Opinion
D069363
06-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIC LOPEZ, Defendant and Appellant.
Janice R. Mazur, 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 Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD258961) APPEAL from a judgment of the Superior Court of San Diego County, William R. Chidsey, Jr., Judge. (Retired judge of the Los Angeles County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified, with directions. Janice R. Mazur, 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 Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Eric Lopez of 31 counts arising from a crime spree in the fall of 2014, among them five counts of carjacking (Pen. Code, § 215, subd. (a); counts 1-2, 7, 18-19), seven counts of robbery (§ 211; counts 3-4, 9, 20-21, 24-25), six counts of assault with a semiautomatic weapon (§ 245, subd. (b); counts 5-6, 10-11, 26-27), and two counts of kidnapping (§ 209, subd. (b)(1); counts 22-23). The jury further found true allegations that appellant was vicariously armed with a firearm in the commission of counts 1-7, 10-11, 18-30, and 33-35, and personally used a firearm in the commission of count 7. The court sentenced Lopez to 62 years, plus two consecutive life terms for the kidnapping counts. Pursuant to section 654, the court imposed but stayed punishment on counts 2 (full midterm), 19 (one-third midterm), and 34 (full midterm). The court also imposed, but stayed, the one-year vicarious firearm enhancement term on counts 2, 5-6, 10-11, 19, 26-29, and 34.
All further statutory references are to the Penal Code.
On appeal, Lopez challenges the jury's true finding on the personal use of a firearm allegation on count 7 (the Lexus carjacking), contending it must be reversed because there was insufficient evidence to establish that Lopez used a firearm during the carjacking. Lopez additionally contends the true finding should be reversed because it is inconsistent with the jury's other true finding on count 7 that he was vicariously armed with a firearm. Regarding his sentencing, Lopez challenges the court's imposition of a full-term stayed sentence on count 34, contending the sentence violates section 1170.1, subdivision (a). In contrast, the People maintain (although they did not file a notice of appeal) that the trial court improperly imposed a stayed sentence of one-third of the midterm for count 19, rather than imposing and staying the full midterm. Further, we noted that Lopez was sentenced with two different firearm term enhancements on count 7, which appeared to violate section 12022.53, subdivision (f), and sought supplemental briefing from the parties on the issue.
We conclude there was sufficient evidence to support the jury's true finding on the personal use of a firearm allegation for count 7 and reject Lopez's contention that the finding must be reversed due to inconsistency. However, we determine that the trial court erred in imposing additional terms for two separate firearm enhancements on count 7, and order that the judgment be amended to stay the shorter term. We also conclude the full-term stayed sentence on count 34 is proper, but the judgment must be amended to correct the stayed sentence of one-third of the midterm on count 19. In all other respects, we affirm the judgment of conviction.
FACTUAL OVERVIEW
A. The Truck Theft
On September 25, 2014, Justin S. discovered his Dodge pick-up truck had been stolen from the parking lot of his apartment.
We decline to use the full names of Lopez's victims in order to protect their privacy. (Cal. Rules of Court, rule 8.90(b).) Our use of the victims' first names is in no way intended as a sign of disrespect.
B. The Carjacking, Robbery, and Assault of Swedish Tourists (counts 1-6)
During the early morning of September 28, 2014, two Swedish tourists were sleeping in a rental car when they were awoken by a gunman smashing out the car window. The gunman and his associate ordered the tourists out of the car, took their personal belongings, and one of the men left in the rental car. The female Swedish tourist described the gunman as wearing a red bandana on his head, "bigger" in "face, head, body, [and] length" than the other suspect, and having more of a round face, similar to Lopez's. The male Swedish tourist characterized the gunman as having a "round face" and eyes like Lopez, and identified the other carjacker as Jose Gomez. When the police recovered the rental car a few days later, Lopez's fingerprints were on it.
C. The Lexus Carjacking, Robbery and Assault (counts 7, 9-11)
Early in the morning of October 4, 2014, Kane K. was talking with V.S. near their parked cars when two men arrived in a truck. The man from the passenger side of the truck jumped out and, wielding a gun, demanded that Kane and V.S. raise their hands. V.S. was between Kane and the gunman. When asked if he could describe the gun, Kane said "[i]t was dark. I can't tell." Kane described the gunman as wearing a hoodie and having a black and white bandana over his face, but was unable to identify him. Immediately after the incident, Kane told police that the gunman had driven away in his Lexus, although at trial he was unable to recall which man had left in his car. The man who drove away in the Lexus appeared to have some difficulty operating the stick shift.
