Opinion
B298518
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR ALEXIS TORRES, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Michael C. Keller, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. LA076730) APPEAL from a judgment of the Superior Court of Los Angeles County, Richard H. Kirschner, Judge. Affirmed in part; reversed in part; remanded with instructions. Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found Salvador Alexis Torres guilty of the first degree murder of Ramiro Lobos and found true the special circumstance allegation of lying in wait and multiple firearm use and gang allegations. The trial court sentenced Torres to life without the possibility of parole for the special circumstance murder, plus a consecutive sentence of 25 years to life for personally and intentionally discharging a firearm causing death. In People v. Torres (Nov. 20, 2018, B285202) (nonpub. opn.) (Torres I) we reversed the sentence, concluding the evidence was insufficient to support the jury's finding Torres personally used and intentionally discharged a firearm proximately causing death, in violation of Penal Code section 12022.53, subdivision (d). We remanded for resentencing, noting the trial court had discretion on remand to strike the firearm use enhancements pursuant to section 12022.53, subdivision (h).
All further statutory references are to the Penal Code.
On remand, the trial court denied Torres's motion to strike the firearm enhancements and imposed a 25-year-to-life sentence enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1), for a principal personally and intentionally discharging a firearm proximately causing death. Torres appeals the sentence imposed at his resentencing hearing and denial of his motion to strike the firearm enhancements. The trial court did not abuse its discretion by imposing the firearm enhancement. However, we agree with Torres the trial court erred in staying instead of striking the gang enhancement, and we remand for resentencing. In all other respects we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence presented at trial is set forth in greater detail in Torres I, supra, B285202.
Sometime after May 2013 Mayra Gavidia ended her romantic relationship with Torres and rekindled her relationship with her ex-boyfriend, Lobos. After Gavidia moved in with Lobos, Torres repeatedly contacted Gavidia, begging her to return to him. Gavidia refused Torres's requests and asked him to stop calling her. Torres's profession of his love for Gavidia escalated into threats to kill Lobos and Lobos's mother if Gavidia did not reunite with him.
Later that year Torres connected with his childhood friend, Pedro Anthony Romero-Cruz, who was a member of the Mara Salvatrucha Trece (MS-13) gang. Although Romero-Cruz was in prison, he was able to communicate with the gang members using a cell phone. Romero-Cruz connected Torres with MS-13 members in Los Angeles. Torres requested the gang members' assistance to kill Lobos. Torres and several MS-13 gang members conducted surveillance on Lobos's residence in Van Nuys, California to find an opportunity to kill Lobos. Torres later told Romero-Cruz he had purchased a .38-caliber revolver to "get rid of the guy." Torres also researched online how to use a .38-caliber revolver and nine-millimeter gun.
Shortly after 6:30 a.m. on January 8, 2014 Lobos was shot and killed outside his home in Van Nuys. Torres's cell phone records placed him near the site of the shooting at 6:47 a.m. A witness who heard the gunshots saw a Hispanic man run down the street and get into the passenger side of a car before it sped off. Three expended bullets found under and around Lobos's body were fired from the same .38- or .357-caliber revolver. Seven 9-millimeter bullets recovered from Lobos's body were fired by the firearm used in a September 2013 killing by MS-13 gang members.
Los Angeles Police Detective Frank Flores opined that Lobos's murder was committed for the benefit of, at the direction of, or in association with MS-13. The murder had the dual purpose of personally benefiting Torres while furthering his goal to become a member of MS-13. B. Jury Verdict and Sentencing
The jury found Torres guilty of first degree murder. (§ 187, subd. (a).) The jury found true the special circumstance allegation the murder was committed by lying in wait (§ 190.2, subd. (a)(15)), as well as the allegation the murder was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury also found true Torres personally used a firearm during commission of the murder (§ 12022.53, subd. (b)); he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); he personally and intentionally discharged a firearm and proximately caused great bodily injury or death to Lobos (§ 12022.53, subd. (d)); and a principal personally and intentionally discharged a firearm for the benefit of a criminal street gang (§ 12022.53, subd. (e)(1)).
