Opinion
H023308.
10-21-2003
THE PEOPLE, Plaintiff and Respondent, v. CARLOS LUGO et al., Defendants and Appellants.
Carlos Lugo, Jr. and Antonio Ray Lebya were tried together for various offenses, including robbery and murder. Lugo was convicted of three counts of second-degree robbery. (Pen. Code, § 211.) Personal use enhancements were found true. (§ 12022.53, subd. (b).) Lebya was convicted of first degree murder (§ 187), one count of shooting at an occupied motor vehicle (§ 246), one count of discharging a firearm from a vehicle (§ 12034, subd. (d)), and three counts of second degree robbery. Gang, personal use, and arming enhancements were found to be true. (§§ 186.22, subd. (b)(1), 12022.53, subds. (c) & (d), 12022, subd. (a)(1).) Lugo was sentenced to 19 years, four months in state prison. Lebya was sentenced to 66 years to life in state prison.
All further unspecified statutory references are to the Penal Code.
We will modify the judgment to strike the section 12022.53, subdivision (c) enhancement imposed upon Lebya, to strike the 10 year gang enhancement imposed upon Lebya and impose the 15 year minimum parole eligibility of section 186.22, subdivision (b)(5), and order that Lugos restitution fine be reduced to $ 10,000. (§ 1202.4.) As modified, we affirm the judgments of conviction.
Defendant Lugo also petitions for a writ of habeas corpus, which we ordered considered with his appeal. We dispose of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 24(b)(4).)
FACTS AND PROCEDURAL BACKGROUND
Lugo, Leyba and Richard Islas belonged to Salinas East Market (SEM), a Norteno criminal street gang. On June 4, 2000, they decided to commit a robbery. They planned to rob concert promoters at the rodeo grounds.
The threesome traveled to the rodeo grounds in a maroon Mitsubishi owned by Lugos fathers finance, Patricia Cabrera. Islas had a .22 caliber handgun in his waistband. Lebya had a .30 caliber sawed off rifle in a suitcase. Lugo had a .40 caliber gun in his waistband. They also brought changes of clothing, a police scanner, gloves and knit caps.
After arriving at the rodeo parking lot, they scanned the area for 30 to 40 minutes. About 5:00 p.m., they saw the individuals they suspected of having the money. The individuals were entering a large burgundy car. Lugo, Lebya and Islas followed the car to the Laural Inn and then parked their vehicle at a nearby convenience store.
Islas and Lugo got out of the car with the beanies, hodds, gloves and weapons.
To facilitate the getaway, Lebya stayed inside the vehicle. After walking down a breezeway, Islas and Lugo paused to pull down their hoods and beanies, and remove their guns.
Priscliano Villanueva had driven the burgundy car to the Laurel Inn. Jaime Narango Munoz, Jose Lara and Don Pepe were passengers. Villanueva had little money with him because he was not going to get paid until he arrived in Los Angeles.
When Villanueva exited the burgundy car, Islas put a gun to his back, demanded money, and threatened to kill him. Islas demanded that Villanueva lay on the ground face down. Villanueva complied, and Islas demanded the car keys. Villanueva threw them over his body.
At gunpoint, Islas and Lugo ordered Munoz to get the keys and open the car trunk. Munoz complied, and Islas removed two or three duffel bags from the trunk. Lugo chased Lara up some stairs and took Laras briefcase.
Islas and Lugo ran back to the Mitsubishi. Lebya had moved the car closer to the breezeway and had the car doors open. Islas and Lugo got in the car and they drove away. Shortly thereafter, they passed a police car.
Marina Marquez saw two men wearing hoods running from the Laurel Inn to a car. Finding the situation suspicious, Marquez wrote down the vehicle license plate number. Marquez later saw a man at a police car. The man she saw was Munoz, who had driven into the street and stopped the police. Marquez gave the license number to the police.
Leyba, Lugo, and Islas heard their license plate number broadcast over the police scanner. They drove to the apartment of Lugos cousin, Joe Montoya, believing they would be safe there. They got out of the car, wiped away their fingerprints, and took the luggage into the apartment. A search of the luggage revealed no money. Islas asked where the guns were. They realized they had left the guns in a briefcase in the parking lot by the car. Islas was angry that they had left the guns behind. They went back and brought the guns upstairs.
Islas called his girlfriend, Maria Higuero, and asked her to pick them up. Higuero was 17 years old and seven months pregnant with Islass child. Borrowing her aunts green Nissan Sentra, Higuero picked the threesome up outside the apartment complex gate. Leyba was carrying the suitcase with the guns.
Islas sat in the passenger seat, Lugo sat behind Islas, and Leyba sat behind Higuera. Lugo, Islas and Leyba discussed hearing their license plate number broadcast over the police scanner. They discussed being angry that the robberies had not gone as planned. They decided to get something to eat.
