 5 and 6 had defense counsel requested a statement of reasons or brought to the courts attention the factors set forth in rule 4.425(a) of the California Rules of Court. Although the crimes committed in counts 5 and 6 involved separate victims, they were not predominantly independent of each other, they did not involve separate acts of violence, and they were not committed on different occasions. (Rule 4.425(a).)
All further references to rules are to the California Rules of Court.
II. BACKGROUND
A. Facts Underlying Defendants Current Convictions
The evidence presented at trial shows the following:
1. The October 25, 2003, Shooting
In October 2003, Miguel Lara was a friend of defendants ex-wife, Blanca Guerra. Lara and Guerra occasionally went out together as friends. Defendant did not want Lara seeing Guerra and called Lara numerous times, telling him to stay away from Guerra and threatening to beat up him up.
On October 25, 2003, Lara was at the El Tarasco restaurant in Perris with two of his friends from work, eating and drinking beer. After Lara and the two men he was with had drank around 18 beers between the three of them, they called another friend, Garcia, to pick them up so they would not have to drive.
After Garcia arrived, Lara and his friends got up to pay their bill. At that point, defendant walked into the restaurant with a girl. Laras friends told him not to say anything to defendant, but Lara was very angry when he saw defendant. After defendant stepped outside to use his cell phone, Lara walked outside and confronted him, asking him what his problem was. Upon seeing Lara, defendant appeared nervous and put his telephone down. Defendant stepped back, tried to begin a "friends conversation" with Lara, and was apparently trying to avoid the confrontation. Lara, however, was yelling at defendant about his threatening telephone calls.
At that point, defendant "took a couple steps back" and said, "You know what? Dont even get closer to me." Defendant put his hand under his shirt as if he had a gun, and said, "Im not dumb enough to fight you." Lara told defendant that if he had a gun and was going to pull it he would have to use it. Defendant told Lara to step back and again told him not to get any closer, but Lara took two steps toward defendant. Defendant then pulled out a black gun, pointed it at Lara, and again told him not to get any closer. At that point, one of Laras friends moved next to Lara. Lara did not back away, but moved toward defendant and told him to put the gun away.
Lara was six inches taller than defendant and around the same weight.
Defendant tried to cock the gun, and an unexpended bullet flew out of it. Defendant then fired the gun once while pointing it toward the ground. A bullet ricocheted off the ground and struck the left leg of a bystander, Sandra Gomez Ulloa (Sandra), seriously injuring her. At that point, defendant ran around the corner and left the area. Lara also left the area, but returned around an hour later and gave a statement to police.
Lara testified that after defendant fired once at the ground, he "raised the gun again and took another two shots." All of the other witnesses, however, testified that defendant fired the gun only once, and the physical evidence was consistent with these witnesses testimony. At sentencing, the trial court and the prosecutor agreed the evidence showed defendant fired only one shot.
Around 15 minutes after the shooting, defendant called Lara and was laughing about the shooting incident. He told Lara he did not hit him because he was nervous and Lara was too close. Defendant also laughed when Lara told him he had shot a woman.
Officer Darren Mannion was one of the officers who arrived at the restaurant in response to the shooting. Officer Mannion collected an unexpended bullet and an expended cartridge from the ground near where defendant had been standing. A bullet was also later collected from Sandras body. The bullet appeared to have hit a hard surface prior to hitting Sandra, consistent with having ricocheted off the ground.
2. Defendants November 10, 2003, Arrest
On November 10, 2003, Officer Tony Hoxmeier was driving a marked police car on his way to execute a search warrant at defendants house in Moreno Valley when he saw defendant driving his car in the opposite direction. Officer Hoxmeier made a U-turn and followed defendants car. After backup arrived, Officer Hoxmeier took defendant into custody.
Officer Hoxmeier found a black semiautomatic handgun underneath the drivers seat of defendants car. The unexpended bullet recovered from the scene of the shooting and the expended bullet recovered from Sandras body were compared to bullets test fired from the gun found in defendants car. It was determined that the expended bullet could have been fired from the gun, and it appeared that the unexpended bullet had been spun through the gun.
Officer Herman Coffey was at the scene of defendants arrest, and noticed that defendant appeared to be under the influence of a controlled substance. Defendant was later determined to be under the influence of methamphetamine. Methamphetamine was found on a plate in defendants house.
B. Defendants Current Charges and Convictions
Based on the shooting and the circumstances surrounding his arrest, defendant was charged in an information with the premeditated attempted murders of Sandra and Lara (counts 1 & 2, respectively), attempted aggravated mayhem upon Lara (count 3), mayhem upon Sandra (count 4), assault with a semiautomatic firearm upon Sandra and Lara (counts 5 & 6, respectively), being a felon in possession of a firearm (count 7), being under the influence of a controlled substance while armed with a loaded firearm (count 8), possession of methamphetamine for sale (count 9), and possession of methamphetamine (count 10).