The court sentenced Torres to life without the possibility of parole (LWOP) for the special circumstance murder. The court imposed a consecutive sentence of 25 years to life for personally and intentionally discharging a firearm and proximately causing death pursuant to section 12022.53, subdivision (d). The court stayed imposition of the 10-year sentence for the gang enhancement and struck the remaining firearm use enhancements without prejudice, conditioned on the sentence being upheld on appeal. C. Torres I and Resentencing on Remand
In Torres I we concluded substantial evidence supported Torres's conviction of first degree murder, explaining, "This evidence supports a finding that Torres had the motive to kill Lobos, planned to kill him, contacted an MS-13 shotcaller to assist him in the killing, orchestrated the surveillance, purchased a .38-caliber gun, researched how to use .38-caliber and nine-millimeter guns, and was in the area of the shooting at the time of the killing." (Torres I, supra, B285202.) We affirmed the jury's true findings on the firearm enhancements under section 12022.53, subdivisions (b) and (c), concluding, "In light of the evidence that bullets matching a .357- or .38-caliber revolver were found under and around Lobos's body, there was substantial evidence to support the jury's finding that Torres 'personally use[d] a firearm' and 'personally and intentionally discharge[d] a firearm' in the commission of the murder." (Torres I, supra, B285202.)
However, we reversed the sentence enhancement under section 12022.53, subdivision (d), holding "there is not substantial evidence that Torres fired the nine-millimeter firearm that killed Lobos, and therefore substantial evidence does not support the jury's finding true the allegation Torres 'personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury . . . or death.' [Citation.] . . . [T]he evidence showed that Torres purchased a .38-caliber revolver, and the nine-millimeter firearm that killed Lobos was previously used by MS-13 gang members in a September 2013 murder," for which the three gang members Romero-Cruz introduced to Torres were charged. (Torres I, supra, B285202.) We remanded for resentencing, noting that on remand, pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.), which went into effect on January 1, 2018, the trial court had discretion under section 12022.53, subdivision (h), to "strike or dismiss an enhancement otherwise required to be imposed by this section." (Torres I, supra, B285202.)
On remand, the People and Torres filed sentencing memoranda. The People argued for imposition of a 25-year-to-life sentence enhancement under section 12022.53, subdivisions (d) and (e)(1). They pointed to aggravating factors, including that Torres plotted the murder; purchased a .38-revolver to carry out the murder; recruited gang members to assist; stalked Lobos; then shot at Lobos, although the gang members' bullets provided the fatal blows. Further, Lobos was particularly vulnerable and his five-year-old son was left fatherless. Torres requested the trial court strike all the sentence enhancements on the basis additional punishment was not necessary in light of the LWOP sentence. Torres argued in mitigation he was 23 years old at the time of the murder, had no prior record, and admitted to the investigating officers he used a .38-caliber revolver to fire three rounds in the direction of Lobos. Torres also assisted in the investigation by identifying two of the other suspects.
The trial court declined to exercise its discretion to strike the firearm enhancements, stating, "This was a case involving great violence, death, and a high degree of cruelty and viciousness. The victim was particularly vulnerable. The victim was stalked. The manner in which this was carried out showed a high degree of planning and execution. This was an [MS-]13 hit. . . . It was well orchestrated, and the results were catastrophic for everyone." The trial court resentenced Torres to life without the possibility of parole, plus a 25-year-to-life enhancement for a principal personally and intentionally discharging a firearm, causing death (§ 12022.53, subds. (d) & (e)(1)). The court again stayed the gang enhancement.
Torres appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Imposing the Firearm Sentencing Enhancement
Torres contends the trial court abused its discretion in imposing an additional 25 years to life under section 12022.53, subdivision (e)(1), because it was "irrational" to lengthen Torres's LWOP sentence. We review the trial court's sentencing decision for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 ["The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'"]; People v. Carmony (2004) 33 Cal.4th 367, 377 ["a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it"]; People v. Pearson (2019) 38 Cal.App.5th 112, 116 [trial court did not abuse its discretion in declining to strike firearm enhancement under §12022.53, subd. (h)].)
