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People v. Bender

Court of Appeals of California, Second District, Division Three.
Nov 6, 2003
No. B163450 (Cal. Ct. App. Nov. 6, 2003)

Opinion

B163450.

11-6-2003

THE PEOPLE, Plaintiff and Respondent, v. ARNOLD BENDER, Defendant and Appellant.

Jerry D. Whatley, 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, Lance E. Winters, Supervising Deputy Attorney General, and Laura J. Hartquist, Deputy Attorney General, for Plaintiff and Respondent.


Arnold Bender appeals from the judgment entered following his convictions by jury of two counts of second degree robbery (Pen. Code, § 211) with firearm use (Pen. Code, § 12022.53, subd. (b)), and with admissions that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)), a prior serious felony conviction (Pen. Code, § 667, subd. (a)), and a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). He was sentenced to prison for 26 years 4 months.

In this case, we hold no prejudicial error resulted from any trial court failure to rule on appellants motion for a new trial. We hold remand is required to permit the trial court to exercise its discretion to impose concurrent or consecutive sentencing on count four. We hold there was sufficient evidence to support the firearm use enhancement pertaining to count four. We hold the trial court did not erroneously fail to instruct on a lesser included enhancement as to count four. We hold imposition of both firearm use enhancements did not violate Penal Code section 654. Finally, we hold appellant is entitled to additional Penal Code section 4019 conduct credit.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that at about 3:00 a.m. on November 27, 2001, Juan Carlos Rodrigues Cortes was a cashier at the El Atacor restaurant on Washington in Santa Fe Springs. Fidel Vasquez prepared tacos there. Appellant entered the restaurant and placed an order. Appellant was wearing a black cap and black jacket.

Cortes was the person referred to in count three (discussed infra) of the information as Juan Rodriguez. For sake of consistency, we will use the name Cortes throughout this opinion.

While Cortes was writing the order, appellant pulled out a gun and pointed it at Cortes. Appellant told Cortes to "give [appellant] the money and not fuck around." Cortes gave appellant $300 from the cash register. Appellant demanded any money which was under a box inside the register. Cortes lifted the box and showed appellant that there was no money under the box. Appellant demanded Cortess wallet. Cortes told appellant that Cortes would give appellant the money from the wallet, but that Cortes wanted to keep the wallet. After appellant again demanded Cortess wallet, Cortes, afraid, gave it to him. The wallet contained about $500.

Vasquez was behind Cortes but "further back" when Cortes surrendered Cortess wallet. Vasquez approached to see what appellant would order. Appellant demanded Vasquezs wallet, and Vasquez gave it to appellant. During direct examination, Cortes was asked whether appellant did anything with the gun when appellant demanded Vasquezs wallet. Cortes replied, "I didnt see that. I was just looking at my friend as he turned over his wallet." Cortes testified that after Vasquez surrendered his wallet, appellant "kind of like dropped backward, and he told us to kind of like stoop down and not do anything." Appellant then left.

During direct examination, Cortes was asked what the gun looked like. He replied that all he could see was the gray barrel. During the time when Cortes was giving the money to appellant, Cortes looked at appellants face. Cortes looked at appellants face while appellant was placing his order. Cortes was not sure how much time elapsed from the time appellant placed the order to the time appellant left the restaurant, but Cortes testified it was about three minutes. During cross-examination, Cortes testified he remembered testifying during direct examination that Cortes "got a good look" at the suspects face when the suspect was placing his order. Cortes looked down while he was writing appellants order, opening the register, and removing money from it. However, Cortes was not, during that period, looking at the gun. Cortes looked at the money when he gave it to appellant. The entire incident took about ten seconds or less. At appellants preliminary hearing, Cortes testified that he first noticed appellant when appellant asked Cortes for the money. At one point during cross-examination, Cortes denied that he ever looked at the gun. He later testified he looked at it when appellant asked for the money.
During redirect examination, Cortes testified that, when appellant was pointing the gun at Cortes, appellant was about four feet from Cortes. Appellant remained that distance from Cortes during the time Cortes was looking at appellant. After appellant pointed the gun at Cortes, Cortes was still in a position to see appellants face as appellant was walking away. During recross-examination, Cortes testified that he looked at appellant when appellant asked Cortes to crouch, and when appellant was going away. When appellant was walking away, he was walking backwards and looking at Cortes. The following occurred during recross-examination: "Q. He was walking backwards looking at you? [¶] A. Yes. [¶] Q. Okay. [¶] And thats when you saw his face, when he was walking backwards? [¶] A. I had been observing it, and then when I crouched down I got up and I looked and I saw that he was walking towards the left."

