Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE252974, Christine K. Goldsmith, Judge.
NARES, Acting P. J.
In September 2006 a jury found Armando Francisco Lopez guilty of carjacking (Pen. Code, § 215, subd. (a); count 1); possession of a firearm by a felon (§ 12021, subd. (a)(1); count 2); and two counts of assault with a firearm (§ 245, subd. (a)(2); counts 3 & 4). The jury found true the allegations that as to all counts he personally used and discharged a firearm within the meaning of section 12022.5, subdivision (a). Lopez admitted he had a prior serious felony conviction, a prior strike and a prior prison term conviction.
All further statutory references are to the Penal Code unless otherwise specified.
The court sentenced Lopez to a total prison term of 39 years eight months, consisting of (1) the midterm of five years on count 1, doubled to 10 years based on the prior strike conviction; (2) an additional consecutive 20-year term on count 1 for personally discharging a firearm; (3) a consecutive term of one year four months on count 2; (4) a two-year consecutive term on count 4, plus one year four months on the firearm enhancement; and (5) a five-year consecutive term for the prior serious felony conviction. The court stayed the sentence on count 3 and stayed the remaining firearm and prior prison term enhancements.
On appeal Lopez asserts (1) there is no substantial evidence to support the jury's finding that he discharged a firearm during the commission of the carjacking; (2) the court violated section 654 by imposing a sentence on the felon-in-possession-of-a-firearm conviction; (3) the court erred by imposing consecutive sentences based on facts not found by the jury beyond a reasonable doubt; and (4) the court erred by staying rather than striking Lopez's prior prison term enhancement.
We conclude the court erred by staying rather than striking the prior prison term enhancement and, as it is an unauthorized sentence, we shall modify Lopez's sentence to reflect that the prior prison term enhancement is stricken. As so modified, the judgment is affirmed.
FACTUAL BACKGROUND
A. People's Case
On May 15, 2005, John Sader, Lance Espiritu, Benjamin Lance and Steve Marin were riding motorcycles on a dirt track near the Golden Acorn Casino on land owned by the Kumeyaay Nation. Darren Sader (Sader) was riding on the track on a four-wheeled all-terrain vehicle known as a "quad." The five friends, who had been to the track several times in the past, rode their vehicles on the track for two to three hours. Every time they had been there before there were a lot of other people there, and they never had any problems. As dusk approached, all of the group, with the exception of Sader, decided to leave and rode their motorcycles up to a plateau above the track where their trucks were parked. Sader remained behind to do a few more laps.
While he was on the track by himself, Sader saw a vehicle drive through the track's gate. Timothy Cuero, a tribal member, was driving the car. In the car with him were two friends, Michael Rodriguez and Aaron Barker. Rodriguez and Barker exited the car. Sader rode his quad over to say hello. The men told Sader he was not permitted on the track. Rodriguez asked if he could ride Sader's quad. Sader refused, told the men he did not know he was not permitted to ride there and left to join his friends. Sader rode over to his friends, told them about the encounter, and told them the two men worried him. Sader told them he thought they should leave, and they started packing up their equipment.
Lopez arrived at the track. Lopez, followed by Rodriguez and Barker, started walking up to the plateau. Lopez had a semiautomatic handgun and Barker was carrying a baseball bat. Lopez was very angry and felt the five friends had disrespected him by riding on the track.
As Lopez approached the five friends and was about 30 or 40 feet away, he fired his handgun into the air. Lopez then pointed the gun at Sader and walked toward him. Lopez walked up to Sader and put the barrel of the gun to his forehead, right between his eyes. Sader felt heat from the just fired gun on his forehead. While holding the gun to Sader's forehead, Lopez was yelling that the men had "messed up" and that Sader had "disrespected him."
The friends repeatedly apologized for anything they may have done wrong, told Lopez they did not intend to cause trouble and that they would leave immediately. While Lopez held his gun to Sader's face, Rodriguez approached Espiritu and held the bat up like he was going to hit him. Sader and Espiritu were standing shoulder-to-shoulder. Lopez told Rodriguez to hit Espiritu. Before Rodriguez could swing the bat, Lopez pushed him out of the way, pointed the gun at Espiritu, and announced they were going to take Sader's quad. Rodriguez got onto Sader's quad, started it up, and drove away. Lopez walked away, still pointing the gun at the group, and threatened to kill them and their families if they informed the police about what happened. Lopez got in his vehicle and drove away.
At approximately 1:25 a.m. the next morning, Rodriguez was observed in a surveillance video riding Sader's quad in the Golden Acorn Casino parking lot. Several people were present, including Lopez. Rodriguez was driving the quad in a reckless manner, at one point popping up the front tires of the quad, crashing it, and falling off the back.
The next morning, Sader reported the incident to the San Diego County Sheriff's Department. Later that day, Deputy Daniel McClendon received a dispatch call for a stolen quad. Sader identified the quad as the one taken from him. Rodriguez was caught riding the stolen quad. Sader gave a description of Lopez and he was later located and taken into custody.