An additional charge of driving on a suspended license was dismissed.
It was further alleged that defendant personally discharged a firearm causing great bodily injury in counts 1 and 4, personally inflicted great bodily injury in counts 1, 4, and 5, personally discharged a firearm in counts 2 and 3, personally used a firearm in counts 5 and 6, and had one prior strike/prior serious felony conviction, namely, a 2002 conviction for making criminal threats against his ex-wife, Guerra.
Following the close of the evidence, the trial court dismissed counts 1, 3, and 4 based on insufficient evidence. (Pen. Code, § 1118.1.) The jury found defendant guilty of the lesser included offense of the attempted voluntary manslaughter of Lara in count 2, and guilty as charged of assaulting Sandra and Lara with an automatic firearm in counts 5 and 6, respectively. The jury found that defendant personally inflicted great bodily injury in count 5 and personally used a firearm in counts 5 and 6.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury also found defendant guilty of the firearm and drug possession charges in counts 7, 8, and 10. The jury was unable to reach a verdict on the possession for sale charge in count 9, however, and a mistrial was declared on that count. Defendant admitted that on August 5, 2002, he was convicted of making criminal threats against his ex-wife, Guerra. The conviction qualified as a prior strike and prior serious felony conviction.
C. The Sentencing Hearing and Sentence
On April 18, 2008, the date scheduled for sentencing, defendant filed a sentencing memorandum in which he requested that his 2002 prior strike/prior serious felony conviction be stricken in the interests of justice. He noted he had served 270 days in local custody for the conviction, the longest jail sentence he had ever served, and had never before been sentenced to prison. Thus, he argued, the probation departments recommendation that he be sentenced to 41 years in prison for his current 2003 offenses was "comparatively excessive."
The trial court acknowledged the sentencing memorandum and the Romero motion within it, and said the motion was beyond the courts jurisdiction to consider because it had not been timely filed and served. The court said: "The Romero motion is beyond my jurisdiction to consider. It was not properly noticed. No time shortening application was made to the court. The district attorney was given no notice at all. And I am unable to consider the Romero motion even under such equitable circumstances that may exist." (Italics added.) The court then said it was "left with the sentencing memorandum itself" and those parts it could "take cognizance of," namely, defendants background, the circumstances of his current convictions, and the probation officers sentencing recommendation.
Earlier, the prosecutor objected to the Romero motion as not having been timely filed and served 10 days prior to the sentencing hearing.
Defendant addressed the court and expressed remorse for his current offenses. He told the court he was sorry for what had happened, apologized to the victims, and asked the court to allow him a chance to be a father to his son, age four, who was born after defendant was taken into custody in November 2003. Defendants girlfriend and mother of his son, Ms. Ramirez, also addressed the court. She said she had never known defendant to be "an actual violent person," he had never been violent with her, and he had always been very helpful to her, her family, and his friends. She believed he committed his current offenses because he was using drugs at the time. She was not in contact with him at the time he committed his current offenses, but had consistently stayed in contact with him since his incarceration. She described herself and defendant as "really good friends," and said she and defendant would remain good friends because of their son.
Defendants probation report showed he was 30 years old when he committed his current offenses in 2003. He was born in Mexico in 1973 and came to the United States in 1989. In addition to his four-year-old son, he has one other child, age 11. And, in addition to serving 270 days in jail for his August 5, 2002, felony criminal threats conviction, he was placed on three years formal probation for the offense and was on probation at the time he committed his current offenses in 2003.
Defendants other criminal history was not particularly extensive. On the same date he suffered his August 5, 2002, criminal threats conviction (Pen. Code, § 422), he was convicted of two other crimes, namely, felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor driving under the influence (Veh. Code, § 23152, subd. (b)). For these crimes, he was sentenced to three years formal probation and jail terms. These sentences apparently ran concurrent to his 270-day jail sentence and three years formal probation for his criminal threats conviction. His only other conviction was in 1997 for obstructing a police officer in the performance of his duties, a misdemeanor (Pen. Code, § 148, subd. (a)), for which he was sentenced to 10 days in jail and three years summary probation.
Defense counsel argued there were circumstances in mitigation, mainly because Lara provoked the shooting and defendant made some effort to avoid the confrontation. The court observed that the "most troubling aspect" of the case was that defendant, who was a drug user and on felony probation in 2003, "saw the need to walk around in public places . . . armed with a loaded firearm[.]" The prosecutor agreed with the courts additional observation that, despite Laras provocation, defendant was armed with a loaded firearm and made the decision to pull it out and shoot at Lara.