After appellant left, police arrived. Cortez described appellant to police as a thin male Latino weighing about 140 pounds. A few days after the robberies, Cortes identified appellants photograph from a photographic lineup shown to Cortes by a Whittier police detective. The detective told Cortes to draw a circle around the photograph if he was certain of his identification, and Cortes complied. Cortes testified that he wrote "`Hes that person, or `This is the person[]" next to appellants photograph. During direct examination, Cortes was asked whether the person whose photograph Cortes had circled was the person who robbed him. Cortes replied, "Yes, because even though days had gone by I still was dreaming about it, and so I had it etched in my mind." At trial, Cortes identified appellant as the robber.

Evidence was presented that, at about 2:50 p.m. on November 29, 2001, appellant robbed Abram Ramirez and Elena Vigil, two employees at an El Atacor restaurant in Whittier. When police arrived at the scene shortly after the robbery, Ramirez and Vigil described the robber to police as being a thin male Latino wearing a jacket and hat. Vigil told police that the robber was about 160 or 170 pounds. Appellant was detained shortly after the robbery. The officer who transported appellant to the police station testified that, in court, appellant looked a "little bulkier" than appellant did on November 29, 2001. Appellant stood in court and Vigil testified that appellant was stocky. Two booking reports reflected that on November 29, 2001, appellant weighed 190 and 197 pounds, respectively. A detective who interviewed appellant on November 30, 2001, testified at trial on August 5, 2002, that appellant looked more stocky and muscular at the trial than during the interview. The jury acquitted appellant on counts one and two, discussed infra.

DISCUSSION

1. No Prejudicial Error Resulted From Any Trial Court Failure To Rule On Appellants Motion For A New Trial.

a. Pertinent Facts.

Counts one and two of the information alleged that on November 29, 2001, appellant robbed (Pen. Code, § 211) with firearm use (Pen. Code, § 12022.53, subd. (b)), Vigil and Ramirez, respectively. Counts three and four alleged that on November 27, 2001, appellant robbed (Pen. Code, § 211) with firearm use (Pen. Code, § 12022.53, subd. (b)), Cortes and Vasquez, respectively. The information also alleged that appellant suffered one Three Strikes law prior felony conviction, one prior serious felony conviction (Pen. Code, § 667, subd. (a)), and two prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)).

On August 7, 2002, the jury convicted appellant on counts three and four, and found true their respective firearm use allegations. After the jury indicated it was deadlocked as to counts one and two, the court granted a mistrial as to those counts. Appellant subsequently waived his right to a jury trial on the prior conviction allegations, and the case was continued.

On October 17, 2002, appellant filed a motion for a new trial. The written motions substantive assertions indicate that appellant sought a new trial only as to count four, the Vasquez count, on the ground that the verdict pertaining thereto was contrary to law or evidence (Pen. Code, § 1181(6)). However, the written motion erroneously referred to the Vasquez count as count one instead of, correctly, count four. Similarly, the written motion erroneously referred to the Cortes count as count two instead of, correctly, count three.

Where appropriate, we will refer to a count by the name of the victim alleged therein.