V.S. described the gunman as wearing all dark clothing, long sleeves and long pants, a "hoodie" and a bandanna over his face. She stated that the other suspect, who was holding a knife, was also wearing a hoodie and he "wasn't very big," "probably my height, not too tall." In contrast, she described the gunman as "big and round," but "not muscular," and indicated he was the one who "pretty much directed" the encounter and told them what to do. She could not positively identify either suspect because "[i]t was too dark" and "[t]hey were covered." Regarding the gun, V.S. recalled that it was "a short gun," about the size of a man's hand. When asked if the gun had "any color," V.S. stated "I would say it was dark. I wasn't thinking."
Approximately 23 minutes after the carjacking, security camera footage showed Lopez and Gomez at a nearby gas station. Gomez was driving a Dodge pickup truck. Lopez arrived on foot, wearing a backwards ball cap, black shirt and black pants, and spoke briefly with Gomez as they pumped gas into the truck. Lopez then walked out of view and drove up behind the truck in the Lexus approximately one minute later. Lopez pumped gas into the Lexus, using the same pump used to fuel the truck. The two men then left the station in tandem, Gomez in the truck and Lopez in the Lexus.
D. The BMW Carjacking and Robbery (counts 18-21)
In the evening of October 4, 2014, a judge and his wife were driving home from a dinner celebrating their 28th wedding anniversary, when the couple's BMW was bumped from behind by another vehicle. After the judge pulled over and got out of his car to inspect the damage, a man got out of the other vehicle and took the couple's personal belongings and another man drove away in the BMW. The judge identified one of the men as Lopez and referred to him as having "kind of a round face" and as a "bigger guy."
E. The Kidnapping, Robbery and Assault of College Students (counts 22-27)
Very early in the morning on October 5, 2014, two UCSD students were walking on Genesee Avenue when they were kidnapped and robbed by two men. Shortly after releasing the students and driving away, the men returned to the area. The students hid behind a bush and heard the men curse and one man fire a shot before the kidnappers drove away. The male kidnapping victim described one of the kidnappers as wearing a dark bandana and some type of hat pulled down low, making it hard to distinguish his face, but said his face shape was similar to Lopez's, and characterized him as the larger of the two men.
F. Lopez's Arrest
Lopez was arrested in the stolen Dodge truck in the afternoon of October 5, 2014. The police found a .22-caliber semiautomatic handgun and ammunition in the truck, drugs and drug paraphernalia and items that had come from the Lexus carjacking and from Lopez's various other victims. Lopez's DNA was on the handgun and on the gun's magazine. The truck also contained a recent parking permit for the EZ-8 motel.
G. Additional Evidence
The Lexus was recovered a few days after Lopez's arrest, near the EZ-8 motel. A video taken two days before the Lexus carjacking showed Lopez checking into the motel. The police also located the BMW near the home where Gomez was residing, and found a white bandana with a black pattern on the ground near the front passenger side tire. The bandana contained Lopez's DNA. Investigators found Lopez's fingerprints on the interior passenger side window of the BMW, and Gomez's fingerprints on the exterior driver's side window.
DISCUSSION
I. Substantial Evidence Supports Lopez's Personal Use of a Firearm Enhancement
Lopez contends there was insufficient evidence to support the jury's findings that he personally used a firearm within the meaning of section 12022.53, subdivision (b), during the Lexus carjacking. We disagree.
A. Legal Principles
Section 12022.53, subdivision (b), provides for an additional consecutive 10-year term of imprisonment when an offender "personally uses a firearm" in the commission of certain felonies, including carjacking. Whether a defendant used a firearm within the meaning of section 12022.53 is a question of fact for the jury. (People v. Bryant (2011) 191 Cal.App.4th 1457, 1472.) When multiple offenders are involved, the witnesses' failure to conclusively identify the gunman is not fatal to a jury's findings on personal use allegations. (People v. Mendez (2010) 188 Cal.App.4th 47, 58-59 (Mendez) [sufficient evidence supported finding the defendant personally used a firearm during the robbery when the victim "testified that the person who approached him with the gun was wearing a baseball cap and black shorts," the evidence demonstrated that defendant was wearing black shorts when the police saw him flee the scene, and a baseball cap was recovered from where defendant was hiding].) In addition, partial identification of a defendant, together with other circumstantial evidence, may constitute substantial evidence to support a conviction. (People v. Yates (1958) 165 Cal.App.2d 489, 494 (Yates) [defendant's possession of stolen property within a few hours after the crime and a witness' partial identification of him as resembling one of the robbers "in height" was sufficient to support a robbery conviction].)