B. Defense Case
Rodriguez testified for the defense. He stated that on May 15, 2005, he accompanied Cuero and Barker to the track. They stopped at the track because they saw people trespassing. The track was not open to the public, and they saw Sader riding his quad on it.
Rodriguez approached Sader and told him that he needed permission to ride on the track. Sader said he did not need permission and drove his quad up to the plateau. Rodriguez saw another car approaching, with Jimmy Ferrin driving and Lopez a passenger. Rodriguez waved down the car as he knew Lopez was a tribal member who could tell Sader and his group to leave the track.
Rodriguez informed them some individuals on the plateau above had been riding on the track and were not supposed to be there. Lopez got out of the car and walked to the upper level. Rodriguez did not see Lopez carrying a gun. Shortly after Lopez started walking up to the plateau, he and Barker followed him. Barker brought along an aluminum baseball bat.
Rodriguez never told Lopez he wanted to steal the quad, and Lopez never suggested that they take it. When he walked up to the plateau, Rodriguez had not formed an intent to steal the quad. It was not until he reached the top and saw the quad that he decided he wanted it. Without discussing his plan with Lopez or anyone else, Rodriguez walked up to the quad, got on it, started it, and drove away. At the time, Lopez's back was to him. Rodriguez did not hear any gunshots and never saw a gun.
DISCUSSION
I. DISCHARGE OF FIREARM DURING COMMISSION OF CARJACKING
Lopez asserts there is insufficient evidence to support the jury's conclusion he discharged his handgun during the commission of the carjacking. This contention is unavailing.
A. Standard of Review
Whether a defendant personally used a firearm in the commission of an enumerated offense is a factual question for the jury to decide. (People v. Dominguez (1995) 38 Cal.App.4th 410, 421; People v. Masbruch (1996) 13 Cal.4th 1001, 1007.) "We review the sufficiency of the evidence to support an enhancement using the same [substantial evidence] standard we apply to a conviction." (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058 (Carrasco).)
In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics omitted.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence–that is, evidence which is reasonable, credible, and of solid value–such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
B. Analysis
Section 12022.53, subdivision (c) provides that "any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." Subdivision (a)(5) of section 12022.53 lists carjacking as one of the felonies to which the personal discharge of a firearm enhancement applies.
In Carrasco, supra, 137 Cal.App.4th at page 1053, the defendant "asked his friend to give him money. The friend refused. At various times during the next four hours defendant threatened to kill his friend and fired gunshots near the front of the store where his friend worked. Two hours after the shots were fired, defendant came to the store and demanded money from his friend but did not show a gun. His friend gave him money." Based upon these facts, the Court of Appeal concluded that "firing the gun after the first threat was made and two hours before defendant received the money supports the allegation of personally discharging a firearm during the commission of a robbery." (Ibid.) In upholding the firearm enhancement, the Carrasco court explained: "'"[R]obbery . . . is not confined to a fixed locus, but is frequently spread over a considerable distance and varying periods of time."' [Citations.] 'The crime is not divisible into a series of separate acts. Defendant's guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may . . . take some time to complete, are linked by a single-mindedness of purpose.' [Citation.] In other words, the crime of robbery begins with the commission of any of the defined elements and is completed when all of the remaining elements have been committed. It is a continuing offense that concludes not just when all the elements have been satisfied but when the robber reaches a place of relative safety. [Citation.]" (Id. at p. 1059.)
In this case, substantial evidence supports the jury's finding that Lopez discharged a firearm during the commission of a carjacking. He discharged his handgun moments before holding it to Sader's head and instructing Rodriguez to steal the quad. There was not a lapse of several hours, as in Carrasco, between the time Lopez fired the gun and when he completed the carjacking. Lopez's firing the gun in the air aided the crime, which is sufficient to support the jury's finding. (People v. Masbruch, supra, 13 Cal.4th at p. 1012 [a firearm use enhancement attaches to an offense if the firearm use aids the defendant in completing any essential element of the underlying crime].)
Lopez argues that "the only possible inference" that could be drawn from the evidence at trial was that Lopez fired the gun "to send [Sader] a message about [Sader's] unauthorized use of the track and because he perceived [Sader] as the one who disrespected the tribe." However, Lopez is merely rearguing the evidence on an issue the jury decided against him. The jury was not required to believe Lopez's version of events as there was substantial evidence from the testimony of the victim and his friends that it was Lopez's intent in firing the gun to frighten their group in order to make it easier to take the quad.
II. FELON IN POSSESSION OF FIREARM SENTENCE
Lopez asserts the court erroneously imposed a consecutive sentence for his section 12021, subdivision (a) conviction for possession of a firearm by an ex-felon and instead was required to stay that sentence under section 654. We reject this contention.