The written motion stated, "[d]efendant hereby requests that the court on its own motion modify or vacate the jurys verdict with respect to count 1. Defendant contends that the prosecution did not present any evidence with respect to the robbery of the victim in count 1, Fidel Vasquez, and that the jurys verdict on that count was contrary to the evidence. The defendant respectfully asks the court to vacate the verdict as to Count 1 pursuant to Penal Code section 1181(6)" (Sic.) (Some capitalization omitted.) The background section of the written motion stated, "Mr. Bender was convicted of two counts of armed robbery stemming from the same incident on 11/27/01. The jury heard evidence that a gentleman that was approximately 140 lbs., male Hispanic with a thin frame entered the late night taco stand and attempted to rob the establishment. There were three persons working at that time. During trial, we heard testimony from officers that Mr. Bender was approximately 197 to 200 lbs[] in weight and had a heavy build. The prosecution called one of the three workers, Mr. [Cortes], who testified that although the man that robbed him was thin and approximately 140 pounds, he was now sure that it was Mr. Bender that robbed him. Mr. [Cortes] was the victim in Count 2." (Sic.) It continued, "[t]he victim in Count 1, Fidel Vasquez was never called as a witness. The prosecutions entire case as to count 1 was a brief reference to Mr. Vasquez by Mr. [Cortes] in his testimony. In his testimony, Mr. [Cortes] stated that the person he believed to be Mr. Vasquez handed Mr. Bender his wallet. The court should be advised that another worker was also working at that time and was present during the robbery. It is entirely possible that Mr. [Cortes] believed he saw Mr. Vasquez hand over his wallet but in actuality was mistaken because he was facing what he believed to be a loaded gun. Mr. [Cortes] testified that the entire event was very quick and that it was so traumatic that he had nightmares regarding the incident. The prosecution rested its entire case regarding count 1 on those brief answers of Mr. [Cortes], a witness who had no capacity to accurately observe what his fellow co-workers were doing as he was focused on the weapon that was facing him. Mr. [Cortes]s testimony regarding this victim is also insufficient based on the obvious trauma he experienced during and after the incident." (Sic.) The written motion later concluded, "[b]ased on the foregoing, we respectfully ask the court to exercise its discretion under Penal Code Section 1181.6 and find that the verdict was so contrary to the evidence and vacate the verdict." (Sic.)

At sentencing on October 29, 2002, the court called the case and indicated that the prosecutor then present was not the trial prosecutor. The court acknowledged that a motion for new trial had been filed, but the court, noting that the written motion sought a new trial on what the motion referred to as count one, and not realizing that the written motions reference to count one was an erroneous reference to the Vasquez count (which in fact had been count four), concluded that the motion was moot since the jury had deadlocked on count one. The court noted that appellant had been convicted on counts three and four.

Subsequently, in open court, appellants counsel stated, "[m]y motion is with regards to victim Fidel Vasquez. I dont know specifically which count, I thought it was count 1."

The court reviewed two verdict forms, each of which reflected that appellant had been convicted on count three (the Cortes count). The court erroneously stated there were two verdicts for count three. The court did not then realize that the two verdict forms were the same except that, on one, certain information had been redacted. The court also erroneously stated, "[t]here is no count 4 verdict, so the issue is moot." Appellants counsel replied, "Very well."

The prosecutor registered surprise and asked to look at the file. The court indicated it was "looking right at it" and orally read both count three verdict forms.

The prosecutor, laboring under the misimpression that there had been no count four verdict, later asked that the matter be continued to permit a retrial on counts one, two, and four. The court indicated its desire to sentence immediately on count three. The court later stated, "So the motion for new trial is denied, its moot."

The court later stated, "[a]ctually, youre making a motion to dismiss the count 1 on the grounds — thats like a 995. I see what youre doing, I misread it, I apologize. That motion is denied." (Sic.)

During sentencing on count three (the Cortes count), the court, still erroneously believing that there had been no verdict as to count four (the Vasquez count), nonetheless used the facts pertaining to count four to aggravate appellants sentence on count three, stating, "by a preponderance of the evidence theres clear evidence" that appellant robbed Vasquez. The court sentenced appellant to prison for the upper term of five years on count three.