In evaluating a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the prosecution to determine whether it discloses "evidence which is reasonable, credible, and of solid value," from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Casares (2016) 62 Cal.4th 808, 823.) We do not weigh the evidence, resolve conflicting inferences or determine whether the prosecution has established its case beyond a reasonable doubt. (Ibid.) Even if the evidence is subject to conflicting interpretations, we will not reverse the judgment if the jury's findings are reasonable. (Id. at pp. 823-824.) If the sufficiency of evidence involves a question of identity, we may only set aside a jury's finding of guilt when the evidence of identity is "so weak as to constitute practically no evidence at all." (People v. Mohamed (2011) 201 Cal.App.4th 515, 521.)
B. Analysis
Here, there was ample evidence to support the jury's conclusion that Lopez personally used a firearm in the Lexus carjacking. Kane told police shortly after the carjacking that the gunman had left in the Lexus. Lopez was seen in a gas station video driving the Lexus approximately 23 minutes after the carjacking, wearing dark clothes like the gunman. Lopez contends it is "reasonable to assume" that the two carjackers may have changed vehicles before arriving at the gas station because it was only 6.5 miles from the crime scene, and the gunman had experienced difficulties operating the Lexus. However, there is no evidence that the men changed vehicles and the evidence alternatively supported the reasonable inference that the gunman was initially challenged by the unfamiliar manual transmission, but became more proficient in shifting gears while taking a circuitous route to the gas station, perhaps in an attempt to evade any potential police pursuit.
Further, V.S. described the gunman as "big and round," but said the other carjacker was "not very big," and many of Lopez's victims characterized him as a "bigger guy" or larger than Gomez and as having a round face. In addition, Kane had described the gunman as wearing a black and white bandana and the police found a white bandana with black markings containing Lopez's DNA near the BMW that Lopez had carjacked several hours after the Lexus. The day after the carjacking, the police discovered Lopez with a handgun, which had Lopez's DNA on the exterior and on the magazine. All of this evidence, taken together, was more than sufficient to support the jury's true finding that Lopez personally used a firearm during the carjacking.
In his briefing, Lopez characterizes the gun as "silver," and he argues that his being found with a silver gun over 36 hours after the carjacking "had no bearing whatsoever on the identity of the gunman," particularly as the Lexus carjacking victims described the gun as "dark." However, the police officer who found the gun indicated it had "shiny or silver chrome" on the top part of the slide, while the gun's frame was "a little bit darker gray," and the same gun appeared "to be considerably darker, almost black" in a photograph. The female Swedish tourist looked at a photograph of the gun and said it looked "really similar," to the gun used in that crime due to "[t]he black in the front of it and the half silver/half black on the side." Further, the Lexus carjacking victims' statements regarding the gun were ambiguous and reasonably could be interpreted to mean it was too dark for them to describe the gun, rather than as an affirmative indication that the gun was dark colored. In addition, the gun was found with Lopez in a truck with stolen items from his various crimes and no evidence was presented that any other gun was ever found during the police search of Gomez's residence, on Gomez's person (Gomez was also arrested), or in any of the other recovered vehicles that the men had stolen.
II. Inconsistent Enhancement Findings Do Not Require Reversal
Lopez contends we must reverse his 10-year sentence enhancement based on the jury's true finding that he personally used a firearm (12022.53, subd. (b)) on count 7 because the finding is inconsistent with the jury's true finding on the vicarious firearm enhancement (§ 12022, subd. (a)(1)) on the same count. He also contends the court erred by not directing the jury to reconsider its inconsistent findings under section 1161.
A. Additional Background
The verdict form for count 7 stated the section 12022, subdivision (a)(1), and section 12022.53, subdivision (b), allegations as follows:
"And it is alleged that defendant, ERIC LOPEZ, although not personally armed with a firearm, WAS/WAS NOT himself a principal in the
commission and attempted commission of the above offense and WAS/WAS NOT vicariously liable within the meaning of Penal Code section 12022(a)(1).For the vicarious firearm enhancement, the court instructed the jury to make a true finding if it (1) found defendant guilty of the underlying crime, and (2) also found that one of the principals was armed with a firearm. The instruction did not state that the principal with the firearm needed to be someone other than Lopez. The prosecutor explained in closing argument that the jury should consider the allegation that Lopez was vicariously armed with a firearm in the alternative to the allegation of Lopez's personal use of a firearm.