As they drove down the street, Higuera accidentally got in the left hand turn lane. When they were stopped at the intersection, Leyba pointed out a man in a black Honda. Leyba said the man looked like a "scrap," a derogatory term for a Sureno, a rival gang. After the light changed, and they turned left onto Laurel, Lebya told Higuera to slow down so they could verify the mans identity. Higuero slowed down and pulled to the right. The Honda approached on the left. Lugo and Lebya tried to get the mans attention by waving and yelling at him. Higuero told them to stop. She pulled up Libyas window with an automatic switch. Leyba put the window back down.
As the cars approached a red light at the next intersection, they slowed down. Lebya pulled out his .30 caliber rifle and shot at the Honda. Islas told Higuera, "Hey, get down," and pulled her down. Several shots were fired. Leyba said, "I got him. Go, go" and stopped firing.
The driver of the Honda, Mario Magana, was shot in the head and died. He was a member of the Hebron Street Gang, a Sureno gang and a Norteno gang rival.
Lugo and Lebya were charged with first-degree murder, two counts of shooting at an occupied motor vehicle, discharging a firearm at a vehicle, and three counts of second-degree robbery. Gang and personal use enhancements were alleged in connection with the murder, in connection with one count of shooting at an occupied motor vehicle, and in connection with discharging a firearm from a vehicle. A personal use enhancement was alleged in connection with all robbery counts.
Lugo was convicted of three counts of robbery. The personal use enhancements (§ 12022.53, subd. (b)) were found to be true. Lugo was acquitted of the remaining counts.
Lebya was convicted of first degree murder, one count of shooting at an occupied motor vehicle, discharging a firearm from a vehicle, and convicted of three counts of robbery. In connection with the murder, shooting at an occupied vehicle, and discharging a firearm from a vehicle, the gang (§ 186.22, subd. (b)(1)) and personal use enhancements (§ 12022.53, subds. (c) & (d)) were found true. Arming enhancements were found true as to the robbery counts. (§ 12022, subd. (a)(1).)
Lugo was sentenced to 19 years, four months in state prison. Lebya was sentenced to 66 years to life in state prison.
DISCUSSION
Lugo joins in Lebyas arguments on appeal and Lebya joins in Lugos appellate arguments. (Cal. Rules of Court, rule 13, subd. (a)(5).) Where applicable, our conclusion as to each defendant applies to the other as well.
A. Accomplice
The jury instructions defined an accomplice as "a person who is subject to prosecution for the identical offense charges [sic] in Counts One through Seven against the defendant on trial by reason of aiding and abetting . . . ." According to Lebya, this instruction was incorrect because the seven charges in the case involved two separate incidents, and complicity in either of the two incidents was sufficient to make a witness an accomplice, yet the instruction required the jury to find that the witness was potentially subject to prosecution in all seven counts before the jury could find that the witness was an accomplice.
According to the People, this issue was waived because the defense is required to object if an instruction is incomplete or too general. (See People v. Andrews (1989) 49 Cal.3d 200, 218.) According to Lebya, waiver does not apply because the instruction was not simply incomplete, or too general, but was in fact incorrect.
Assuming arguendo that the issue was not waived, we conclude that the error in the jury instruction was harmless. The harmlessness of the error is revealed once we closely examine Lebyas contention. According to Lebya, the instructional error "permitted the jury to find Mr. Lebya guilty as to the first three counts [the murder and related counts] based on the uncorroborated testimony of two accomplices, in that the instruction misled the jury into finding that one or both were not accomplices when in fact they were, thereby permitting the jury to convict based on that testimony without corroboration." Specifically, Lebya asserts that a properly instructed jury would almost certainly have found Islas to have been involved in all counts and "the erroneous instruction therefore likely had no impact on the jurys evaluation of his testimony as an accomplice." However, Lebya maintains that Higuera, who was not an accomplice to the robbery counts, could have been considered an accomplice to the murder counts. In Lebyas view, the instructional error would have prevented the jury from identifying Higuera as an accomplice to the murder counts, and if Higuera was an accomplice to the murder counts, then Higuera could not corroborate the testimony of Islas, since Islas was also an accomplice.
Lebyas argument is without merit. The argument is flawed because it assumes the evidence supported a finding that Higuera was an accomplice to the murder counts. Examination of the record, however, reveals that the evidence supported no such finding. In particular, Higuera testified that she had not seen the guns taken out of the briefcase. Higuera testified that she did not know there would be a shooting. When Lugo and Lebya yelled at the driver of the Honda, Higuera told them to stop. Higuera also pulled up Lebyas car window with an automatic switch. To be liable as an accomplice, the individual must aid, promote, encourage or instigate a crime, knowing of the unlawful purpose and intending to assist in the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 560.) Since the evidence did not show Higuera had the requisite knowledge and intent to be considered an accomplice, there was no risk the instruction wrongly prevented the jury from finding that Higuera was an accomplice, and therefore no prejudice flowing from the instruction.