Later, appellant admitted that he had suffered a Three Strikes law prior felony conviction, a prior serious felony conviction (Pen. Code, § 667, subd. (a)), and a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). Appellant admitted same pursuant to an understanding that he would not be retried on count one, two, or four. Based on those admissions, the court then sentenced appellant to prison on count three for 25 years, and this second sentence included 10 years on count three, that is, a five-year upper term doubled pursuant to the Three Strikes law. The People later moved to dismiss counts one, two, and four, and the court granted that motion "depending upon the continuing validity of the verdicts."

At this point, the court and parties still erroneously believed that there had been no verdict as to count four.

After a recess, the court indicated in open court that, with the clerks assistance, the court had determined that appellant in fact had been convicted on count four (the Vasquez count). The court reinstated count four, and vacated appellants previous sentence. The court sentenced appellant a third time. Later, the court sentenced appellant to prison a fourth time, this time, for 26 years 4 months, and this fourth sentence included a term of 6 years on count three, that is, a 3-year middle term doubled pursuant to the Three Strikes law.

b. Analysis.

Appellant claims reversible error occurred because the trial court, in violation of Penal Code section 1202, erroneously refused to hear his motion for a new trial as to count four (the Vasquez count). We disagree. We assume without deciding that appellant moved for new trial as to count four when appellants counsel stated, "[m]y motion is with regards to victim Fidel Vasquez." The court arguably understood as much, since it later (erroneously) stated, "[t]here is no count 4 verdict, so the issue is moot" and also stated, "[s]o the motion for new trial is denied, its moot." We also assume the trial court failed to hear, or rule upon, the merits of appellants motion.

That section reads: "If no sufficient cause is alleged or appears to the court at the time fixed for pronouncing judgment, as provided in Section 1191, why judgment should not be pronounced, it shall thereupon be rendered; and if not rendered or pronounced within the time so fixed or to which it is continued under the provisions of Section 1191, then the defendant shall be entitled to a new trial. If the court shall refuse to hear a defendants motion for a new trial or when made shall neglect to determine such motion before pronouncing judgment or the making of an order granting probation, then the defendant shall be entitled to a new trial." (Italics added.)

Nonetheless, there is no need to decide whether that failure was error. Although appellant challenges as error the denial of his motion, he makes no independent sufficiency claim as to count four. We have recited in our factual summary, ante, pertinent facts concerning the offense alleged in count four. To the extent appellants motion for new trial suggested that appellant had been misidentified as the robber, the factual summary reveals that Cortes positively identified appellant during a photographic lineup, and identified him at trial after having had ample opportunity to observe him during the robbery. Although there was conflicting evidence as to the weight of the robber, we view the evidence in the light most favorable to the judgment. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

Moreover, the officer who transported appellant to the police station testified that, in court, appellant looked a "little bulkier" than appellant did on November 29, 2001. Similarly, a detective who interviewed appellant on November 30, 2001, testified at trial on August 5, 2002, that appellant looked more stocky and muscular at trial than during the interview. Cortess testimony was not inherently implausible.

To the extent appellants motion for new trial suggests that evidence was presented at trial that there were three persons working in the Santa Fe Springs restaurant on November 27, 2001, and, therefore, an employee other than Vasquez, and not Vasquez, was robbed, no such evidence was presented at trial. In fact, the record, fairly read, reflects that Vasquez was Cortess friend, and that Cortes observed Vasquez surrender Vasquezs wallet to appellant. Finally, we note that, during sentencing, the court, using the sentencing standard of proof, that is, preponderance of the evidence, concluded there was sufficient evidence that appellant robbed Vasquez, and the court used that fact to aggravate appellants sentence on count three.

Of course, after the court realized appellant had been convicted on count four, the court could not both impose sentence on that count and use the facts pertaining thereto to aggravate appellants sentence on count three, thus, appellant was ultimately sentenced on count three based on a middle term calculation.

In short, any failure by the trial court, in violation of Penal Code section 1202, to hear, or rule upon, appellants motion for new trial was harmless. (Cf. People v. Allen (1986) 42 Cal.3d 1222, 1260, fn. 18; People v. Lazenby (1992) 6 Cal.App.4th 1842, 1846; People v. Teddie (1981) 120 Cal.App.3d 756, 761-765.) None of the cases cited by appellant compels a contrary conclusion.