"And it is further alleged that in the commission and attempted commission of the above offense, the defendant ERIC LOPEZ [did/did not] personally and intentionally use a firearm, to wit: a handgun, within the meaning of Penal Code section 12022.53(b)."
The written instruction, CALCRIM No. 3115, stated in pertinent part as follows:
"If you find the defendant guilty of the crimes charged in Counts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29 and 34, or any lesser crime you must then decide whether, for each crime, the People have proved the additional allegation that one of the principals was armed with a firearm in the commission of that crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.
"A person is a principal in a crime if he or she directly commits the crime or if he or she aids and abets someone else who commits the crime.
"A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.
"A principal is armed with a firearm when that person:
1. Carries a firearm or has a firearm available for use during the counts charged as set forth above or any lesser crime; and
2. Knows that he is carrying the firearm." The trial court's oral instruction was essentially the same.
The jury submitted three separate notes to the court, seeking clarification of the firearm enhancement allegations. The jurors first asked: "can you clarify the allegations sections of the verdict forms? They are not all the same." The court explained that there were three different firearm allegations: "one of which allege one of the principals was armed," the second "alleged that the defendant was personally armed," and for the third, "not only was the defendant armed but personal use of the weapon." The jury also asked: "If the jury decides he was a principal do we also state that he was vicariously liable or do we cross it out or do we say was not vicariously liable?" In response, the court read one of the verdict forms and explained that the jury should first determine whether the defendant was "involved in the crime in any way," and then whether he was "vicariously liable in the acts of a co participant" and did not need to address the special allegation unless he was found guilty of the crime. The jury subsequently asked: "On the allegation paragraphs if we believe he had a weapon does it matter that on the verdict form it states although not personally armed." The court responded by providing written instruction to the jury as follows: "Find only as alleged." Shortly thereafter, the jury made true findings on count 7 on both the allegation that Lopez was vicariously armed with a firearm and the allegation that he personally used a firearm.
B. Legal Principles
Inconsistent verdicts on separate counts are generally allowed to stand if they are otherwise supported by substantial evidence. (§ 954 ["An acquittal of one or more counts shall not be deemed an acquittal of any other count."]; People v. Lewis (2001) 25 Cal.4th 610, 655-656 (Lewis).) Although the language of section 954 refers to "counts," the policy underlying the section has been interpreted broadly as equally applicable to factually inconsistent enhancements. (People v. Brown (1989) 212 Cal.App.3d 1409, 1420 (Brown), disapproved of on other grounds by People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10 [applying the policy to inconsistent enhancement findings on the same count that the defendant personally used a firearm (§ 12022.53), but was not liable as a principal for a crime in which one of the principals was armed (§ 12022, subd. (a))]; People v. Lopez (1982) 131 Cal.App.3d 565, 570-571 ["The fact that the word 'enhancement' is used rather than 'offense' does not nullify the underlying rationale of refusing to invalidate an inconsistent jury verdict if it is otherwise supported by substantial evidence."].) Regardless of whether the policy is applied to counts or enhancements, the defendant is protected "against jury irrationality or error" through the courts' independent review of the sufficiency of the evidence. (Lewis, at p. 656.)
The rationale for allowing factually inconsistent verdicts is based upon the concept that even though the jury has made an error in not following the court's instruction, they may have "arrived at an inconsistent conclusion through 'mistake, compromise, or lenity,' " and it is not clear whether the mistake favored the defendant. (People v. Avila (2006) 38 Cal.4th 491, 600 (Avila), citing United States v. Powell (1984) 469 U.S. 57, 65 (Powell).) "Thus, if a defendant is given the benefit of an acquittal on the count on which he was acquitted, 'it is neither irrational nor illogical' to require him to accept the burden of conviction on the count on which the jury convicted." (Avila, at p. 600, citing Powell, supra, at p. 69.) However, this rationale does not address the situation in which a jury makes true findings on two inconsistent special circumstances allegations. (Avila, at p. 601.)
