Opinion
B158775.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. LASHUN PAMELA MORELAND, Defendant and Appellant.
Shawn OLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and Lisa J. Brault, Deputy Attorney General, for Plaintiff and Respondent.
Lashun Moreland appeals from the judgment entered upon resentencing for her convictions of multiple felonies arising from two robbery incidents. She contends that dual enhancements were improperly imposed and that her sentence constitutes cruel and unusual punishment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND n0 .
1. Licea Incident
At approximately 10:20 p.m. on May 23, 1999, Mauricio Licea and his wife, Ana, parked their car at a Ralphs grocery store. Mauricio went into the store while Ana waited in the car. Mauricio returned to the car a few minutes later and as he opened the drivers side door to get in the car, defendant approached him. Mauricio quickly got in the car and shut the door. Defendant stood outside, knocked on the drivers side window, and said something. Mauricio tried to ignore her.
Defendant pulled a gun, pointed it at Mauricio, and motioned for him to open the door. Mauricio did not comply. Defendant then put her hand in the drivers side wing window and opened the door. Simultaneously, a man, identified as codefendant Hafez Hakeem opened a rear door and got in the back seat. Hakeem pointed a gun at Anas head while defendant pointed her gun at Mauricios head.
The facts are taken from our prior opinion in this matter. (People v. Moreland (Mar. 26, 2002, B142762) [nonpub. opn.].)
1. Licea Incident
At approximately 10:20 p.m. on May 23, 1999, Mauricio Licea and his wife, Ana, parked their car at a Ralphs grocery store. Mauricio went into the store while Ana waited in the car. Mauricio returned to the car a few minutes later and as he opened the drivers side door to get in the car, defendant approached him. Mauricio quickly got in the car and shut the door. Defendant stood outside, knocked on the drivers side window, and said something. Mauricio tried to ignore her.
Defendant pulled a gun, pointed it at Mauricio, and motioned for him to open the door. Mauricio did not comply. Defendant then put her hand in the drivers side wing window and opened the door. Simultaneously, a man, identified as codefendant Hafez Hakeem opened a rear door and got in the back seat. Hakeem pointed a gun at Anas head while defendant pointed her gun at Mauricios head.
Hakeem was tried jointly with defendant. The jury deadlocked on the charges against him.
Hakeem and defendant took several items from Mauricio and Ana, including Mauricios watch, Anas engagement ring, and cash. Defendant yelled at Mauricio, who did not speak English. Still, Mauricio tried to explain to defendant that he had nothing left for her to take.
Hakeem struck Mauricio in the back of his head with the gun. Mauricio tried to get out of the car, raising his hands to his shoulders. Defendant pulled the trigger of her gun in rapid succession. The gun did not fire at first, but it then did so. Mauricio was hit in his finger and twice in his abdomen, suffering extensive intestinal damage. After the shooting, defendant and Hakeem ran away.
Mauricio underwent two surgeries, was hospitalized for 20 days, and had to wear colostomy bags for eight months.
As a result of this incident, defendant was convicted of the attempted murder of Mauricio and the robberies of Mauricio and Ana, with further findings as to each offense that defendant personally used a firearm (Pen. Code, § 12022.53 , subd. (b)), intentionally and personally discharged a firearm (id ., § 12022.53, subd. (c)), and intentionally personally discharged a firearm that resulted in great bodily injury to a person other than an accomplice (id., § 12022.53, subd. (d); further section references are to the Pen. Code).
2. Smith Incident
Also on May 23, 1999, at approximately 10:45 p.m., Hakeem drove into an alley not far from the Ralphs with defendant in the front passengers seat. Sam Smith was in his car waiting for the gate to his business to close. There, Hakeem blocked the car of Smith, who was about to leave his place of business. Defendant and Hakeem, each armed with handguns, got out of their car. Hakeem ordered Smith out of his car, struck him with the gun, and took Smiths wallet. Hakeem then searched him for more valuables and found a few additional dollars on Smith. Hakeem threatened to kill him if he called the police. Hakeem ordered defendant to drive away in Smiths car, and she did so. Hakeem fled in his own car.
