Opinion
2d Crim. No. B293482
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. ERICK MEDRANO, Defendant and Appellant.
Lori E. Kantor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Idan Ivri, Acting Supervising Deputy Attorney General, Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2015022964)
(Ventura County)
Erick Medrano appeals his conviction, by jury, of attempted willful, deliberate and premeditated murder (Pen. Code §§ 664/187, subd. (a)) and of assault with a firearm. (§ 245, subd. (a)(2).) The jury also found true enhancement allegations that appellant committed both offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that he personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and that he personally inflicted great bodily injury. (§ 12022.7.) Appellant admitted that he had two prior convictions, one of which qualified as a serious felony.
All further statutory references are to the Penal Code.
The trial court sentenced appellant to a total term in state prison of 29 years to life. It awarded appellant 1181 actual days of presentence custody credit but concluded he was not entitled to presentence conduct credits. It later struck the fines and fees imposed, based on appellant's inability to pay.
The term for the attempted murder conviction was calculated as follows: an indeterminate term of 7 years to life, doubled to 14 years as a second strike, plus 10 years on the gang enhancement, plus 5 years for the prior serious felony enhancement. The trial court struck the 25-year gun use enhancement and the one-year prison prior. It imposed an 8-year term for the assault conviction. That term and all related enhancements were stayed pursuant to section 654. --------
Appellant raises only two sentencing issues on appeal. First, he contends the trial court erred when it refused to award him 177 days of presentence conduct credit. Second, he contends the matter should be remanded so the trial court can exercise its discretion under the recently amended section 667 to dismiss the five-year prior conviction enhancement. Respondent correctly concedes appellant is entitled to 177 days of presentence conduct credit. However, respondent contends, remand is not required because the trial court has already stated it would not strike the five-year enhancement. We will modify the judgment to award presentence conduct credit. In all other respects, we affirm.
Facts
In July 2015, Fernando and Nancy Garibay rented a party bus to take a group of guests from their home in Santa Paula to the Universal CityWalk for a birthday celebration. Appellant was one of the guests. The group spent a few hours at CityWalk and then took the chartered bus back to Santa Paula. Appellant fell asleep during the ride. While he was asleep, Jose Baez, another guest, yelled something at appellant and then hit him. The hosts and other guests separated the two men and tried to calm everyone down. Appellant borrowed another guest's cell phone and made some calls during the ride.
When the group returned to Santa Paula, an SUV was waiting. Appellant walked over to it and obtained a firearm from the occupants. He approached Baez who put his hands up. Appellant shot at Baez at least five times. He succeeded in hitting him only once, on a finger.
Fernando Garibay got off the bus when he heard gunshots. He saw appellant with a gun in his hands running toward the bus. Garibay grabbed appellant as he was running by and threw himself on top of appellant. The two men began fighting for the gun. During the scuffle, appellant shot Garibay in the leg.
A huge fight erupted as multiple people piled on appellant, who was on the ground. Several people hit appellant, tried to restrain him and tried to get the firearm from him. Appellant was nevertheless able to fire five to seven more times. He eventually lost control of it. But he was able to escape and run to the waiting SUV. The driver helped appellant and his associate into the SUV and then quickly drove away.
Appellant's defense was that he never intended to kill anyone. He was angry when Baez hit him, but did not think he had to retaliate. After Baez hit him, appellant used the phone to set up a meeting with Frank Anaya, a friend who belongs to the same gang as Baez. Once appellant arrived in Santa Paula, he and Anaya looked for Baez but couldn't find him. Appellant found Baez only after Anaya left. Baez had a firearm and shot once at appellant. Appellant shot back while running away from Baez. He did not notice the crowd by the party bus because he was looking at the ground. Appellant let go of his firearm as soon as he was tackled by Garibay. The next thing appellant remembered was waking up in the hospital.
Discussion
Presentence Conduct Credits
Appellant contends he is entitled to an additional 177 days of presentence conduct credit. Respondent correctly concedes the point. The trial court declined to award conduct credits because, "'I thought on a life term there are no [conduct] credits.'" This is incorrect.
Appellant was convicted of attempted murder, a violent felony. (§ 667.5, subd. (c)(12).) A defendant who has been convicted of a violent felony may accrue presentence conduct credits for no more than 15 percent of the actual period of confinement. (§§ 4019, 2933.1, subds. (a), (c).) This is true even where the defendant receives an indeterminate life sentence. (People v. Brewer (2011) 192 Cal.App.4th 457, 464.)
Appellant was awarded 1181 days of actual presentence custody credit. He is also entitled to 177 days of conduct credit, which equals 15 percent of 1181 days. We will direct the trial court to modify the judgment accordingly.
Prior Serious Felony Conviction Enhancement
Appellant contends the matter should be remanded to permit the trial court to exercise its discretion to strike the five-year enhancement imposed for his prior serious felony conviction. At the time of appellant's sentencing in October 2018, the trial court had no authority to strike or dismiss an enhancement proven under former section 667, subdivision (a)(1). (People v. Valencia (1989) 207 Cal.App.3d 1042, 1045-1047.) Senate Bill No. 1393 (2017-2018 Reg. Sess.) removed this prohibition by amending sections 667, subdivision (a) and 1385 to give trial courts discretion to strike or dismiss prior serious felony conviction enhancements in "furtherance of justice." The parties agree the amendments apply to appellant because the judgment against him is not yet final.
Remanding for resentencing, however, is unnecessary. "We are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement' even if it had the discretion. [Citation.]" (People v. Jones (2019) 32 Cal.App.5th 267, 272-273 (Jones).)
At appellant's sentencing, the trial court exercised its discretion and declined to impose the longest possible sentence. It refused to strike appellant's prior strike, resulting in a second strike sentence. It imposed the 10-year gang enhancement (§ 186.22, subd. (b)(1)), but struck the 25-year gun use enhancement. (§ 12022.53, subd. (d).) In doing so, the trial court explained that it wanted to give appellant a realistic opportunity for parole. "If I impose that enhancement, you are never getting out and I know it. I want to give you the opportunity to earn your way out. They are not just going to let you out. I am giving you a shot by striking that 25-year enhancement."
The trial court then considered the five-year prior conviction enhancement. It stated, "The Court is going to impose the five-year enhancement pursuant to 667(a). I have no discretion. Even if I had discretion, I would not exercise it. The Court is going to exercise its discretion as to the [one-year prior prison term enhancement, § 667.5, subdivision (b)] and strike that."
These comments demonstrate the trial court intended to impose a lengthy prison sentence, but also to leave appellant with a realistic possibility of being paroled. Imposing the five-year enhancement term is consistent with that intention.
We conclude the trial court has clearly indicated it would not have stricken the five-year prior had it had discretion to do so. A remand for resentencing would be futile. (People v. Franks (2019) 35 Cal.App.5th 883, 892; Jones, supra,32 Cal.App.5th at p. 273.)
Disposition
Appellant is entitled to an additional 177 days of presentence conduct credit. The trial court is ordered to modify the judgment to award an additional 177 days of presentence conduct credit. It is further ordered to prepare an amended abstract of judgment reflecting the additional credits and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J.
TANGEMAN, J.
Ryan Wright, Judge
Superior Court County of Ventura
Lori E. Kantor, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Idan Ivri, Acting Supervising Deputy Attorney General, Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.