Section 654 bars double punishment for multiple offenses that constitute one indivisible transaction. (People v. Hicks (1993) 6 Cal.4th 784, 788-789.) However, a defendant may be separately punished for offenses that share common acts and are part of an indivisible course of conduct where the defendant entertained multiple criminal objectives. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085 (Green).) Whether a course of conduct is indivisible depends on the defendant's intent and objective rather than the temporal proximity of the offenses. (People v. Hicks, supra, at p. 789; People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)
In a section 654 analysis, the defendant's intent and objective are factual questions to be determined by the trial court. (Green, supra, 50 Cal.App.4th at p. 1085.) We will affirm the court's findings if there is substantial evidence to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We review the trial court's findings "'"in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence." [Citation.]' [Citation.]" (Id. at pp. 1312-1313; Green, supra, at p. 1085.)
Whether a violation of section 12021 constitutes a transaction divisible from the offense in which the defendant uses the firearm depends on the facts and evidence of each individual case. (People v. Bradford (1976) 17 Cal.3d 8, 22 (Bradford).) Multiple punishment is improper where the evidence shows "at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense." (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) However, separate punishment for the firearm possession is proper "when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm." (Jones, supra, 103 Cal.App.4th at p. 1145.)
Here, the evidence supports the conclusion Lopez possessed the gun before arriving at the scene of the crime. When Lopez arrived at the scene of the crime, he was in possession of the handgun. There was no evidence presented to support a theory that "fortuitous circumstances" placed the handgun in Lopez's possession. Because the court could find Lopez possessed the handgun before he arrived, his violation of section 12021 was complete before he arrived at the scene. (Jones, supra, 103 Cal.App.4th at p. 1147.) Because his gun possession preceded the carjacking and assault, the court did not violate section 654 by imposing terms for carjacking, assault and the gun possession. (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1413; Jones, supra, at p. 1147.)
Lopez relies on Bradford, supra, 17 Cal.3d 8, for the proposition the court erred punishing him for being a felon in possession of a firearm. However, Bradford does not assist Lopez. In Bradford, the evidence showed that the defendant obtained the firearm by wresting it from a police officer a moment before shooting the officer with it. (Id. at pp. 13, 22-23.) Here, by contrast, the evidence is clear that Lopez arrived at the scene with the handgun and left with it. This alone was sufficient for the court punish Lopez for being a felon in possession of a firearm. (Jones, supra, 103 Cal.App.4th at p. 1145.)
III. CONSECUTIVE TERM SENTENCES
Lopez contends that under Cunningham v. California (2007) 547 U.S. 270, the imposition of a consecutive sentence on count 2 based upon facts not found by a jury or admitted by him violated his Sixth Amendment right to a jury trial. However, our Supreme Court has held Cunningham is inapplicable to a court's decision to impose consecutive sentences. (People v. Black (2007) 41 Cal.4th 799, 820-823.) We must follow the holding of our high court on this issue. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962)57 Cal.2d 450, 455.)
IV. STAY OF THE PRIOR PRISON TERM ENHANCEMENT
Lopez asserts the court erred by staying, rather than striking, the prior prison term enhancement. The People agree and request that we modify Lopez's sentence to reflect that his prior prison term enhancement is stricken. We conclude Lopez and the People are correct that the court's order staying imposition of the prior prison term enhancement is an unauthorized sentence, and we therefore shall correct it on appeal by modifying the judgment and striking the prior prison term enhancement.
A. Background
At sentencing, Lopez admitted serving a prior prison term within the meaning of section 667.5, subdivision (b). The court then stayed imposition of the one-year enhancement under section 654, referring to People v. Jones (1993) 5 Cal.4th 1142.
B. Analysis
The court erred by staying the prior prison term enhancement. An enhancement under section 667.5 cannot be stayed. (See People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) A prior prison term enhancement must be imposed or stricken. (§ 1385.) The staying of the prior prison term enhancement therefore constituted an unauthorized sentence. An unauthorized sentence discovered by an appellate court is subject to correction. (People v. White Eagle, supra, 48 Cal.App.4th at p. 1521.) It is clear by the trial court's reference to People v. Jones, supra, 5 Cal.4th at p. 1153 (one prior conviction cannot be used to impose a serious felony enhancement under section 667, subdivision (a)(1), and a prior prison term enhancement under section 667.5, subdivision (b)), that it did not intend to impose the prior prison term enhancement, but intended to stay it. Accordingly, we strike this enhancement. In light of the trial court's obvious intent, it is unnecessary to remand for resentencing to enable the trial court to explicitly exercise its discretion. Such a remand would be a wasteful use of judicial resources. However, we will direct the trial court to amend the abstract of judgment to reflect the prior prison term enhancement is stricken and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
DISPOSITION
The prior prison term enhancement is stricken. The trial court is directed to amend the abstract of judgment accordingly and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment, as so modified, is affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.