As a result of this incident, defendant was convicted of robbery and carjacking, with further findings that she personally used a firearm in the commission of each offense within the meaning of section 12022.53, subdivision (b).
3. Sentencing Proceedings
Defendant was sentenced on June 28, 2000. On the Licea incident, defendant received an upper term of 9 years for attempted murder (count 1), enhanced by 25 years to life pursuant to section 12022.5, subdivision (d). A 3-year middle term and a 25-year-to-life enhancement were ordered for the robbery of Mauricio (count 2), but imposition of that sentence was stayed pursuant to section 654. For the robbery of Ana (count 3), defendant was sentenced to a one-third middle term of 1 year, plus an additional 6 years 8 months, representing one-third of the 20-year enhancement of section 12022.5, subdivision (c). Sentence on count 3 was ordered to run consecutively with the sentence on count 1. Defendants total determinate term on all counts was 21 years 8 months. Coupled with her indeterminate term of 25 years to life, defendants aggregate sentence was 46 years 8 months to life in prison.
By letter dated January 7, 2002, the Department of Corrections asked the trial court to clarify its sentence and determine whether correction was required. As pertinent to this appeal, the letter noted that with respect to count 3, section 12022.53, subdivision (f), states that only one enhancement may be imposed for each crime and that the court must impose the enhancement that provides the longest prison term. The letter further noted that the term under section 12022.53, subdivision (c) is 20 years and that the term under 12022.53, subdivision (d) is 25 years to life.
In response to this letter, a new sentencing hearing was held on May 8, 2002. At issue was the proper sentence to be imposed on count 3 and its associated enhancement findings. The prosecutor argued that the appropriate term of the enhancement was 25 years to life and that sentence on count 3 should remain consecutive to the sentence on count 1. Defendant argued that a concurrent term should be imposed on count 3 and that the terms the counts arising from the Smith incident could be increased, thereby achieving an aggregate sentence that would approximate the sentence of 46 years 8 months that was originally imposed. Defendant further argued that imposition of sentence on the count 3 enhancement was barred under section 654.
Ultimately, a term of 25 years to life was imposed on the count 3 enhancement under section 12022.53, subdivision (d). Sentence on count 3 was imposed consecutively to count 1, the trial court stating: "I am going to run em consecutive. And the reason why I am going to run em consecutive is the same reason I ran em consecutive before. [P] . . . And I am selecting consecutive because the objectives were independent of each other. There were two separate robberies. I think thats enough to . . . get that result. [P] But, you know, . . . [defendant] had a gun, and she is pointing a gun at everybody. . . . It was a gun, it was pointed on the - him and she robbed him. And it was a separate act of violence. Also, the fact that she used a gun as to both. And, also, the gun was discharged. All of those things, those are the reasons why I think I would not be following the law - I wouldnt be fair to the law if I didnt run em consecutive. . . . [P] . . . The rub, of course, is the 25 to life. The law requires me to give the longest term which is 12022.53(d) which is another 25 years to life. I felt it wrong at the time when I sentenced because of my analysis of the law. She fired the gun, and she shot somebody else. And I wish that I could give her the 20 years. [P] I wish that I could give her the same term that I did before, and it seems logical to me; but Mason [(People v. Mason (2002) 96 Cal.App.4th 1)] — in Mason the Court of Appeal said I was wrong, its logic to them - logical to them the other way. So I am going to tack on the - another 25 years to life."
Accordingly, defendants aggregate term was increased to 65 years to life in state prison, comprised of a determinate term of 15 years and two indeterminate terms of 25 years to life. Defendant filed a timely notice of appeal from the resentencing.
DISCUSSION
1. Propriety of Dual Enhancements
a. Discretion to enhance under section 12022.53, subdivision (c)
Defendant first contends that the trial court erred in considering itself compelled under Mason to enhance under section 12022.53, subdivision (d), rather than reimposing its original enhancement of 20 years under section 12022.53, subdivision (c). We disagree.