This includes People v. Sarazzawski (1945) 27 Cal.2d 7, a case in which "the trial court compelled oral argument on a motion for new trial three days after the jurys verdict after promising counsel 13 days[,]" and counsel was not prepared to argue. (Cf. People v. Ketchel (1963) 59 Cal. 2d 503, 546.) The facts in Sarazzawski indicate the defendant therein suffered prejudice.

2. Remand Is Required To Permit The Trial Court To Exercise Its Discretion To Impose Concurrent Or Consecutive Sentencing As To Count Four.

a. Pertinent Facts.

As mentioned, appellants second sentence was to prison for 25 years. This consisted of 10 years on count three (the five-year upper term, doubled pursuant to the Three Strikes law), plus 10 years for firearm use, plus 5 years for the Penal Code section 667, subdivision (a), enhancement. The People later moved to dismiss counts one, two, and four, and the court conditionally granted that motion. After a recess, the court indicated in open court that, with the clerks assistance, the court had determined that appellant in fact had been convicted on count four (the Vasquez count).

The one-year term for the Penal Code section 667.5, subdivision (b), enhancement was imposed and suspended.

The following then occurred: "The Court: . . . So count 4 is reinstated. And that would be one-third of the midterm, right? [¶] [The Prosecutor]: Correct. [¶] The Court: For one year. [¶] And then that is doubled pursuant to the 1170.12, which is mandatory, for two years. [¶] And then I believe the gun enhancement is also mandatory. [¶] [The Prosecutor]: Correct, a third of it. [¶] The Court: A third of it. [¶] So I dont have any sentencing discretion." (Italics added.)

The court later stated, "it seems the court really has no discretion as to these, and as to count 4, then, he is sentenced to one-third of the midterm of one year. That is doubled for an actual term of two years. And he is sentenced to one-third of the midterm on the gun use, for three years four months, for a total of 31 years four months." (Italics added.) Accordingly, appellants third sentence, including enhancements, was, in total, 30 years 4 months, consisting of 25 years on count 3, plus 5 years 4 months on count 4. (The trial court erroneously referred to the total as 31 years 4 months.)

The parties then indicated that they had intended, and that the court apparently had agreed, that if appellant were sentenced on count four, the term on count three would be based on a middle term calculation for that count. The court then sentenced appellant to prison a fourth time, this time for 26 years 4 months, consisting of a term of 6 years on count 3 (the middle term doubled pursuant to the Three Strikes law), plus 10 years for firearm use, plus 5 years for the Penal Code section 667, subdivision (a) enhancement, with a consecutive term of 2 years on count 4 (one-third the middle term, doubled pursuant to the Three Strikes law), plus 3 years 4 months for firearm use.

The one-year term for the Penal Code section 667.5, subdivision (b), enhancement was again imposed and suspended.

b. Analysis.

It is clear from the above that the trial court did not believe it had any sentencing discretion with respect to any sentencing choices pertaining to count four. In particular, as to the sentencing choice of concurrent versus consecutive sentencing, the following occurred during appellants third sentencing, "The Court: . . . So count 4 is reinstated. And that would be one-third of the midterm, right? [¶] [The Prosecutor]: Correct. [¶] The Court: For one year." (Italics added.)

The court did not say "could" or "might," terms which might have indicated the courts awareness that, pursuant to Penal Code section 669, the court had discretion to impose concurrent or consecutive sentencing as to count four. The court said "would," a term indicating certainty that consecutive sentencing was required. The courts question gave no hint the court was aware of its discretion. Certainly, there is no discussion concerning concurrent sentencing in the record. In sum, during appellants third sentencing, the court treated sentencing on court four as a mere mandatorily consecutive add-on, and the courts treatment of that count during appellants final sentence was no different.

