Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 01F06412
BLEASE, J.
In People v. Zarazua (2008) 162 Cal.App.4th 1348 (Zarazua), we reversed the second degree murder and attempted voluntary manslaughter convictions sustained by Sergio Zarazua and his codefendant, Jorge Ramirez. (Id. at pp. 1362-1363.) We affirmed their convictions, inter alia, for shooting at an occupied vehicle (Pen. Code, § 246) and affirmed the findings that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). (Id. at pp. 1354-1355, 1362-1363.) We remanded the case for retrial and resentencing. The district attorney elected not to retry Sergio or Jorge. The trial court resentenced Sergio and Jorge, giving each an aggregate term of 40 years to life.
As in our prior opinion, we shall refer to Sergio and Jorge by their first names because Sergio shared a surname with another original codefendant. (See Zarazua, supra, 162 Cal.App.4th at p. 1351.)
A reference to a section is to the Penal Code.
Section 186.22, subdivision (b)(4)(B) provides that a person convicted of a violation of section 246, committed for the benefit of a street gang, shall be punished by imprisonment in the state prison for life with a minimum term of 15 years.
The present appeal is taken only by Sergio. He contends (1) the trial court erred by failing to strike the gang enhancement (§ 186.22, subd. (b)), or to reduce the conviction of shooting at an occupied vehicle (§ 246) to a misdemeanor, (2) he was awarded an incorrect number of presentence custody credits, and (3) the abstract of judgment must be corrected to delete jail booking and classification fees that were not imposed by the court.
We shall correct the number of presentence custody credits to which Sergio is entitled and order the jail booking and classification fees stricken from the abstract of judgment. As modified, we shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
In pertinent part, our prior decision recounted the facts of the underlying offenses as follows: “Emilio Osorio and Julio Covington, cousins and members of the Norteños gang, went to the AM/PM store on the corner of Jessie Avenue and Norwood Avenue in Sacramento in the red Pontiac Firebird that Covington was driving. Neither of them was armed. Covington parked in front of the store and went into the store while Osorio waited in the car.
“Inside the store, Covington saw Sergio, whom he recognized as a Sureño, based on his clothing. He was wearing a shirt with the number 13 on it. Covington left the store and drove the Pontiac over by the gasoline pumps. Carlos [Zarazua] was standing near one of the pumps, next to a blue Toyota. Covington yelled ‘Norte’ at Carlos, which, to a rival gang member, is a challenge. Covington also called Carlos a ‘scrapa, ’ a name a Norteño gang member calls a Sureños gang member, intended as an insult. In response, Carlos yelled, ‘Fuck you.’ Angry, Covington pulled out of the station and onto Jessie Avenue. He drove slowly through the neighborhood looking for someone he knew.
“Covington stopped at a stop sign on Naruth Way at the intersection with Jessie Avenue, less than a half-mile from the AM/PM store and about a block from Rio Linda Boulevard. The Toyota from the AM/PM store, with Carlos driving and Sergio and Jorge as passengers, left the AM/PM store and, traveling on Jessie Avenue, approached the intersection of Naruth Way and Jessie Avenue just after the Pontiac, traveling on Naruth Way, arrived at the same intersection. The Toyota skidded to a stop about 40 feet away from the Pontiac. Sergio and Jorge each leaned out of the Toyota and fired handguns at the Pontiac.
“Reacting to the gunshots, Covington told Osorio to get down and first accidentally put the Pontiac in neutral but then into drive. He burned rubber, then drove away from the Toyota down Jessie Avenue, gaining speed rapidly, and, despite a stop sign, entered Rio Linda Boulevard going about 45 miles per hour. At the same time, a Honda Accord driven by Khamla Douangmala was passing through the same intersection on Rio Linda Boulevard, going about 35 miles per hour. Douangmala's uncle, Chan Douangdara, was riding in the front passenger seat, and Douangmala’s three-year-old son, Rocky, was riding in the back seat on the passenger side.
“The Pontiac hit the Honda, propelling it into some poles. Douangmala and his uncle were both knocked unconscious but later recovered. Rocky, however, died as a result of the impact.” (Zarazua, supra, 162 Cal.App.4th at p. 1352.)