B. Robbery Counts
Lebya argues that one of his robbery convictions must be reversed because he was convicted of three counts of robbery even though there were only two robbery victims. As articulated by Lebya, "there is no evidence Mr. [Munoz] had a property interest in the two items taken from the trunk or in the bag taken from Mr. Lara. All the evidence shows is that Mr. [Munoz] obtained from Mr. Villanueva a ride from the rodeo grounds to the Laurel Inn. As a mere tag-along, he had no property interest whatsoever in Mr. Villanuevas briefcase or luggage taken from the trunk, nor did he have any property interest in Mr. Laras luggage taken from Mr. Lara on the stairway. . . . Thus, one count of robbery should be reversed due to insufficiency of the evidence."
A robbery victim must have either actual or constructive possession of the property taken. (People v. Nguyen (2000) 24 Cal.4th 756, 764.) "It is not necessary that the victim of a robbery also be the owner of the goods taken." (People v. Estes (1983) 147 Cal.App.3d 23, 26.) " ` "Robbery is an offense against the person; thus a store employee may be the victim of a robbery even though he is not its owner and not at the moment in immediate control of the stolen property." [Citation.] " (People v. Nguyen, supra, 24 Cal.4th at p. 761.) "[M]ore than one person may constructively possess personal property at the same time and be a victim of the same offender. [Citation.]" (People v. Estes, supra, 147 Cal.App.3d at p. 27.)
In People v. Moore (1970) 4 Cal.App.3d 668, 670, an employees mother entered a business during a robbery. The defendant ordered her to remove money from a cash register and give it and a moneybag to the defendant. Upholding defendants robbery conviction, Moore reasoned: "It is no defense to a charge of robbery (or of theft) that the victim was not the true owner of the property taken. Theft can be committed against one who was himself a thief. [Citations.] It follows that, once Mrs. Hall exercised dominion over the money, whatever her motivation in so doing, she became, insofar as defendant was concerned, the person in possession thereof, and she was properly designated in the information as the immediate victim of his robbery." (Id. at pp. 670-671.)
In this case, the evidence supported the conclusion that Munoz was a robbery victim. Once Munoz was ordered to use the keys to open the trunk, Munoz exercised dominion and control over the car, and thereby had possession of the items in the trunk. Viewing the evidence in the light most favorable to the judgment, we conclude that sufficient evidence supported Lebyas conviction for three counts of robbery.
C. Ten-Year Gang Enhancement
The trial court imposed a 10-year gang enhancement term under section 186.22, subdivision (b)(1). In Lebyas view, this was improper because he "was sentenced to life-top terms, and a gang enhancement is not properly imposed in such a case in that the underlying felony, murder in this case, is `punishable by imprisonment in the state prison for life. " (Quoting § 186.22, subd. (b)(5).) As explained below, we conclude the trial court erred in imposing the 10 year gang enhancement.
At the time of the offenses, section 186.22 provided, in pertinent part: "(b)(1) Except as provided in paragraph (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term . . . . If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years. . . . (5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served." (Italics added.)
Under section 190, subdivision (a), first degree murder is punishable by imprisonment for 25 years to life. Section 190, subdivision (e) provides "[a] person sentenced pursuant to this section shall not be released on parole prior to serving the minimum term of confinement prescribed by this section." According to the People, section 186.22(b)(5) cannot constitutionally apply because the 15-year statutorily adopted minimum term is inconsistent with the 25-year minimum term adopted by the voters. In the Peoples view, since subdivision (b)(5) does not apply, the 10-year determinate term specified in subdivision (b)(1) is the applicable provision.
People v. Herrera (2001) 88 Cal.App.4th 1353 supports the Peoples position. In Herrera, the court addressed similar issues. In that case, the defendant was convicted of first-degree murder, and sentenced to 25 years to life. Defendant was also sentenced to three years pursuant to the section 186.22 enhancement. On appeal, defendant argued that the three-year sentence could not be imposed, and that the effect of the section 186.22 finding was that he was required to serve a 15-year minimum term before he could be considered for parole. Defendant argued, " `When the criminal street gang enhancement is applied to punishments of imprisonment for life, only the minimum parole term provided by section 186.22, subdivision (b)(4) [now subd. (b)(5)], and not the determinate enhancement provided by section 186.22, subdivision (b)(1), is applicable . . . . Accordingly, it was error to add the determinate street gang enhancements to [defendants] sentence and the enhancements must be stricken and replaced with the minimum period of imprisonment prior to parole of 15 years. " (Id . at p. 1357.)
