Opinion
D072068
07-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JAIME ARTEAGA, Defendant and Appellant.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Eric A. Swenson, Supervising Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD268952) APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Affirmed in part, vacated in part, and remanded with directions. Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Eric A. Swenson, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Jaime Arteaga appeals the judgment sentencing him to prison after a jury found him guilty of robbery and found true weapon-use and gang enhancement allegations and he admitted allegations concerning prior convictions and prison terms. We vacate a portion of the sentence, remand the matter with directions for resentencing and modifications of the judgment, and otherwise affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
As Luis G. was walking home from school and passed through a park in an area claimed by the Logan Heights Treinta criminal street gang, Julian Dominguez, a gang member, called out to Luis and asked to see the camera and bag he was carrying. Luis gave Dominguez the camera and bag. As Dominguez was looking in the bag, Jaime Arteaga, another gang member, pulled out a knife, held it to Luis's abdomen, and demanded money. When Luis took out his wallet, Arteaga snatched it away, removed all the money, and returned the wallet to Luis. Arteaga then took Luis's neck chain and wrist watch and left the park with Dominguez and Luis's belongings.
A jury found Arteaga guilty of robbery (Pen. Code, § 211; subsequent undesignated section references are to this code) and found true allegations he personally used a deadly or dangerous weapon in the robbery (§ 12022, subd. (b)(1)) and committed the robbery for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Arteaga admitted allegations he had a prior conviction that qualified as a serious felony for purposes of a five-year enhancement (§ 667, subd. (a)(1)) and as a strike for purposes of the Thee Strikes law (§ 667, subds. (b)-(i)), and had served three prior prison terms (§ 667.5, subd. (b)).
The trial court sentenced Arteaga to an aggregate prison term of 18 years, consisting of: (1) the upper term of five years (§ 213, subd. (a)(2)), doubled to 10 years for the prior strike conviction (§ 667, subd. (e)(1)); (2) a consecutive term of one year for the weapon-use enhancement (§ 12022, subd. (b)(1)); (3) a consecutive term of five years for the prior serious felony conviction (§ 667, subd. (a)(1)); and (4) two consecutive terms of one year each for two of the prior prison terms (§ 667.5, subd. (b)). The court imposed a consecutive one-year term for the prior prison term Arteaga had served for the prior serious felony conviction in case No. SCD263437, but stayed execution of that term "per Jones." The court imposed a 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)(C)), but stayed execution "in the interest of society." The court ordered Arteaga to pay various fines and fees, including a "theft fine" of $39. (§ 1202.5.)
Arteaga appealed the judgment of conviction. His appointed counsel filed a brief pursuant to People v. Wende (1974) 25 Cal.3d 436, in which counsel set out the facts and procedure of the case, raised no claims of error, and invited this court to review the record independently. We did so and identified potential errors concerning the trial court's stays of execution of one of the prior prison term enhancements and the gang enhancement and the court's calculation of the amount of the section 1202.5 fine. We solicited and obtained letter briefs from counsel on these matters. We also advised Arteaga he could file a supplemental brief, and he did so.
II
DISCUSSION
The parties disagree about the potential sentencing errors we asked them to brief. Arteaga contends the trial court should have stricken both the enhancement for the prison term he served for the prior serious felony conviction and the gang enhancement on the current conviction. The People contend the court properly imposed and stayed execution of the prior prison term enhancement, but should have either imposed and executed the gang enhancement or stricken it. The parties agree $39 is not the correct amount of the section 1202.5 fine and ask us to impose the correct amount. As discussed below, we conclude the court erred in its disposition of the enhancements and in setting the amount of the section 1202.5 fine, and remand the matter for limited resentencing and modifications of the judgment.
