Opinion
B223374
09-15-2011
THE PEOPLE, Plaintiff and Respondent, v. ALEX VINCENT BRACAMONTE et al., Defendants and Appellants.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Alex Vincent Bracamonte. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant Raul Garcia Vasquez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Timothy M. Weiner, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VA106046)
APPEAL from a judgment of the Superior Court of Los Angeles County. Dewey Lawes Falcone, Judge. Affirmed as to Alex Vincent Bracamonte. Affirmed in part, vacated in part and remanded as to Raul Garcia Vasquez.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Alex Vincent Bracamonte.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant Raul Garcia Vasquez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellants Alex Vincent Bracamonte (Bracamonte) and Raul Garcia Vasquez (Vasquez) were convicted of the murder of Jose Jesus "Jesse" Torres (Torres). They were tried jointly to separate juries. Bracamonte's jury convicted him of first degree murder. Vasquez's jury convicted him of second degree murder, shooting at an occupied motor vehicle, and possession of a firearm by a felon. Bracamonte asserts instructional error and joins in any contentions raised by Vasquez that may accrue to his benefit. Vasquez also asserts instructional error, as well as errors in the adjudication of prior strike allegations and in the application of firearm enhancements. The Attorney General agrees that error occurred in the adjudication of Vasquez's prior strike allegations and contends that error also occurred in the calculation of his conduct credits.
As to Bracamonte, we find no error and affirm. As to Vasquez, we vacate his sentence for error regarding his prior strike allegations and remand for further proceedings on those allegations. We also find error in the calculation of his conduct credits. In all other respects, we affirm the judgment as to Vasquez.
STATEMENT OF FACTS
1. Prosecution Evidence Presented to Both Juries
Torres was found dead on December 1, 2006. He had a furniture manufacturing business that closed about two years before he was killed, and he also ran a cockfighting venture out of his furniture shop. He had been unemployed since the time he closed the furniture business. Luz Torres (Luz) was his wife. Approximately six months prior to his death, he took out a $200,000 loan against the couple's house. Torres told Luz they were going to start an import/export business, but she never saw the money and does not know what Torres did with it. Torres traveled to Tijuana and Arizona for business many times. He always told Luz he was going to Tijuana with someone named "Alex." Luz also told the investigating officer in the case, Sergeant Kevin Lloyd, that Torres had gone to Ensenada with "Alex" and another man, "Tony," and that she suspected they were involved in illegal activity because Torres was always changing his story about their business venture. Luz gave Sergeant Lloyd a checkbook she found in her and Torres's room, and the account turned out to be a joint account in Bracamonte's and Torres's names with over $100,000 in it.
Adela Flores (Flores) is Luz's sister. Flores loaned Torres $5,000 in October or November 2006. Torres told her that he would repay her double the loan, or repay her with interest, on or before December 1, 2006. He told her that he was going to use the money to start a new business. She received a voicemail from him approximately two weeks before December 1, 2006, telling her that he would, indeed, have her money before December 1, and he was getting the money from "Alex."
Muriel Bracamonte (Muriel) is appellant Bracamonte's daughter. She was also engaged to appellant Vasquez in December 2006, though they never married. Vasquez fathered two of her children. They had been together since 2002. Muriel, Vasquez, and Bracamonte all lived in the same house in December 2006, approximately three or four blocks from the location at which Torres's body was discovered. Muriel testified that Bracamonte did not approve of her relationship with Vasquez, and that Bracamonte and Vasquez did not have much to do with each other.
Approximately a week before Torres was killed, Muriel saw Vasquez with a gun. On November 30, 2006, she saw Bracamonte speak with Vasquez at their house, and approximately two minutes later, Vasquez left with his car keys. It was dark when he left. Muriel did not see if he left alone or with Bracamonte. Vasquez returned home alone approximately 20 to 30 minutes later with a bag of chips. Muriel did not see Bracamonte for a few days.