Torres has not cited to any authority for his contention a trial court abuses its discretion by imposing a sentence enhancement where the defendant will already be serving an LWOP sentence. To the contrary, as the Supreme Court explained in People v. Shabazz (2006) 38 Cal.4th 55, 70, "Although defendant contends it would be unreasonable to assume that the Legislature intended that the section 12022.53 enhancements would be imposed on a defendant who is sentenced to life imprisonment without the possibility of parole, because the enhancement would have no practical effect, the words employed in section 12022.53 defeat defendant's argument: the statute states specifically that it is intended to apply to 'any felony punishable by death or imprisonment . . . for life.' (§ 12022.53, subd. (a)(17)." The Shabazz court reversed the Court of Appeal's judgment vacating the 25-year-to-life enhancement imposed under section 12022.53, subdivision (d), on the defendant's LWOP sentence. (Shabazz, at p. 70; see People v. Chiu (2003) 113 Cal.App.4th 1260, 1262 [defendant properly sentenced to firearm enhancement under § 12022.53, subd. (d), consecutive to LWOP sentence].)
On appeal, Torres also points to the mitigating factors that he had no prior criminal record (Cal. Rules of Court, rule 4.423(b)(1), and he admitted to the investigating officers that he had fired three rounds in the direction of Lobos and assisted the police by implicating two MS-13 gang members (rule 4.423(b)(3) [circumstances in mitigation include that "[t]he defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process"]). Although a trial court should consider these mitigating factors, the court properly considered the multiple aggravating factors, including that the case involved "great violence, death, and a high degree of cruelty and viciousness" (rule 4.421(a)(1)); the victim was particularly vulnerable (rule 4.421(a)(3)); Torres induced the MS-13 gang members to participate in the murder (rule 4.421(a)(4)); and the crime "showed a high degree of planning and execution" (rule 4.421(a)(8)).
"When the sentencing decision involves an assessment of various factors, the trial court has discretion to accord different weight to each factor, and its decision need not be determined by the sheer number of factors on one side or the other. Rather, the trial court's exercise of its sentencing discretion 'requires "[a] quantitative and qualitative analysis" of multiple factors.'" (People v. Willover (2016) 248 Cal.App.4th 302, 323, quoting People v. Wright (1982) 30 Cal.3d 705, 719.) Given the significant aggravating factors, the trial court did not abuse its discretion in refusing to strike the firearm enhancement. B. Section 186.22, subdivision (b)(5), Does Not Apply to an LWOP Sentence
Torres also requests we remand for the trial court to correct the abstract of judgment to delete any reference to section 12022.53, subdivision (d), given our conclusion in Torres I that the trial court improperly imposed this enhancement for Torres's personal use of a firearm. The abstract of judgment states the trial court imposed a sentence of 25 years to life for section "12022.53(d)(e)(1)." In light of the inclusion in the abstract of a reference to section 12022.53, subdivision (e)(1), it is clear the sentence enhancement was imposed under section (e)(1) for the principal's use of a firearm, but the reference to section (d) was also appropriate to explain the 25-years-to-life enhancement was imposed for the principal's personal and intentional discharge of a firearm proximately causing death.
Torres contends that because he was sentenced to a life sentence, the 15-year minimum parole eligibility term for life terms under section 186.22, subdivision (b)(5), and not the 10-year sentence enhancement under section 186.22, subdivision (e)(1), applies. Torres relies on People v. Lopez (2005) 34 Cal.4th 1002, 1011 (Lopez), in which the Supreme Court held the 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5), applied to the defendant's 25-year-to-life sentence for first degree murder in lieu of the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C). (Lopez, at pp. 1004, 1009.) The Lopez court rejected the People's argument the 15-year minimum eligibility date should not be applied because it would have no practical effect on a 25-year-to-life sentence, concluding, "We find instead that the plain language of section 186.22(b)(5) governs and therefore conclude that the Court of Appeal erred in applying the 10-year gang enhancement to defendant's first degree murder conviction." (Lopez, at p. 1011; accord, People v. Salvador (2017) 11 Cal.App.5th 584, 594 ["[T]he trial court erred in sentencing defendant to a consecutive 10-year term of imprisonment on each of the life terms to which defendant was sentenced"].)