Penal Code section 669 states, in relevant part, "When any person is convicted of two or more crimes, . . . the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively."

Penal Code section 1170.1, subdivision (a), states, in relevant part, "when any person is convicted of two or more felonies, . . . and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements . . . . The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment . . . ." (Italics added.)

"Defendants are entitled to sentencing decisions made in the exercise of the `informed discretion of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that `informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendants record. [Citation.]" (People v. Belmontes (1983) 34 Cal. 3d 335, 348, fn. 8.) We will remand the matter to permit the trial court to exercise its discretion to impose concurrent or consecutive sentencing on count four. We express no opinion as to how the court should exercise its discretion.

3. There Was Sufficient Evidence Of Firearm Use As To Count Four.

We reject appellants sufficiency claim as to the firearm use enhancement pertaining to count four (the Vasquez count). The jury was instructed, pursuant to CALJIC No. 17.19 (2002 revision) on personal use of a firearm for purposes of Penal Code section 12022.53, subdivision (b). That instruction read, in pertinent part, "The term `personally used a firearm, as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner, . . ." (Cf. People v. Wims (1995) 10 Cal.4th 293, 302.)

Penal Code section 12022.53, subdivision (b), states, "Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), and who in the commission of that felony personally uses a firearm, shall be punished . . . ." (Italics added.)

Appellant makes no independent sufficiency claim as to count three (the Cortes count) or its firearm use enhancement. There was substantial evidence that appellant pointed a gun at Cortes, used profanity to threaten him, and demanded money. Cortes gave appellant $300. Appellant demanded any money under the cash register box, later twice demanded Cortess wallet, and Cortes, afraid, surrendered his wallet. There is no dispute that, during the robbery of Cortes, appellant intentionally displayed a firearm in a menacing manner. There was no evidence that appellant ceased to do so at anytime during the Cortes robbery.

Vasquez was behind Cortes but "further back" when Cortes surrendered Cortess wallet. Vasquez approached to see what appellant would order. Appellant demanded Vasquezs wallet, and Vasquez gave it to appellant. People do not normally give their wallets to strangers; the jury reasonably could have believed that Vasquez, like Cortes, surrendered his wallet because Vasquez was afraid. There was no evidence that, during this period, appellant ceased from intentionally displaying a firearm in a menacing manner, and the jury reasonably could have concluded that Vasquezs fear was a result of appellants continued intentional display of the firearm in a menacing manner. We note appellant later told both Cortes and Vasquez to stoop and do nothing as appellant retreated. There was sufficient evidence to support the true finding as to the Penal Code section 12022.53, subdivision (b), enhancement allegation. (Cf. People v. Wims, supra, 10 Cal.4th at p. 302; People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

4. The Trial Court Did Not Erroneously Fail To Instruct On A Lesser Included Enhancement As To Count Four.

Appellant claims, as to count four (the Vasquez count) that the trial court erroneously failed to instruct sua sponte on being armed with a firearm (Pen. Code, § 12022, subd. (a)) as a lesser included enhancement of the alleged Penal Code section 12022.53, subdivision (b), enhancement. We disagree. Trial courts have no duty to instruct sua sponte on lesser included enhancements. (People v. Majors (1998) 18 Cal.4th 385, 410-411.) Moreover, even if such a duty existed, there was no substantial evidence as to count four that appellant was armed with a firearm for purposes of Penal Code section 12022, subdivision (a), but did not personally use a firearm for purposes of Penal Code section 12022.53, subdivision (b).

As to the latter point, the fact that, during direct examination, Cortes was asked whether appellant did anything with the gun when appellant demanded Vasquezs wallet, and Cortes replied, "I didnt see that. I was just looking at my friend as he turned over his wallet[,]" does not compel a contrary conclusion. There was substantial evidence from Cortess testimony prior to that point that appellant pulled out a gun and pointed it at Cortes, and continued to intentionally display the gun in a menacing manner during the robberies of Cortes and Vasquez. Cortess above quoted testimony reasonably could have been understood as meaning that Cortes did not see appellant do anything with the gun other than what Cortes already had testified appellant had been doing, namely, intentionally displaying it in a menacing manner. In short, appellant was culpable, if at all, of personal use a firearm for purposes of Penal Code section 12022.53, subdivision (b). (Cf. People v. Leach (1985) 41 Cal.3d 92, 106.) None of the cases cited by appellant compels a contrary conclusion.