When Herrera was decided, the substance of current section 186.22, subdivision (b)(5) was set forth in subdivision (b)(4). For ease of reference, we refer to the subdivisions as currently numbered.
Rejecting defendants argument, Herrera decided "We conclude that the 15-year minimum term specified in former section 186.22, subdivision ([5]), which in 1999 was the result of a legislative enactment, cannot reduce the 25-year-to-life term specified in section 190, subdivision (a) and (e), which was the result of an initiative approved by the voters. Because section 190 was the result of an initiative enactment, it could only be amended with approval of the voters. [Citations.]" (People v. Herrera, supra , 88 Cal.App.4th at p. 1359.) Thus, Herrera found that under section 190, subdivision (a) "the voters intended a first degree murderer serve a 25-year term before being paroled." (Id. at p. 1363.) Because the predecessor to section 186.22, subdivision (b)(5) was the result of a legislative enactment, it "could not contravene section 190, subdivision (a)[s] requirement that defendant serve 25 years before being considered for parole which was the product of a voter approved initiative. [Citations.]" (Id . at p. 1363.) Consequently, Herrera rejected the defendants request that the three-year sentence be vacated.
Herrera disagreed with People v. Ortiz (1997) 57 Cal.App.4th 480. Ortiz held that when the section 186.22 minimum 15-year parole eligibility applied, the determinate enhancement in section 186.22, subdivision (b)(1) cannot apply. In Ortiz, the defendant was convicted of murder, second degree robbery, and various vicarious firearm and criminal street gang enhancements were found true. The defendant was sentenced to a life term and the trial court imposed both a gang enhancement minimum 15-year parole eligibility and also a three-year gang enhancement. Ortiz concluded that "[n]othing in Penal Code section 186.22, subdivision (b)([5]) suggests this extended parole eligibility limitation period should be combined with an additional determinate term. To the contrary, subdivision (b)(1) specifically excepts prisoners serving a life sentence from the additional term. [Citation.]" (People v. Ortiz, supra 57 Cal.App.4th at pp. 485-486.)
When Ortiz was decided, the substance of section 186, subdivision (b)(5) was set forth within section 186.22, subdivision (b)(4). For ease of reference, we refer to the subdivisions as currently numbered.
In rejecting Ortiz, Herrera stated that Ortiz "holds that a first degree murderer who receives a sentence of 25 years to life is eligible for parole after 15 years. Section 190, subdivision (a), an enactment of the voters, requires that the defendant serve at least 25 years of confinement. That is exactly what section 190, subdivision (a) states and it so stated on March 12, 1995, when the homicide in Ortiz was committed. [Citation.] Parole after 15 years would be inconsistent with the clearly expressed decision of the voters that no release occur until after at least 25 years of confinement have expired. [Defendants] reasoning that he can receive a 25-year-to-life sentence but need only wait 15 years for release on parole is without merit—he must serve 25 years, not 15 years of confinement before release on parole is possible." (People v. Herrera, supra, 88 Cal.App.4th at p. 1365.)
A dissent was filed in Herrera. The dissent pointed out that the Herrera defendant never argued that the 15 year minimum term superseded section 190s 25 year minimum term. The dissent also questioned the majoritys interpretation of section 186.22s language, stating that "This language is crystal clear. Where a defendant receives a life sentence, the 15 year minimum term applies instead of the one-, two- or three-year enhancement. [Citation.]" (People v. Herrera, supra, 88 Cal.App.4th at pp. 1368-1369 (conc. & dis. opn. of Grignon, J.).) As to the effect of 15-year minimum term, the dissent reasoned, "There is no statutory provision prescribing a mandatory effect. The 15-year minimum term is not a sentence enhancement, but rather is an alternate penalty for the underlying felony conviction. [Citation.] Since the penalty for the underlying felony is greater than the alternate gang minimum term, the gang minimum term has no mandatory effect. However, it is one of the considerations the Board of Prison Terms may take into account when granting or denying parole to a prisoner eligible for parole." (Id. at pp. 1369-1370, fn. omitted.)
Recently, in People v. Harper (2003) 109 Cal.App.4th 520, the Fourth Appellate District, Division One considered this issue. Harper disagreed with Herrera, and aligned itself with Ortiz and the Herrera dissent. The Harper defendant was convicted of first degree murder and it was found that the crime was committed for the benefit of a criminal street gang. Like Lebya, the Harper defendant was sentenced to 25 years to life for the murder plus a 10-year consecutive criminal street gang enhancement pursuant to section 186.22. The Harper defendant argued that the 15-year minimum parole eligibility of section 186.22, subdivision (b)(5) should have been imposed instead of the criminal street gang enhancement of section 186.22, subdivision (b)(1)(C). Harper agreed with defendants contention, and held that the trial court erred in imposing the 10-year criminal street gang enhancement.