DISCUSSION
I
Failure to strike section 186.22, subdivision (b)(4)(B) penalty or to reduce the section 246 conviction to a misdemeanor
Sergio urges us to reverse the judgment because the trial court misunderstood the scope of its sentencing discretion. He argues that the trial court may well have decided to strike the penalty imposed by section 186.22, subdivision (b)(4), and to reduce the conviction of section 246 to a misdemeanor if the court had been aware of its sentencing choices. We disagree.
A
In pronouncing judgment, the trial court acknowledged impassioned pleas for leniency by Sergio and Jorge as follows: “And, yes, Sergio, and yes, Jorge, I recognize your letter that plead for lienency [sic], and I recognize that you are changed, dramatically changed individuals.
“And, yes, I understand that you believe I am sentencing you or that the law is treating you or judging you for being a 15 year old that was immature, that acted horofically [sic], that you probably would never do [it] again, and it’s true, that is what you’re being punished for.
“And I know in your letters and in your hearts that you accept responsibility for that ignorant behavior that you have said yourselves was ignorant and horrible.
“But this Court is in no position, irrespective of what I may personally feel, to say: Oh, [counsel for defendant] is right. Oh, no, [counsel for Jorge] is right about guns or, no, I think the district attorney is doing the wrong thing.
“This Court is bound and obligated to impose sentence as the law mandates, and indeed, will impose sentence in the following manner:
“With respect to both defendants, Madam Clerk, they will be sentenced to Count 4, the discharging of the firearm into an occupied vehicle as mandated by law in light of the finding that the discharge of said firearm was for the benefit of, direction of, or in association with a criminal street gang within the meaning of Penal Code Section 186.22 (b) for an indeterminate term of 15 years to life.”
The trial court then noted: “They would not have been... granted probation even if they were [eligible] in light of the seriousness of the conduct and the seriousness of the circumstances surrounding the crime.”
The court further sentenced defendant and Jorge as follows: “And following the jury’s finding that they personally, each of them, discharged, and by the discharge of a firearm caused great bodily injury and/or death within the meaning of Penal Code sections 12022.53(b), (c), (d) and subsections (e), which subsection (e), causes the 15 to life sentence to begin with, your sentences will be enhanced by 25 additional years to life as mandated by the legislature, for an aggregate term, indeterminate term, of 40 years to life, each Defendant to suffer said aggregate imposition of 40 years to life.”
B
Defendant argues that the trial court could have lawfully selected a lesser sentence than the 40-years-to-life term imposed. Specifically, defendant contends that a trail court has discretion to strike the gang enhancement provided by section 186.22, subdivision (b)(4). In support, defendant relies on People v. Torres (2008) 163 Cal.App.4th 1420 (Torres). In Torres, the Court of Appeal reversed after the trial court resentenced defendant to a term greater than the initial sentence. (Id. at pp. 1432-1433.) The Torres court remanded the case with instructions to strike the gang enhancements if it found the case presented unusual circumstances. (Id. at p. 1433.) “In striking an enhancement in ‘“furtherance of justice”’ the court ‘may look to general principles, outside the framework of the sentencing scheme, or be guided, instead, by the particulars of the scheme itself, informed as well by “generally applicable sentencing principles relating to matters such as the defendant’s background, character, and prospects, ” including the factors found in California Rules of Court, rule 410 [now rule 4.410] et.seq.’ (People v. McGlothin (1998) 67 Cal.App.4th 468, 474[]; see People v. Williams (1998) 17 Cal.4th 148, 160[].)” (Id. at p. 1433, fn. 6.)
Defendant also notes that section 246 is an offense that can be punished as a felony or misdemeanor. “If a given statute... does not define the nature of the crime as either a felony or a misdemeanor, but merely specifies a punishment, the test of the nature or status of the offense, which only applies to this special class of felony-misdemeanor offenses or so-called wobblers, becomes the actual punishment imposed.” (People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 355.) Accordingly, defendant contends the trial court could have reduced the conviction of section 246 to a misdemeanor under section 17.