The court and the prosecutor also agreed that, despite Laras trial testimony that defendant fired three shots, "the best interpretation of the evidence" was that defendant fired only one shot after the "unused round" fell out of the gun. It was also agreed that the bullet that struck Sandra in her left leg and pelvis had ricocheted off the ground. The court expressed concern, however, that defendant had a loaded round in the chamber of the gun. The court said, "more prudent handlers of these weapons dont keep a loaded round in the chamber, even if they have [a] safety on." The prosecutor next observed, and the court agreed, that section 654 did not prohibit the imposition of separate terms on defendants two section 245, subdivision (b) convictions against Sandra and Lara, respectively, in counts 5 and 6, because the convictions involved separate victims.
The court focused upon whether the circumstances warranted imposition of the upper or middle terms on counts 5 and 6. The court concluded that the middle term was appropriate on all convictions because there was "significant provocation" by Lara. In convicting defendant of the lesser included offense of attempted voluntary manslaughter against Lara in count 2, the court indicated it agreed with the jurys apparent conclusion that defendant reasonably, though imperfectly, believed he needed to defend himself against Lara and his friends in what amounted to "a fairly hostile exchange."
Still, the court said defendants crimes were dangerous and involved extreme violence, and defendant had been "mouthy and violent in the past," as evidenced by his 2002 criminal threats conviction. The court further observed that defendants performance on probation "wasnt bad" except for the shooting incident, which was "bad enough to eclipse [his] good behavior," and his current crimes were more serious and violent than his criminal threats conviction. The court concluded that, given Laras provocation and the "rather significant and severe prison term" defendant was facing "anyway," defendant was entitled to the "benefit of whatever doubt there may be."
The court sentenced defendant to an aggregate term of 24 years 4 months. The section 245, subdivision (b) conviction involving the bystander victim, Sandra, in count 5 was deemed the principal count. On count 5, the court imposed the middle term of six years, doubled to 12 for the prior strike conviction, plus four years for the personal use enhancement and three years for the great bodily injury enhancement on count 5, for a total of 19 years on count 5. The court further imposed a consecutive term of five years four months on count 6, consisting of two years (one-third the middle term of six years), doubled to four years, plus 16 months (one-third the middle term of four years). The court imposed concurrent middle terms on all other counts, namely, counts 2, 7, 8, and 10, and all enhancements on those counts. The court further ruled that sentence on the 2002 "nickel prior," or prior serious felony conviction, would be "stayed or stricken as the law requires." (§ 667, subd. (a).)
Before imposing the five-year four-month consecutive sentence on count 6, the court was about to impose an identical term of five years four months on the voluntary manslaughter conviction in count 2, together with section 12022.5, subdivision (a) personal use enhancement on count 2. The prosecutor pointed out, however, that a consecutive term should be imposed on count 6, not count 2, because count 6 carried a lesser sentence, and the sentence on count 2 should be stayed pursuant to section 654. The court agreed, and proceeded to impose the consecutive term on count 6 and the personal use enhancement on count 6.
The court struck the section 12022.53, subdivision (b) discharge enhancement on the attempted voluntary manslaughter conviction in count 2 as "inappropriate" or not in accordance with section 12022.53, subdivision (a).
III. DISCUSSION
A. Remand is Necessary to Consider Striking Defendants 2002 Strike Prior
Defendant first claims the matter must be remanded to the trial court so that it may consider striking his 2002 criminal threats conviction or prior strike conviction in the interest of justice. We agree.
The court expressly stated it had no jurisdiction to consider dismissing the strike prior for purposes of sentencing, because defendant did not file a 10-day noticed Romero motion, but instead requested the court to dismiss the strike prior in his sentencing memorandum which he filed on the date set for sentencing. The court was incorrect. The court did in fact have jurisdiction to consider dismissing the strike prior.
As defendant argues, a defendant is neither required nor entitled to file a 10-day noticed Romero motion. Instead, a court may consider striking a strike prior "on its own motion" or pursuant to the application of the prosecuting attorney, in the interests of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 508-518.) A defendant may only raise the issue by inviting the court to exercise its discretion to dismiss a strike prior, as defendant did by raising the matter in his sentencing memorandum. The court then decides whether to dismiss the strike prior on its own motion. (People v. Carmony (2004) 33 Cal.4th 367, 375.)