On December 1, 2006, at approximately 6:00 a.m., Deputy Michael Horsley discovered the body of a Hispanic male in the driver's side of a silver pickup truck at 9000 Maie Avenue in Los Angeles. The male was later identified from the driver's license found on the body as Torres. Torres had multiple stab wounds to the chest and gunshot wounds to the head and chest area.
Dr. Lisa Scheinen, a deputy medical examiner with the Los Angeles County Coroner's Office, testified at trial. She explained that Torres suffered three gunshot wounds. One bullet went through the left neck area and exited the through the right of the neck. This was a fatal wound from which Torres would have died within a few minutes. Another bullet went through the lower chest and a small part of the upper abdomen and lodged in the right lung. This was a very serious fatal wound from which Torres would have gone into shock in seconds, and he would have died within a few minutes. The third bullet went into and exited the back of the scalp and did not cause a fatal wound.
Torres also suffered six stab wounds. He had four nonfatal stab wounds -- three in the upper part of his chest and one in the middle of his chest. He had two fatal stab wounds in the lower chest/upper abdomen. Torres had absolutely no defensive wounds on his hands or arms, which one would expect to see on someone who was attacked with a knife. For this and other reasons it was Dr. Scheinen's opinion that Torres was shot first and then stabbed, so that he was still alive but either dying or unconscious and not moving when he was stabbed. His stab wounds were also consistent with being stabbed by an attacker seated in the right front passenger seat.
Deputy David Kim recovered three bullets from the car -- one from the right rear passenger seat, one from the top of a toolbox on the right rear passenger floorboard, and one from the 12 o'clock position on the steering wheel of the car. Dr. Scheinen sent the bullet she recovered from Torres's right lung to Deputy Kim. He concluded that the bullet recovered from the right rear passenger seat and the one recovered from Torres's body were fired from the same gun. The bullets recovered from the toolbox and the steering wheel had similar markings on them, but they were damaged, so he could not conclusively determine whether they were fired from the same gun as the other two bullets.
Deputy Kim also discovered gunshot residue on the headrest of the driver's seat, indicating that the gun was fired at a close range to the driver's seat, perhaps a couple of feet at the most. The gunshot residue was not consistent with the shooter firing from the front of the car, but was an indication that the shooter was on the driver's side of the car.
A criminalist with the Los Angeles County Sheriff's Department collected blood samples from the truck on December 1, 2006 -- one from the outside of the truck, and two from inside the truck. The samples were still a relatively bright red when collected, indicating that they were fresh stains and not old blood stains, which would have started to brown. The two from inside the truck matched the DNA of Torres, the victim.
In June 2007, Deputy Robert Moran observed appellant Bracamonte drink from a Styrofoam cup of water and wipe his forehead and hands with paper towels, and he further observed Bracamonte throw those items away. Deputy Moran recovered the cup and paper towels from the trash and put them into an evidence locker. The third bloodstain collected from the truck matched the DNA found on the Styrofoam cup and napkin, as well as an oral swab taken later from Bracamonte.
On June 5, 2007, before Muriel gave a statement to Sergeant Lloyd, she met with Bracamonte and Vasquez in an alley. Bracamonte told her to "shut [her] mouth, that [she] don't know anything." Bracamonte told Vasquez that "he knew what to say."
On June 9, 2008, after the investigation had been ongoing for over a year, Bracamonte and Vasquez found themselves in custody and in the same cell. Their conversation was recorded and transcribed. During the conversation, the two said the following:
"[BRACAMONTE:] all I can tell them is that: You know what? You followed me . . . and saw ho -- how he . . . uh, we got into it. And you thought -- you, to defend me . . . and that's all. If you tell them more that's your business.A little later in the conversation, Bracamonte stated: "I'm also gonna wait to see an attorney so he can tell me what I should do -- because I don't know. Yes I was there . . . and we did fight because I asked him for some money and it was around Christmas."
