Opinion
B266094
04-02-2018
THE PEOPLE, Plaintiff and Respondent, v. OSMAN YOUSAF LATIF, Defendant and Appellant.
William J. Capriola, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and Peggy Z. Huang, Deputies Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. GA091530) APPEAL from judgment of the Superior Court of Los Angeles County, Cathryn F. Brougham, Judge. Affirmed. William J. Capriola, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and Peggy Z. Huang, Deputies Attorney General, for Plaintiff and Respondent.
____________________
Defendant and appellant Osman Yousaf Latif appeals from a judgment following a jury trial in which he was convicted of carjacking (Pen. Code, § 215, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and nine counts of second degree robbery (§ 211). The jury found that defendant personally used a firearm in the commission of the robberies (§ 12022.53, subd. (b)) and the assault with a firearm (§ 12022.5, subd. (a)), and that a principal used a firearm in commission of the carjacking (§ 12022, subd. (a)(1)). The court sentenced defendant to a total of 43 years in state prison.
All statutory references are to the Penal Code unless otherwise stated.
Latif and co-defendant Paul Ahumada filed timely notices of appeal. Latif's appeal was dismissed pursuant to California Rules of Court, rule 8.360(c)(5)(A)(iii). We modified the judgment as to Ahumada, remanded for findings on prior prison term allegations, and affirmed the judgment in all other respects. (People v. Ahumada (June 14, 2016, B266094) [nonpub. opn.].) After our remittitur issued, Latif filed a motion to recall the remittitur, which was granted in order to reinstate his appeal.
Defendant contends the trial court erred in imposing concurrent sentences for the robbery conviction and the assault conviction against a restaurant owner, rather than staying the sentence on the assault conviction pursuant to section 654. He also contends the cause must be remanded to allow the trial court to exercise its discretion under section 1385 to strike firearm enhancements under sections 12022.5 and 12022.53. (Senate Bill No. 620 (2017-2018 Reg. Sess.).) The Attorney General concedes that the sentence imposed for the assault conviction should have been stayed, but contends no remand is necessary.
Consistent with the position of the parties, we order the concurrent sentence for assault with a firearm stayed pursuant to section 654. We remand to permit the trial court to exercise its discretion under Senate Bill No. 620.
FACTS
On November 16, 2013, Paul Ahumada held a gun to the head of a driver of a Camry, took the car keys, and forced the driver to lay on the ground. Ahumada and defendant drove the Camry to a restaurant. Defendant brandished a gun inside the restaurant while Ahumada was armed with a knife. Two restaurant owners and seven customers were present. Defendant and Ahumada ordered those present to turn over purses, wallets, and cell phones, which they placed in a bag with cash from the register. They drove away in the stolen Camry.
The owner of a nearby shop provided the Camry's license plate number to the police. Officer Alan Pucciarelli spotted the Camry and activated the lights on his vehicle. The driver accelerated and drove recklessly at a high speed until he lost control of the car. The Camry struck another vehicle and a concrete divider before it flipped onto the driver's side. When the officers arrived, defendant raised his hands from the back seat. Ahumada kicked and punched the windshield. He crawled out through the hole in the windshield. Ahumada ran when Officer Michael Lee ordered him to get on the ground. He was apprehended by another officer a few minutes later. Officer Pucciarelli smashed the Camry's back window and Officer Harry Jung lifted defendant out of the car. A loaded handgun magazine fell out of defendant's pocket. Purses, wallets, cell phones, and money were found in and around the Camry, along with a gun magazine containing six bullets.
DISCUSSION
Stay of Sentence for Assault with a Firearm
Defendants contends, the prosecution concedes, and we agree that the concurrent sentence for assault with a firearm must be stayed pursuant to section 654. The robbery and assault of one of the restaurant owners were committed with a single objective, to steal money from the cash register which the restaurant owner controlled, and were part of an indivisible transaction. (People v. Beamon (1973) 8 Cal.3d 625, 637 [defendant who commits assault with a deadly weapon in the commission of first degree robbery may be convicted of both offenses but not separately punished].) Discretion to Strike Firearm Enhancements
Defendant contends that the trial court has discretion under recently enacted Senate Bill No. 620 to strike the nine consecutive firearm enhancements imposed under 12022.53, subdivision (b), and the firearm enhancement imposed pursuant to section 12022.5, subdivision (a). (§§ 12022.5, subd. (c), 12022.53, subd. (h).) He asserts that the case should be remanded to allow the trial court to exercise its discretion to strike the firearm enhancements, because the court lacked the power to do so at the time of sentencing.
At sentencing, the trial court selected the low term of three years for defendant's carjacking conviction, stating that the court was taking into consideration defendant's military service and relatively minor criminal record. The court added one year for the use of a firearm by a principal. With respect to the robbery convictions, the court acknowledged that it had discretion to run the sentences concurrently, but declined to do so. The court explained, "The reason for that is that this was a very violent dangerous crime that Mr. Latif committed. Very innocent, vulnerable people simply having dinner in a restaurant. I saw many of them come to court who were, many months after the crime had been committed, were obviously still very traumatized. [¶] . . . [¶] So, for that reason, the court is going to run those consecutive. So, that is one-third midterm for each count of robbery." The sentence for the nine counts of robbery was nine years. The trial court added, "As to the gun use on each one, it will be one-third of the 10 years pursuant to Penal Code section 12022.53, which is three years and four months times nine."
When the trial court considered the sentence for assault with a deadly weapon, the court imposed one-third the midterm, which was one year, and one-third for the gun use, which was three years four months, but ordered the sentence to run concurrently. "The reason the court is doing that is that I do believe that it was part of one transaction. That is was the same situation in which the robbery was committed. And I think it is in the interest of justice to run it concurrent." The trial court imposed a total sentence of 43 years.
When defendant was charged, convicted and sentenced, section 12022.53, subdivision (b), provided that any person who personally used a firearm in the commission of an enumerated felony be sentenced to an additional, consecutive term of 10 years. (Former § 12022.53, subd. (b).) After defendant was convicted, but before the cause was final on appeal, the Governor signed Senate Bill No. 620, amending former section 12022.53, subdivision (h), to permit the trial court to strike a firearm enhancement as follows: "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." (Stats. 2017, ch. 682, § 1.)
Section 12022.5 mandated that "any person who personally uses a firearm in the commission of a 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." (Former § 12022.5, subds. (a) & (c).) Senate Bill No. 620 similarly amended former section 12022.5, subdivision (c), to permit the trial court to strike a firearm enhancement as follows: "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." (Stats. 2017, ch. 682, § 1.)
At the time of sentencing, the trial court did not have the discretion to strike the firearm use findings under sections 12022.53, subdivision (h), or 12022.5, subdivision (c). We note that the discretion to dismiss a firearm use finding under section 12022.5, subdivision (c), or section 12022.53, subdivision (h), must be exercised pursuant to section 1385 for reasons that are "in furtherance of justice." We conclude that the court should be afforded the discretion to consider the matter in the first instance, and we remand for that limited purpose.
DISPOSITION
The concurrent sentence for count 10, assault with a firearm, is stayed pursuant to Penal Code section 654. The cause is remanded to the trial court to consider exercise of its discretion under Penal Code sections 12022.53, subdivision (h), and 12022.5, subdivision (c). If the court declines to exercise its discretion to strike the firearm use enhancements, the judgment shall stand as affirmed.
KRIEGLER, Acting P.J. We concur:
BAKER, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------