A. The Prior Prison Term Enhancement
The trial court erred by imposing and staying the one-year enhancement for the prison term Arteaga served for his prior serious felony conviction. Our Supreme Court has held a defendant who suffered a prior serious felony conviction and served a prison term for that conviction cannot be punished in a subsequent case with both the five-year enhancement for the prior conviction and the one-year enhancement for the associated prison term. (People v. Jones (1993) 5 Cal.4th 1142, 1144-1145.) Instead, "the greatest enhancement, but only that one, will apply." (Id. at p. 1150.) Striking the one-year enhancement was the procedure the Jones court adopted. (Id. at p. 1153.) Other courts, including this one, have followed that procedure. (See, e.g., People v. Perez (2011) 195 Cal.App.4th 801, 805; People v. Solis (2001) 90 Cal.App.4th 1002, 1021; People v. Gonzalez (1993) 20 Cal.App.4th 1607, 1610.) The People invite us to follow a different procedure discussed in People v. Lopez (2004) 119 Cal.App.4th 355. The Lopez court considered alternative sentencing schemes that apply to sex crimes, and decided that a finding under the one strike law did not have to be stricken or dismissed when the defendant was sentenced under the habitual sex offender law. (Id. at pp. 358, 360-366.) In its discussion of that issue, the Lopez court suggested in dictum that Jones is not binding authority, and that imposing and staying execution of an unused enhancement, not striking it, is the proper procedure when a court may execute only one of two alternative enhancements. (Id. at p. 364.) We decline to follow the procedure suggested by Lopez. In an earlier decision, we acknowledged that "[a]s an intermediate appellate court, we are bound to follow the precedent of our Supreme Court," and followed the striking procedure adopted in Jones. (Gonzalez, at p. 1610.) We adhere to those decisions, and direct the trial court on remand to strike the one-year enhancement for the prior prison term in case No. SCD263437
B. The Gang Enhancement
The trial court erred by imposing and staying execution of the gang enhancement. When the jury finds the defendant committed a violent felony for the benefit of a criminal street gang, the defendant "shall be punished by an additional term of 10 years" consecutive to the term imposed for the violent felony. (§ 186.22, subd. (b)(1)(C).) Robbery is a violent felony for purposes of this enhancement. (§ 667.5, subd. (c)(9).) The trial court therefore was required to enhance Arteaga's prison sentence by 10 years
"absent a lawful reason not to do so." (People v. Vega (2013) 214 Cal.App.4th 1387, 1396 (Vega).) One such reason is the court's discretion to "strike the additional punishment for the enhancement[] . . . in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition." (§ 186.22, subd. (g).) Thus, although it may be stricken, the "gang enhancement may not be stayed." (Vega, at p. 1397.)
As noted, however, the trial court did not exercise its discretion to strike the gang enhancement, but purported to stay it. At the sentencing hearing, the court explained: "In this court's opinion, based on other sentences in cases I've handled, based on other gang cases I've handled, I don't feel the level of activity in this case is justified by the 10-year sentence. So . . . I'm going to stay the 10-year allegation under 186.22(b)(1) and I do find it's in the interest of society, and in the interest of [Arteaga], of course. I think that the sentence that I'll be giving is sufficient punishment for the activity." Such a stay is legally unauthorized. The trial court must either impose the gang enhancement or strike it. (Vega, at p. 1397.) We therefore vacate the stay of the gang enhancement and direct the trial court on remand either to impose the enhancement or to strike it, and if it chooses to strike it, to state its reasons for doing so on the record in accordance with section 186.22, subdivision (g). (People v. Lua (2017) 10 Cal.App.5th 1004, 1020-1021; Vega, at p. 1397.)
C. The Section 1202.5 Fine
The trial court erred by imposing a $39 fine under section 1202.5. The statute imposes on a defendant convicted of robbery or other specified crimes "a fine of ten dollars ($10) in addition to any other penalty or fine imposed." (§ 1202.5, subd. (a).) The sentencing court may select an amount less than $10 as the base fine, or impose no fine at all, based on the defendant's ability to pay. (Ibid.; People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530 (Castellanos).) If the court imposes a section 1202.5 fine, it must also impose additional amounts because "[t]he Legislature has superimposed onto the base fine scheme a number of penalties, assessments, fees, and surcharges." (People v. Sorensen (2005) 125 Cal.App.4th 612, 617.) "[A] section 1202.5 fine is subject to the following additional assessments, surcharge, and penalties, which the Legislature has expressly provided must be added to any criminal fine: (1) a $10 penalty assessment pursuant to Penal Code section 1464, subdivision (a)(1); (2) a $7 penalty assessment pursuant to Government Code section 76000, subdivision (a)(1); (3) a $2 penalty assessment pursuant to Government Code section 76000.5, subdivision (a)(1); (4) a [20 percent of the base fine] state surcharge pursuant to Penal Code section 1465.7, subdivision (a); (5) a state court construction penalty of $5 . . . pursuant to Government Code section 70372, subdivision (a)(1); (6) a $1 DNA penalty pursuant to Government Code section 76104.6, subdivision (a)(1); and (7) a [$4] DNA state-only penalty pursuant to Government Code section 76104.7, subdivision (a)." (People v. Knightbent (2010) 186 Cal.App.4th 1105, 1109 (Knightbent).) In sum, a total of $29 plus 20 percent of the base fine amount must be added to that amount to determine the total amount of the section 1202.5 fine.