In People v. Mason, supra, the Court of Appeal concluded that separate section 12022.53, subdivision (d) enhancements were "properly imposed not only as to defendant[s] conviction for murder, but also for a robbery and six attempted robberies on separate victims that accompanied the murder." (96 Cal.App.4th at p. 3.) In the course of reaching this conclusion, the court characterized as "intuitively appealing" the defendants argument that where the only injury was the death of one of the victims, a section 12022.53, subdivision (d) enhancement should not be imposed with respect to the non-injured victims. (People v. Mason, supra, 96 Cal.App.4th at p. 11.) But the Mason court reasoned that based on "reading the plain language of section 12022.53 and recognizing the purpose for which it was enacted [(to impose longer prison sentences for firearm use)]," enhancements could be imposed on all qualifying counts "even though the victims of those crimes did not themselves suffer great bodily injury or death." (96 Cal.App.4th at p. 11.) Mason further held that because 25 years to life is an indeterminate term, the general rule that subordinate sentences and enhancements should be one-third of the full term did not apply and that full terms of 25 years to life should be imposed on subordinate enhancements under section 12022.53, subdivision (d). (96 Cal.App.4th at pp. 14-15.)
The issue of whether two enhancements under 12022.53, subdivision (d) may be imposed where only one of several victims has suffered bodily injury is pending before the Supreme Court in People v. Oates, review granted July 24, 2002, S106796.
As defendant correctly notes, nothing in Mason directly holds that where, as here, the jury has made findings under both subdivisions (c) and (d) of section 12022.53 with respect to an offense in which the victim did not suffer great bodily injury that enhancement under subdivision (d) rather than subdivision (c) is mandatory. But under section 12022.53, subdivision (f), which was not discussed in Mason, the trial court was required to impose the enhancement that provided for the longest term of imprisonment, i.e., 25 years to life. In addition, subdivision (g) of the statute prohibits a section 12022.53 enhancement from being suspended, and subdivision (h) prohibits the enhancement from being stricken. Accordingly, enhancement under section 12022.53, subdivision (d) was proper for the count 3 robbery of Ana Licea.
Section 12022.53, subdivisions (f), (g), and (h), provide as follows:
"(f) Only 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. . . .
"(g) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person found to come within the provisions of this section.
"(h) Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."
b. Section 654
In People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312, the defendant was convicted of murder in shooting his victim to death and argued that section 654s proscription against multiple punishment precluded his sentence from being enhanced under section 12022.53, subdivision (d) because the enhancement was based on the same act as the murder. The Hutchins court concluded that because section 12022.53, subdivisions (b)-(d) specify that their provisions are to be applied "notwithstanding any other provision of law," section 654 was inapplicable to the defendants sentence. (People v. Hutchins, supra, 90 Cal.App.4th at p. 1313.)
Defendant here seeks to distinguish Hutchins on the ground that it involved a enhancement associated with a count alleging injury to the victim rather than with counts involving different victims, albeit arising from the same course of conduct. We see no principled basis for the asserted distinction. If under Hutchins the plain language of section 12022.53 requires the sentencer to ignore provisions of law that would limit the reach of the enhancement statute when dual use of a single course of conduct is made for one crime, there is no reason that the same rule should not also apply when more than one victim is involved. Accordingly, we must reject defendants argument that section 654 should be applied to the two enhancements imposed in this case.
This issue may also be addressed by the Supreme Court in People v. Oats, supra, S106796.
2. Cruel and Unusual Punishment
Defendant contends that the imposition of the 25-years-to-life enhancement for the robbery of Ana (count 3) constitutes cruel and unusual punishment under the United States and California Constitutions and violates the double jeopardy clause. We disagree.
In our prior opinion in this matter, we rejected defendants cruel and unusual punishment argument with respect to the 25-years-to-life enhancement imposed for the attempted murder of Mauricio (count 1). (People v. Moreland, supra, B142762 at pp. 10-11.) Nothing about the second enhancement that has now been imposed alters our conclusion. We further observe that the enhancement imposed on count 3 was not for defendants act of discharging her gun and shooting Mauricio but for the added risk to Ana when the gun was discharged. Thus, defendant has not demonstrated a violation of the double jeopardy clause in this case.
DISPOSITION
The judgment is affirmed.
We concur: ORTEGA, Acting P. J., VOGEL (MIRIAM A.), J.