In so deciding, Harper began by analyzing the words of section 186.22. Emphasizing standard principles of statutory construction, Harper observed that the Legislatures choice of words is the best indicator of the Legislatures intent. Harper stressed that the statutory language cannot be ignored in an effort to vindicate a courts perception of the Legislatures reason for enacting the law. Applying these interpretative rules, Harper decided: "The plain words of section 186.22, subdivision (b)(1) state that when a determinate term is imposed, `[e]xcept as provided in paragraphs (4) and (5), then one of the determinate, consecutive enhancements applies (such as the 10- year enhancement for a violent felony committed to further a criminal street gang). (§ 186.22, subd. (b)(1), (b)(1)(C).) Section 186.22, subdivision (b)(5) (referred to in subdivision (b)(1) as an exception to the general rule of determinate, consecutive enhancements) clearly provides that when the underlying `felony [is] punishable by imprisonment in the state prison for life, then the individual `shall not be paroled until a minimum of 15 calendar years have been served. (§ 186.22, subd. (b)(5).) In other words if, as here, an indeterminate life term is imposed, then the 15-year minimum parole eligibility applies rather than a determinate, consecutive enhancement. As did the court in People v. Ortiz (1997) 57 Cal.App.4th 480, 486 . . . (Ortiz), we find the statutory language to be `clear and unambiguous and `requir[ing] no interpretation or construction. " (People v. Harper, supra, 109 Cal.App.4th at p. 525.)
In rejecting the analysis of the Herrera majority, Harper stated: "We find the reasoning of the Herrera dissent to be persuasive. As pointed out by both the Herrera dissent and the majority in Ortiz, the language of section 186.22 is clear: determinate enhancements are to be imposed only when a determinate term is imposed. The 15-year parole minimum is to be imposed when the defendant has been sentenced to a life term. The Herrera majority improperly ignored the actual words of the statute in an attempt to vindicate its perception of the Legislatures purpose. To reach their result, the Herrera majority added a term to the statute—that is, an exception to the section 186.22, subdivision (b)(5)s imposition of a 15-year minimum parole eligibility when the underlying life term has more than a 15-year minimum parole eligibility. Certainly, such a provision would be consistent with the Legislatures intent to more severely punish gang related crimes. However, nothing in the language of section 186.22, subdivision (b)(5) states there is an exception to the alternate gang penalty of a 15-year minimum parole eligibility when a life term with a longer minimum parole eligibility is imposed. While there may be a certain logic to the punishment scheme devised by the Herrera majority, it is not the punishment scheme contained in the statute. We believe the Herrera majority improperly engaged in rewriting the statute. Rewriting a statute to more accurately reflect a legislative intent to impose greater punishment for gang related crimes is a task for the Legislature, not for the courts." (People v. Harper, supra, 109 Cal.App.4th at p. 527.)
Harper concluded that "the trial court erred in imposing a 10-year gang enhancement. Because Harper was sentenced to a life term, section 186.22 mandates that the alternate punishment of a 15-year minimum parole eligibility be imposed. In this case, the 15-year minimum parole eligibility has little effect since it is subsumed in the 25-year minimum parole eligibility imposed for the underlying murder conviction. (See § 190, subd. (e).) [¶] We order stricken the 10-year gang enhancement and the abstract of judgment modified to reflect the imposition of the alternate penalty." (People v. Harper, supra, 109 Cal.App.4th at p. 527.)
After considering these authorities, we believe Harper, the Herrera dissent, and Ortiz represent the better view. As those decisions stressed, the language of section 186.22 is clear: when a determinate term is imposed, then one of the determinate, consecutive terms is applicable. But section 186.22, subdivision (b)(5) sets out an exception for felonies punishable in the state prison for life, and provides that in those circumstances, the defendant "shall not be paroled until a minimum of 15 calendar years have been served." (§ 186.22, subd. (b)(5).)
Further, we note that the Herrera majority assumed that the 15-year minimum parole term within section 186.22, subdivision (b)(5) would supersede the 25-year minimum parole eligibility imposed when the defendants underlying conviction is for murder. (See § 190, subd. (e).) Like the court in Harper, which was presented with a scenario similar to ours, we disagree that imposition of the 15-year minimum parole eligibility cancels out the 25-year minimum parole eligibility of section 190, subdivision (e). Although the trial court here should have imposed the 15-year minimum parole eligibility under subdivision (b)(5), imposition of the 15-year minimum parole eligibility ultimately has little effect because it is subsumed into the 25-year minimum parole eligibility imposed for defendants underlying murder conviction.
Accordingly, we believe Harper represents the better approach and therefore conclude that the 10-year gang enhancement imposed should be stricken, and the abstract of judgment amended to reflect the striking of the enhancement and the 15-year minimum parole eligibility of section 186.22, subdivision (b)(5).