Section 246 provides: “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year.”
Subdivision (b) of section 17 provides, in pertinent part: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison.”
The Attorney General argues that defendant forfeited these issues because his trial attorney failed to raise the issue in the trial court. To this end, respondent points out that this court ordinarily will not consider erroneous rulings when an objection could have been, but was not, presented to the trial court. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Moreover, respondent points out that a defendant’s failure to invite the court to exercise its discretion to dismiss a sentence enhancement forfeits the right to raise the issue on appeal. (People v. Carmony (2004) 33 Cal.4th 367, 376.) We agree that defendant forfeited his challenge to the trial court’s failure to exercise its discretion to select a lesser sentence by striking the gang enhancement and reducing the section 246 conviction to a misdemeanor.
Anticipating our conclusion that the issue has been forfeited, defendant contends he received ineffective assistance of counsel for failure of his trial attorney to argue for striking the enhancement and reducing the section 246 conviction to a misdemeanor. Although we consider the issue in the context of defendant’s alternate claim of ineffective assistance of counsel, we shall conclude that he did not receive deficient legal representation.
A defendant claiming ineffective assistance of counsel must prove that counsel’s performance was deficient under an objective standard of professional conduct and there is a reasonable probability that but for counsel’s deficiencies the defendant would have achieved a more favorable result at trial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694]; People v. Holt (1997) 15 Cal.4th 619, 703.) We conclude he would not have received a more favorable result even if trial counsel had performed as he now wishes.
On appeal, we presume that the trial court properly exercised its discretion in sentencing a criminal defendant. (See, e.g., Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) Thus, we may not assume the court was unaware of its discretion simply because it failed to explicitly refer to its alternate sentencing choices. (People v. Fuhrman (1997) 16 Cal.4th 930, 933, 944-947.)
We reject defendant’s contention that the court’s remark demonstrates it did not believe it did have discretion to select a lesser sentence. The court’s remarks about imposing the sentence required by law were made in the context of an acknowledgement that Sergio and Jorge had expressed genuine remorse for their part in causing the senseless death of a three-year-old child. The court indicated that personal feelings about the case did not determine the punishment, but rather that the sentence was set forth by law.
The court’s statement about following the law in sentencing Sergio and Jorge did not indicate legal impediment to selecting lesser sentences. To the contrary, the trial court pointedly noted “the seriousness of the conduct and the seriousness of the circumstances surrounding the crime” when stating that probation would not have been granted even if it had been an option. The “ignorant and horrible” nature of the conduct leading to the death of a three-year-old child served as the trial court’s basis for selecting Sergio’s sentence.
As the court’s comments make clear, the court would not have imposed a lesser sentence even if trial counsel had argued for striking the gang enhancement and reducing the section 246 conviction to a misdemeanor. Consequently, defendant did not receive ineffective assistance of counsel at sentencing.
II
Presentence Custody Credits
Defendant contends that the trial court erroneously credited him with 2, 742 custody credits for his presentence incarceration between July 29, 2001, and January 30, 2009. This time period encompasses 2, 743 days. Based on the actual days in custody, defendant contends he is entitled to 168 days of conduct credit, for a total of 2, 911 presentence custody credits. The Attorney General concedes that defendant is entitled to 2, 911 presentence custody credits. We accept the concession.
III
Jail Booking and Classification Fee
Defendant contends the jail booking and classification fees provided in Government Code section 29550.2 must be stricken from the abstract of judgment because they were not actually imposed by the trial court. Respondent concedes the trial court’s ability to decline to impose the fees when a defendant has no ability to pay. (Gov. Code, § 29550.2, subd. (a).) We accept the concession because the record indicates that the trial court declined to impose the $189.93 jail booking fee and $23.82 jail classification fee.
DISPOSITION
The matter is remanded with directions to the trial court to prepare an amended abstract of judgment to (1) award defendant a total of 2, 911 presentence custody credits, (2) strike the $189.93 jail booking fee, and (3) strike the $23.82 jail classification fee. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
We concur: RAYE, P. J., MAURO, J.