The courts comments also indicate it may have exercised its discretion to dismiss the strike prior had it realized it had jurisdiction to do so. The court observed it had no jurisdiction to consider striking the strike prior "even under such equitable circumstances that may exist." (Italics added.) And, in discussing whether to impose upper or middle terms, the court said defendant was entitled to the "benefit of whatever doubt there may be" in view of Laras "significant provocation" of the shooting and "the rather significant and severe prison term [defendant] will face anyway."
When as here, a court mistakenly believes it has no discretion to dismiss a strike prior and its comments suggest it may have been inclined to dismiss the strike prior, the matter must be remanded so the court may reconsider the defendants sentence and exercise its section 1385 discretion. (People v. Gillard (1997) 57 Cal.App.4th 136, 165; People v. Sotomayor (1996) 47 Cal.App.4th 382, 391; Romero, supra, 13 Cal.4th at p. 530, fn. 13.) We express no opinion whether it would be an abuse of discretion to strike the 2002 strike prior, however. (See People v. Sotomayor, supra, at p. 391.)
On remand, the court must consider whether defendant may be deemed outside the spirit of the "Three Strikes" law in light of his criminal history, his current offenses, and his background, character, and prospects. As articulated in People v. Williams (1998) 17 Cal.4th 148, 161, the court must consider whether, "in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies."
B. The Matter Must Also Be Remanded to Consider Imposing Concurrent Rather Than Consecutive Terms on Counts 5 and 6
Defendant further claims the matter must be remanded for resentencing because the court erroneously failed to state its reasons for imposing consecutive terms on counts 5 and 6. Alternatively, he argues his defense counsel was ineffective in failing to object to the consecutive terms or argue that the terms were unwarranted in view of the factors described in rule 4.425. We agree the matter must be remanded for resentencing on this ground.
As discussed, defendant was sentenced to an aggregate term of 24 years 4 months in prison, consisting of 19 years on count 5 (assault with a semiautomatic firearm upon Sandra) and a consecutive term of five years four months on count 6 (assault with a semiautomatic firearm upon Lara). The 12-year term imposed on count 5 included four years for the personal discharge enhancement and three years for the great bodily injury enhancement. The five-year four-month term imposed on count 6 included 16 months for the personal discharge enhancement. The base terms on both counts were doubled based on defendants prior strike conviction. Concurrent terms were imposed on all other counts and enhancements.
The court did not state its reasons for imposing consecutive terms on counts 5 and 6, as rule 4.406(b)(5) requires. Nor did the court expressly consider the factors set forth in rule 4.425(a). These include (1) whether the crimes and their objectives were predominantly independent of each other, (2) whether the crimes involved separate acts of violence or threats of violence, and (3) whether the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. (Rule 4.425(a).)
Each of these factors tended to favor imposing concurrent rather than consecutive terms. Indeed, the crimes were not predominantly independent of each other; they did not involve separate acts of violence or threats of violence; and they were not committed at different times or places. Instead, they involved a single act of violence on a single occasion and, as the court itself observed, were committed with "significant provocation" on the part of Lara. Had these considerations been brought to the courts attention, it is reasonably probable the court would have imposed concurrent rather than consecutive terms on count 5 and 6. (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684 [remand for resentencing is warranted when it is reasonably probable the defendant would have realized a more favorable result in the absence of the courts erroneous failure to state its reasons for its sentencing choice].)
In imposing consecutive terms on counts 5 and 6, the court appeared to be influenced by the fact that the counts involved separate victims, Sandra and Lara. Shortly before the court pronounced the consecutive terms, the court and the prosecutor discussed and agreed that section 654 did not prohibit imposing separate terms on counts 5 and 6. It does not follow, however, that consecutive terms were warranted. Furthermore, the courts comments indicated it was very much inclined to impose, and did in fact impose, an aggregate sentence less severe than the maximum allowable by law.
The People argue defendant has forfeited his right to complain of the consecutive terms on appeal because he did not object when the court failed to state its reasons for its sentencing choice. (People v. Scott (1994) 9 Cal.4th 331, 356.) But even if the issue was forfeited, defense counsel was ineffective in failing to bring the matter to the courts attention. (Strickland v. Washington (1984) 466 U.S. 668, 693-694.)
In view of our conclusion that the matter must be remanded for resentencing, it is unnecessary to address defendants further claim that the courts sentencing minute order and his abstract of judgment must be amended to reflect that he was sentenced to five years four months on count 6 rather than on count 2.
IV. DISPOSITION
The matter is remanded to the trial court for resentencing. Upon remand, the court is to consider whether to dismiss defendants 2002 strike prior in the interests of justice, and impose concurrent rather than consecutive terms on counts 5 and 6. In all other respects, the judgment is affirmed.
We concur:
Ramirez, P.J.
Gaut, J.