In People v. Montes (2003) 31 Cal.4th 350, at page 362, footnote 15, our Supreme Court recognized the conflict in the Courts of Appeal on the proper application of section 186.22(b)(5) when the underlying felony itself provides for a term of 15 years to life, 25 years to life, or life without the possibility of parole (See, e.g.,People v. Harper, supra, 109 Cal.App.4th 520; People v. Ortiz, supra, 57 Cal.App.4th 480, andPeople v. Herrera, supra, 88 Cal.App.4th 1353. The Supreme Court declined to express an opinion, however, as that specific issue was not before the court in Montes.
D. Section 12022.53(c) Finding
The jury found true enhancements under section 12022.53, subdivisions (c) and (d). The trial court imposed a sentence of 25 years to life for the subdivision (d) enhancement and stayed the subdivision (c) enhancement. Relying upon section 12022.53, subdivision (f), Lebya contends the section 12022.53, subdivision (c) finding should have been stricken instead of stayed. We agree.
Under section 12022.53, subdivision (f), "[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."
Although the People acknowledge section 12022.53, subdivision (f), they argue that California Rules of Court, rule 4.447 trumps the statute, and prevents the striking or dismissal of enhancements when there are limitations upon imposing multiple enhancements.
California Rules of Court, rule 4.447 provides: "No finding of an enhancement shall be stricken or dismissed because imposition of the term is either prohibited by law or exceeds limitations of the overall aggregate term, such as limits on subordinate terms, or limitation on the imposition of multiple enhancements. The sentencing judge shall impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and shall thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay shall become permanent upon the defendants service of the portion of the sentence not stayed."
A similar contention was recently rejected in People v. Bracamonte (2003) 106 Cal.App.4th 704, where the People also argued that California Rules of Court, rule 4.447 authorized the staying of enhancements. Rejecting this contention, Bacamonte observed, "No case has expressly applied this rule to a situation involving an indeterminate life term and the Advisory Committee Comment refers to enhancements only in the context of the Determinate Sentencing Act (DSA). [Citations.]" (Id. at p. 710; see also People v. Felix (2000) 22 Cal.4th 651, 654-659; People v. Byrd (2001) 89 Cal.App.4th 1373, 1381.) Additionally, under rule 4.403, "These rules apply only to criminal cases in which the defendant is convicted of one or more offenses punishable as a felony by a determinate sentence imposed pursuant to chapter 4.5 (commencing with 1170) of Title 7 of Part 2 of the Penal Code." In the Advisory Committee comment, rule 4.403, it is stated: "The [determinate] sentencing rules do not apply to offenses carrying a life term or other indeterminate sentences for which sentence is imposed under new section 1168." Based upon these authorities, we agree that rule 4.447 does not apply because the 25 years to life sentence imposed upon Lebya under section 12022.53, subdivision (c) reflects an indeterminate term.
All unspecified rule references are to the California Rules of Court.
Pursuant to section 12022.53, subdivision (f), we therefore agree with Lebyas argument that the section 12022.53, subdivision (c) finding should have been stricken.
We note that People v. Oates (2002) 97 Cal.App.4th 1172 reached a similar result but review was granted in that case on July 24, 2002 (S106796).
The dissent relies onBracamonte, supra, 106 Cal.App.4th at p. 711, as mod. 107 Cal.App.4th 533c-d, for the position that the court should stay, rather than strike the enhancement under 12022.53, subdivision (c). We decline to follow Bracamontes reasoning on this issue. In Bracamonte, the court was internally inconsistent, because it stayed enhancements imposed pursuant to section 12022.53, while it struck enhancements imposed pursuant to section 12022.5. In staying the enhancements pursuant to section 12022.53, the court relied on the prohibition against striking enhancements stated in the statute. (Bracamonte, supra, 106 Cal.App.4th at p. 711; § 12022.53, subd. (h).) However, both sections 12022.53 and 12022.5 contain identical language prohibiting the striking of an enhancement. The Bracamonte court deemed the prohibition against striking enhancements as a requirement that the section 12022.53 enhancements be stayed, rather than stricken. However, the court chose not to follow an identical prohibition in striking the 12022.5 enhancements. (Bracamonte, supra, 106 Cal.App.4th at p. 711, as mod. 107 Cal.App.4th 533c-d.) Because of this inconsistency, we decline to follow this reasoning.
Section 12022.5, subdivision (c), states, in relevant part: "The court shall not strike an allegation under this section or a finding bringing a person within this section." (§ 12022.5, subd. (c).) Section 12022.53, subdivision (h), contains identical language to that stated above.