This includes Apprendi v. New Jersey (2002) 530 U.S. 466 . We note it was a jury that found true the Penal Code section 12022.53, subdivision (b), enhancement pertaining to count four.

5. Imposition Of Both Firearm Use Enhancements Did Not Violate Penal Code Section 654 .

Appellant claims Penal Code section 654, barred punishment on both Penal Code section 12022.53, subdivision (b), enhancements. We disagree. We assume without deciding that Penal Code section 654, applies to such conduct enhancements. (See People v. Reeves (2001) 91 Cal.App.4th 14, 54-57.) However, "Penal Code section 654 is inapplicable when the offenses arising out of a single act or transaction are crimes of violence committed against different victims." (People v. Anderson (1990) 221 Cal.App.3d 331, 338.)" (People v. Alvarez (1992) 9 Cal.App.4th 121, 126.)

The Supreme Court has not decided whether Penal Code section 654 applies to weapons enhancements. (People v. Masbruch (1996) 13 Cal.4th 1001, 1013.)

6. Appellant Is Entitled To Additional Penal Code Section 4019 Conduct Credit.

In the present case, appellant was arrested on November 29, 2001, and remained in custody until he was sentenced to prison on October 29, 2002, a total of 335 days, inclusive. The trial court awarded him a total of 357 days of precommitment credit, consisting of 327 days of custody credit and 30 days of conduct credit. Based on the present record, the award should have been 385 days of precommitment credit, consisting of 335 days of custody credit, and 50 days of conduct credit (as 15% of the custody credit award). (Cf. People v. Bravo (1990) 219 Cal.App.3d 729, 731; People v. Smith (1989) 211 Cal.App.3d 523, 527; Pen. Code, §§ 667.5, subd. (c)(9), 2933.1, subds. (a) and (c).)

Respondent suggests we should remand the matter for recalculation of the conduct credit award because the record does not affirmatively reflect why the sentencing court awarded appellant only 30 days of conduct credit. However, appellant has met his burden of demonstrating error from the record. We note the record also does not affirmatively reflect that appellant was in custody during the periods between the dates of the minute orders that reflect that appellant was remanded, but respondent reasonably assumes appellant was in custody during those interim periods, there being nothing in the record indicating otherwise. (People v. Bravo, supra, 219 Cal.App.3d at pp. 731-732.) Similarly, we assume appellant is entitled to a full award of conduct credit, absent anything in the record indicating otherwise. Normally, therefore, we would correct the precommitment credit award here. However, since this matter is being remanded for resentencing as to count four, we have no doubt that, following remand, the trial court will award Penal Code section 4019 conduct credit consistent with this opinion unless, for reasons not disclosed by this record, appellant is not entitled to same.

DISPOSITION

The judgment is modified by vacating appellants sentence on count four (the Vasquez count) and the trial courts award of Penal Code section 4019 conduct credit, and the matter is remanded for the limited purpose of permitting the trial court to exercise its discretion to impose concurrent or consecutive sentencing on count four, and to recalculate and award Penal Code section 4019 conduct credit. As modified, the judgment is affirmed. The trial court is directed to forward an amended abstract of judgment to the Department of Corrections.

We concur: KITCHING, J. and ALDRICH, J.


Summaries of

People v. Bender

Court of Appeals of California, Second District, Division Three.
Nov 6, 2003
No. B163450 (Cal. Ct. App. Nov. 6, 2003)
Case details for

People v. Bender

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ARNOLD BENDER, Defendant and…

Court:Court of Appeals of California, Second District, Division Three.

Date published: Nov 6, 2003

Citations

No. B163450 (Cal. Ct. App. Nov. 6, 2003)