In Avila, the California Supreme Court considered a circumstance in which the jury made inconsistent true findings of rape-murder (which required the murder to occur during the rape) and witness-killing (which required the murder to occur after the rape) special circumstances. (Avila, supra, 38 Cal.4th at p. 601.) The court concluded the inconsistency was harmless in that case because the trial court had stricken the rape-murder special circumstances, "thus there was no practical error that worked against [the defendant]." (Ibid.) The court further reasoned that, "in any event" there was sufficient evidence to support the true finding on the witness-killing special circumstances, and cited the United States Supreme Court decision in Powell for the proposition that "a 'criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts . . . . [No] further safeguards against jury irrationality are necessary.' " (Ibid., citing Powell, supra, 469 U.S. at p. 67.) The court therefore rejected the defendant's claim of constitutional error. (Avila, at p. 601.)
C. Analysis
As written, the verdict form on count 7 revealed a factual inconsistency between the jury's true finding on the section 12022, subdivision (a)(1) allegation which contained the phrase "although not personally armed with a firearm," and the section 12022.53, subdivision (b) allegation that Lopez was personally armed with a firearm during the commission of the offense. However, the two true findings are not legally inconsistent. (See People v. Grant (1951) 105 Cal.App.2d 347, 352 [verdicts are inconsistent when "rendered in response to charges of offenses the elements of which are identical"].) Section 12022, subdivision (a)(1), provides that it "shall apply to a person who is a principal in the commission of a felony. . . if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm." (§ 12022, subd. (a)(1) [italics added].) Section 12022.53, subdivision (b), provides in pertinent part that "[n]otwithstanding any other provision of law, any person who, in the commission of [certain felonies], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years." Because the section 12022.53, subdivision (b) enhancement requires proof of an additional element (the defendant's own personal use of a firearm), and the section 12022, subdivision (a)(1) enhancement does not depend on any determination of which principal is armed, the elements of the two sections are not identical.
The section 12022, subdivision (a)(1) allegation on the verdict form was similar in effect to the proverbial question—"Have you stopped beating your wife?"—because Lopez's nonpossession of a firearm was presumed. Accordingly, if the jury mistakenly believed it was required to make a finding on the allegation, it was limited to finding either (1) that Lopez was not a principal in the crime (as in Brown, supra, 212 Cal.App.3d at p. 1420); or (2) that he was a principal who did not possess a firearm, but could not separately address the underlying presumption of his lack of a firearm.
Section 12022.53, subdivision (f), addresses the interplay between the various firearm enhancements, providing, in part, that "[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section." When a jury makes a true finding on more than one of the firearm allegations referred to in section 12022.53, subdivision (f), the California Supreme Court has held that the court is required to impose each of the enhancements, execute the one with the longest term of imprisonment, and stay the rest. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 (Gonzalez).) Thus, true findings on the two firearm enhancements at issue here are not legally inconsistent and are not mutually exclusive under the statutory scheme. (§§ 12022, 12022.53.)
Furthermore, as explained in Lewis and Avila, to the extent the jury made a mistake in rendering one of the true findings, Lopez is protected by the sufficiency of the evidence review. (See Lewis, supra, 25 Cal.4th at p. 656; Avila, supra, 38 Cal.4th at p. 601.) We have conducted an independent review of the record and, as more fully discussed above, have determined there is substantial evidence to support the jury's true finding on the personal use of a firearm allegation (§ 12022.53, subd. (b)). Consequently, we are not required to reverse the jury's true finding that Lopez personally used a firearm.
Lopez further argues the trial court erred in failing to direct the jury to reconsider its inconsistent findings, relying upon People v. Carbajal (2013) 56 Cal.4th 521, 535 (Carbajal), which he construes as imposing a "directive" on the trial court to provide "correct and comprehensive guidance" under section 1161 when confronted with an inconsistent verdict. However, the language of section 1161 is permissive, rather than mandatory, and Carbajal does not hold that reversal is warranted if a court fails to order reconsideration of inconsistent verdicts. In Carbajal, the California Supreme Court explained that statutory provisions governing the court's response to a jury verdict were "intended to reduce the likelihood of a trial court unduly, even if inadvertently, influencing the jury to reach a particular outcome." (Carbajal, at p. 531.) The court noted "[m]ere inconsistency does not provide a valid reason for courts to reject a jury verdict" and emphasized that section 1161 applies only in the limited circumstances "where 'it appears to the Court that the jury have mistaken the law' in initially rendering a 'verdict of conviction.' " (Carbajal, at p. 532.)