The statutory scheme clearly intends that when multiple enhancements are found to be true, only one enhancement should be imposed that will result in the defendant receiving the longest term of imprisonment. (§ 12022.53, subd. (f).) Striking the additional enhancements under section 12022.53, rather than staying a prison term imposed as to them, is the more reasonable result in light of the statutory scheme. (See, e.g., Metropolitan Water Dist. v. Adams (1948) 32 Cal.2d 620, 630-631 [if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed].)
II. Defendant Lugo
A. Motion To Sever
According to Lugo, the trial court wrongly refused to grant his motion to sever the trial of the robberies from the trial of the gang murder. We disagree.
In this case, the threshold requirement for joinder was met. This is because two or more offenses of the same class may, in the trial courts discretion, be consolidated for trial. (§ 954; People v. Musselwhite (1998) 17 Cal.4th 1216, 1243.) Robbery and murder belong to the same class of crime as both involve a common element of assault upon the victim. (People v. Musselwhite, supra, 17 Cal.4th at p. 1243.) Since this case involved robbery and murder counts, the threshold requirement for joinder was satisfied.
"When, as here, the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying defendants severance motion. [Citations.]" (People v. Mendoza (2000) 24 Cal.4th 130, 160.) To decide if such a showing has been made, we consider the record before the trial court at the time of its ruling. "The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citation.]" (Id. at p. 161.)
Because the four-part test is stated in the conjunctive, joinder may be proper even though the evidence is not cross-admissible. (People v. Ochoa (2001) 26 Cal.4th 398, 423; People v. Musselwhite, supra, 17 Cal.4th at pp. 1244-1246.) So long as the evidence of each charge is so strong that consolidation is unlikely to affect the verdict, joinder is permissible. (People v. Ochoa , supra, 26 Cal.4th at p. 423; People v. Arias (1996) 13 Cal.4th 92, 130, fn. 11.)
Based upon the strength of the Peoples evidence, we conclude joinder was proper. The evidence relating to the robberies was strong, with Islas testifying about the events that transpired. Although Islas was an accomplice, he gained credibility because he was endangering his life by testifying against Lugo and Lebya. Islass testimony was corroborated. Lugos car was identified at the scene of the robbery, and Lugos father confirmed that Lugo had the car all day. The car was found near the residence of Lugos cousin, and was wiped down for fingerprints as described by Islas. Third-party witnesses described the robbery car. Higuero testified that the men were talking about the robbery that they had committed at the Laurel Inn, and that they were upset that their license plate number had been broadcast on the police scanner. The evidence relating to the murder counts was also strong, and the circumstances surrounding the murder were not likely to unusually inflame the jury. Islas described the events, as did Higuero. Given the strength of the prosecutions evidence, this case clearly did not involve a situation where a weak case was joined with a strong case, or another weak case, and therefore joinder was unlikely to have affected the verdict. (People v. Ochoa, supra, 26 Cal.4th at pp. 423-424; People v. Arias, supra, 13 Cal.4th at p. 130, fn. 11.) The trial court did not abuse its discretion in denying the severance motion.
Given this conclusion, we need not decide whether the evidence was cross-admissible. (See People v. Ochoa, supra, 26 Cal.4th at p. 424, fn. 2.)
"Even if a trial courts severence or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the `defendant shows that joinder actually resulted in "gross unfairness" amounting to a denial of due process. [Citation.]" (People v. Mendoza, supra, 24 Cal.4th at p. 162.)
People v. Smallwood (1986) 42 Cal.3d 415, cited by defendant, is distinguishable. Smallwood involved two murders, with special circumstances allegations, the murders occurred seven months apart, and at the time of the severance motion the evidence regarding one of the murders was "extremely weak." (Id. at p. 430.) Williams v. Superior Court (1984) 36 Cal.3d 441 also differs from this case since it involved multiple murders, joinder allowed the charging of a multiple murder special circumstance, and the murders occurred nine months apart.
Lugo has not shown a denial of due process. Although he says the gang evidence was incendiary and may have caused the jury to convict him, the jury was instructed not to consider the gang experts evidence except for the purpose of determining the truth of the gang enhancement. The fact that the offenses were factually separable lessened the likelihood of jury confusion. And Lugos acquittal of the murder-related charges shows the jury weighed the evidence separately as to each charge. Finally, after reviewing the argument of counsel, we reject Lugos contention that counsel was forced to refrain from presenting closing argument in the robbery cases in order to effectively defend against the more serious murder charge. Joinder of the charges promoted judicial economy and did not render Lugos trial grossly unfair.
B. Gang Registration Requirement
As part of his sentence for the robberies, Lugo was ordered to register as a gang member. (§ 186.30.) Emphasizing that no gang evidence was admitted as to the robberies, and that he was acquitted of the charges relating to the murder, Lugo argues the statutory predicates for imposition of the gang registration requirement were not met. He says the gang registration order should be vacated.