In imposing the section 1202.5 fine on Arteaga, the trial court did not specify the base fine amount; it simply stated it would "order all these fines along with the restitution that's been recommended by the Probation Department." The probation officer's report similarly did not specify the base fine amount; it simply stated, "Theft Fine pursuant to PC1202.5 in the amount of $39.00, including penalty assessment, for payment to SDPD law enforcement agency." In the absence of any indication in the record to the contrary, we will assume the probation officer and the trial court used $10 as the base fine amount. The total amount of the section 1202.5 fine, after addition of all assessments, penalties, and surcharge, would then be $41. By imposing a section1202.5 fine, the trial court implicitly found Arteaga had the ability to pay the fine. (Castellanos, supra, 175 Cal.App.4th at p. 1531.) Arteaga did not challenge his ability to pay the $39 fine imposed at sentencing, and he does not contend on appeal that he cannot pay a $41 fine. We therefore modify the judgment to increase the amount of the section 1202.5 fine from $39 to $41. (Knightbent, supra, 186 Cal.App.4th at pp. 1112-1113; People v. Stewart (2004) 117 Cal.App.4th 907, 910-911.)
D. Arteaga's Supplemental Brief
In his supplemental brief, Arteaga contends he did not intend to go to trial; he "was dragged into it" because he had a codefendant, Dominguez; and the "outcome would have been different if [he] could've got tried separately like [he] asked." Arteaga also contends he is "being over punished" by the 18-year prison term, because the crime "was not a violent one or gang related," and he "ha[s] struggled with mental illness and drug addiction since [he] was 13 and [he] was never offered a rehab or any kind of help to better [him]self."
Arteaga has forfeited these contentions because his supplemental brief contains no citations to the record or to legal authorities. (People v. Marshall (1990) 50 Cal.3d 907, 945, fn. 9; People v. Clayburg (2012) 211 Cal.App.4th 86, 93.) In any event, his contentions lack merit. Arteaga was not entitled to be tried separately from Dominguez. Two defendants charged with the same crime must be tried together unless the court orders separate trials. (§ 1098.) "[T]his was a classic case for a joint trial. Defendants 'were charged with the same crimes arising from the same events.' " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 379.) Arteaga and Dominguez did not have antagonistic defenses, and nothing in the record suggests their joint trial compromised any of Arteaga's trial rights or prevented the jury from making a reliable determination of his guilt. (People v. Burney (2009) 47 Cal.4th 203, 236-237.) Nor has Arteaga been "over punished." Contrary to Arteaga's erroneous assertions, robbery is a violent felony (§ 667.5, subd. (c)(9)), and the jury found Arteaga used a deadly weapon in forcibly taking property from Luis's person for the benefit of a gang. The jury's verdicts and Arteaga's admitted recidivism support imposition of an even longer prison term than the 18 years the trial court imposed. His alleged problems with mental illness and drug addiction do not make that sentence legally excessive.
III
DISPOSITION
The sentence is vacated to the extent it stays execution of the gang enhancement, and the matter is remanded to the trial court with directions either to impose the enhancement or to strike it in accordance with Penal Code section 186.22, subdivision (g). On remand, the trial court also is directed to strike the one-year enhancement imposed for the prior prison term in case No. SCD263437, and to increase the section 1202.5 fine from $39 to $41. In all other respects, the judgment is affirmed. When resentencing is completed, the trial court shall prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
BENKE, Acting P. J. WE CONCUR:
HUFFMAN, J.
HALLER, J.