Section 1161 provides in pertinent part: "When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the Court cannot require the jury to reconsider it."
In this case, there is no indication that the jury was mistaken regarding the law in applying section 12022, subdivision (a)(1), because that enhancement applies to a person who is the principal in a crime involving a firearm "whether or not the person is personally armed with a firearm." Nor is there anything to suggest that the jury was mistaken about the law in making a true finding on the section 12022.53, subdivision (b) allegation, where the allegation was clear and there was sufficient evidence to support it. The trial court therefore would have had no reason to seek reconsideration of the firearm enhancement allegations under section 1161.
Further, in his reply brief, Lopez likens this case to People v. Brown (2016) 247 Cal.App.4th 211, in which a verdict was overturned when a jury entered both a guilty verdict and a not guilty verdict on the same count. However, as noted by the court in Carbajal, in such a circumstance the verdict is unintelligible because it is not possible to understand whether the jury has actually convicted or acquitted the defendant of the count. (Carbajal, supra, 56 Cal.4th at p. 532.) The Carbajal court distinguished the circumstance of an acquittal and guilty verdict on the same count from a case in which the jury's findings on a special allegation were inconsistent with findings on the substantive count. (Ibid.) Here, although the factual findings underlying the firearm enhancement allegations were inconsistent, the jury's decision to make a true finding on each enhancement could be ascertained from the verdict form, thus the two true findings were not inconsistent to the point of being unintelligible like the inconsistent verdicts in People v. Brown.
Although we affirm the jury's true finding on the personal use of a firearm enhancement, we do find error in Lopez's sentencing on count 7, as he should not have been sentenced with term enhancements under both sections 12022 and 12022.53. (See § 12022.53, subd. (f); Gonzalez, supra, 43 Cal.4th at p. 1130.) We therefore order that Lopez's sentence be modified to reflect a stay of the section 12022, subdivision (a)(1), one-year enhancement term imposed on count 7, as required under Gonzalez. III. Section 1170.1 Does Not Apply to Sentences Stayed Under Section 654
Both parties concur, in their supplemental briefing, that the one-year term imposed under section 12022, subdivision (a)(1), should have been stayed.
Lopez maintains the trial court erred in imposing a full consecutive term for count 34, under section 1170.1, subdivision (a). The People contend the trial court correctly applied the law in sentencing for a full term on count 34, because the count was stayed under section 654, but erred in imposing only a one-third of the midterm sentence for count 19, another stayed count. We conclude the People have the better argument.
Section 1170.1, subdivision (a), applies to sentencing of offenders convicted of multiple felonies and requires the court to impose a principal term, based on the offense with the longest term, and then impose subordinate terms for each consecutive offense "consist[ing] of one-third of the middle term." However, "[t]he one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not to a sentence stayed under section 654." (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.) When a sentence is required to be stayed under section 654, the trial court should impose a full-term sentence to ensure the "defendant's punishment is commensurate with his criminal liability" in the event that the stay is lifted. (Ibid.) We have inherent authority to correct an unauthorized sentence by modifying the judgment. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198 (Relkin) [correcting a judgment on the appellate court's own initiative to impose a full midterm sentence, rather than a one-third of the midterm sentence, on a count stayed under 654].)
Here, contrary to Lopez's assertion, the trial court properly imposed a full-term sentence for count 34, which was stayed under section 654. (See Cantrell, supra, 175 Cal.App.4th at p. 1164.) In contrast, it erred in imposing a sentence of one-third of the midterm for count 19, which was likewise stayed. (See Relkin, supra, 6 Cal.App.5th at pp. 1197-1198.) We therefore order that the abstract of judgment be modified to amend the sentence on count 19 to reflect a full midterm sentence.
The midterm sentence for count 19 (carjacking; § 215, subd. (a)) is five years. (§ 215, subd. (b).)
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect a five-year sentence on count 19 (the full midterm), rather than one-third of the midterm, to remain stayed pursuant to section 654. The court is further directed to amend the abstract of judgment to indicate a stay of the one-year term for the section 12022, subdivision (a)(1), firearm enhancement on count 7, and to reduce the "total term" of Lopez's determinate sentence from 62 to 61 years. Finally, the court is directed to forward a copy of the amended abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment of conviction is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. IRION, J.