Initially, we reject the Peoples argument that Lugo waived this issue by failing to object at sentencing. In People v. Scott (1994) 9 Cal.4th 331, 351, the California Supreme Court decided that claims regarding a trial courts failure to "properly make or articulate its discretionary sentencing choices" were waived in the absence of an objection at the time of sentencing. (Id. at p. 353.) Imposing a registration requirement when the evidence does not support the imposition of such a requirement is not within a trial courts sentencing discretion and amounts to an unauthorized sentence. Objection to an unauthorized sentence may be raised for the first time on appeal. (See, e.g., People v. Franz (2001) 88 Cal.App.4th 1426, 1450.)
Having decided there was no waiver, we next consider the statutory requirements. The gang registration requirement applies "to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses: [¶] (1) Subdivision (a) of Section 186.22. [¶] (2) Any crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true. [¶ (3) Any crime that the court finds is gang related at the time of sentencing or disposition." (§ 186.30, subd. (b).)
In this case, section 186.30, subdivision (b)(3) is the only provision potentially applicable. Section 186.30, subdivision (b)(1) does not apply because Lugo was not convicted of violating section 186.22, subdivision (a). Section 186.30, subdivision (b)(2) does not apply because there was no true finding regarding a section 186.22, subdivision (b) enhancement. Consequently, in this case, imposition of the gang registration requirement is justified only if Lugo was convicted of "[a]ny crime that the court finds is gang related at the time of sentencing or disposition." (§ 186.30, subd. (b)(3).)
At sentencing, the trial court stated: "It is ordered that Mr. Lugo register as a gang member, pursuant to section 186.30." As pertinent here, the trial court also commented that "the court does see Mr. Lugo as a dangerous young man. Its too bad. Its a waste. All of this gang nonsense, which causes so much pain and grief and suffering in all families." Referring to the robberies, the trial court noted that they "occurred as a result of, and during, a well-planned, actually commando-type raid. A raid that constituted the highest of violence. It was a virtual terrorist attack."
The imposition of a registration requirement implies that the court made the necessary finding, and such a finding will be upheld if supported by substantial evidence. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1046.) The evidence here supports the trial courts implied finding that the robberies were gang-related. The testimony established that Lugo belonged to the SEM Norteno gang. The other two individuals present during the robberies, Lebya and Islas, were members of the same SEM gang. Robbery is one of the SEM gangs primary activities. When booked into jail, Lugo became involved in altercation with another inmate, whom he believed was a Sureno. Viewing the record in the light most favorable to the judgment, and indulging in all legitimate inferences, we conclude substantial evidence supported the trial courts implied finding that the robberies were gang-related.
Issues concerning the constitutionality of the registration requirement was recently considered by the California Supreme Court in In re Adrian R. 2003 Daily Journal DAR 942, and is currently pending inIn re Walter S. (2001) 89 Cal.App.4th 946, review granted September 19, 2001, S099120.
BAMATTRE-MANOUKIAN, J., Concurring and Dissenting
I respectfully dissent from the conclusion that the trial court erred by staying the Penal Code section 12022.53, subdivision (c) enhancement. While subdivision (f) allows imposition of "[o]nly one additional term of imprisonment under" section 12022.53 "for each crime," subdivision (h) prohibits striking "an allegation under this section or a finding bringing a person within the provisions of this section." The trial court properly stayed the lesser enhancement. (Accord People v. Bracamonte (2003) 106 Cal.App.4th 704, 711, as mod. 107 Cal.App.4th 533c-d.) I concur with the remainder of the opinion.
C. Section 1202.4 Restitution Fine
Lugo argues, and the People agree, that the $ 11,400 restitution fine imposed was improper because section 1202.4, subdivision (b)(1) limits the amount of the restitution fine to $10,000. We will therefore order that the restitution fine be reduced to $10,000.
III. Cumulative Error
Lebya and Lugo argue that there was cumulative error. In assessing cumulative error, the critical question is "whether defendant received due process and a fair trial." (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) As discussed above, the error in the jury instruction on accomplices was harmless. As there was no other error that would have impacted defendants due process and fair trial rights, there was therefore no cumulative error.
DISPOSITION
The judgment is modified in the following respects: (1) the section 12022.53, subdivision (c) enhancement imposed upon Lebya is stricken; (2) the 10 year gang enhancement imposed upon Lebya under section 186.22 is ordered stricken and the 15 year minimum parole eligibility of section 186.22, subdivision (b)(5) imposed instead; and (3) the $11,400 restitution fine imposed upon Lugo is reduced to $10,000. The trial court is directed to amend the abstract of judgment accordingly and forward a certified copy of the amended abstract to the Department of Corrections. As modified, the judgments of conviction are affirmed.
I CONCUR: PREMO, J.