Section 186.22, subdivision (b)(5), provides, with an exception not applicable here, "[A]ny 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."
In People v. Williams (2014) 227 Cal.App.4th 733, 736-737, the Court of Appeal similarly concluded the trial court erred in imposing 10-year gang enhancements under section 186.22, subdivision (b)(1)(C), to the defendant's sentences on multiple counts for 25 years to life instead of imposing 15-year minimum parole terms under section 186.22, subdivision (b)(1)(C). The court noted the jury's true findings on the gang enhancements would still have a practical effect, explaining "[t]he Board of Parole Hearings may consider these findings when determining defendant's release date." (Williams, at p. 745, fn. 11.)
The People argue this holding is inapplicable to an LWOP sentence, pointing to dicta in Lopez, in which the Supreme Court stated, "In sum, at the time the [California Street Terrorism Enforcement and Prevention] Act was enacted, the predecessor to section 186.22(b)(5) was understood to apply to all lifers, except those sentenced to life without the possibility of parole. . . . [W]e find no indication that the voter-approved amendment in June 1998 to section 190, subdivision (e), which eliminated postsentence credits and thereby increased the [minimum eligible parole dates] for first and second degree murderers, impliedly altered the meaning of 'a felony punishable in the state prison for life' in that predecessor provision." (Lopez, supra, 34 Cal.4th at p. 1010, italics added.) The Supreme Court in People v. Montes (2003) 31 Cal.4th 350, 357, similarly discussed the enrolled bill report analyzing the financial impact of the predecessor statute to section 186.22, subdivision (b)(5), which report stated, "'This proposed provision relating to life terms [former section 186.22, subdivision (b)(3), now section 186.22(b)(5)] would apply to all lifers (except life without possibility of parole).'" The attachment to the report listed nine felonies potentially impacted by the predecessor statute, none of which provided for an LWOP sentence. (Montes, at pp. 357-358 & fn. 10.)
The People have the better argument. As a principle of statutory construction, "[w]e turn first to the statutory language, giving the words their ordinary meaning. [Citation.] If the statutory language is not ambiguous, then the plain meaning of the language governs. [Citation.] If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the analyses and arguments contained in the official ballot pamphlet, and the ostensible objects to be achieved." (Lopez, supra, 34 Cal.4th at p. 1006.) Although section 186.22, subdivision (b)(5), applies to persons who commit a felony punishable "by imprisonment in the state prison for life," its provision that the person "shall not be paroled until a minimum of 15 calendar years have been served" does not have meaning when applied to an LWOP sentence for which by definition there is no parole date. We therefore look to the legislative history.
The Supreme Court's analysis in Lopez and Montes of the legislative history of the predecessor statute to section 186.22, subdivision (b)(5), supports the People's position the Legislature never intended the section to apply to defendants sentenced to an LWOP sentence.
Torres also argues the trial court erred in imposing both the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) (which it stayed), and the firearm enhancement under sections 12022.53, subdivision (e)(1) (25 years to life), because the firearm enhancement was based on the gang enhancement. We agree. Section 12022.53, subdivision (e)(2), provides that "[a]n enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense." Although the jury found true Torres personally used and discharged a firearm in the commission of the murder, he did not personally use and discharge a firearm causing death (the enhancement imposed) given that it was a principal whose bullet killed Lobos. Because the firearm enhancement imposed depended on the gang enhancement, the trial court should have stricken the gang enhancement instead of staying it. Alternatively, the trial court on remand could impose the 20-year firearm enhancement under section 12022.53, subdivisions (c) and (e)(1), and again stay the gang enhancement. We remand for the trial court to elect one of these options and resentence Torres.
DISPOSITION
We remand for resentencing consistent with this opinion. We otherwise affirm.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.