"[VASQUEZ:] Umm . . .
"[BRACAMONTE:] Because no one else got into the car other than me.
"[VASQUEZ:] Uh huh. [unintelligible] witnesses. Yes.
"[BRACAMONTE:] And then the son-of-a bitch pulls the knife out on me, I was gonna -- I wasn't gonna let him stab me.
"[VASQUEZ:] Umm . . .
"[BRACAMONTE:] That's why I turned it and . . . I put it on him, but . . . uh, what, what do you want me to do? Let him stab me with the knife . . . ? [unintelligible] And he'd be just okay? He had already bu --burned me with so much money; because he never paid David that money."
2. Prosecution Evidence Presented Only to Bracamonte's Jury
On May 31, 2008, Sergeant Lloyd conducted a recorded interview with Bracamonte. Bracamonte told Sergeant Lloyd that he had plans to meet Torres the day before his body was found, but Torres never showed up. Bracamonte and Torres were trying to get some joint business ventures started. Bracamonte said that Torres's brother called him on the evening of December 1, 2006, to let him know that Torres was dead.
3. Prosecution Evidence Presented Only to Vasquez's Jury
Sergeant Lloyd interviewed Vasquez on June 5, 2008. Vasquez stated that one night Bracamonte asked Vasquez to go with him to meet Torres and give Torres some money. Bracamonte was carrying a large manila envelope that he said was full of money. He was also carrying a semiautomatic gun and a sheathed knife. He asked Vasquez to "watch [his] back." Vasquez left their house on bike and Bracamonte left separately. Vasquez met Bracamonte at the park four or five blocks from their house, and approximately 10 minutes later Torres arrived in his truck and parked. Bracamonte went to talk to Torres and got into the truck. Vasquez stated that Bracamonte gave him the gun to hold and told him it was not loaded. Vasquez said he was joking around with Torres and talking, and he pointed the gun at Torres in jest believing it was not loaded. He said the gun went off in his hand and hit Torres in the head by his ear. He said he did not recall if the gun went off again because he "freaked out" and started crying. He saw Bracamonte stab Torres at least two times, and Torres tried to fight back. Vasquez reported that, after the incident, he gave the gun to Bracamonte, dropped Bracamonte at a store, and went home.
Neither defendant presented an affirmative defense.
PROCEDURAL HISTORY
Bracamonte and Vasquez were each charged with one count of murder (Pen. Code, § 187, subd. (a)) and one count of shooting at an occupied motor vehicle (§ 246), though the shooting at an occupied motor vehicle count was subsequently dismissed as to Bracamonte. Vasquez was also charged with one count of possession of a firearm by a felon. The information further alleged that Vasquez personally and intentionally discharged a handgun and Bracamonte personally used a knife. It was also alleged that Vasquez had suffered a prior conviction within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (a)(1) and (b) through (i).
All further statutory references are to the Penal Code unless otherwise stated.
Bracamonte's jury convicted him of first degree murder and found true that he had personally used a knife within the meaning of section 12022, subdivision (b)(1). The court sentenced him to a total term of 26 years to life. Vasquez's jury convicted him of second degree murder, shooting at an occupied motor vehicle, and possession of a firearm by a felon. The jury also found true that he had personally and intentionally discharged a handgun within the meaning of section 12022.53, subdivisions (b) through (d). The court sentenced him to a total term of 60 years to life.
We discuss further details of Vasquez's sentence in part 2, post.
DISCUSSION
1. Jury Instruction Issues
Bracamonte and Vasquez both contend that the trial court committed reversible error in failing to instruct their juries on certain lesser included offenses. "An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense." (People v. Waidla (2000) 22 Cal.4th 690, 733.) Applying this standard of review, we do not find reversible error as to either appellant.
A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. (People v. Lewis (2001) 25 Cal.4th 610, 645 (Lewis).) "To protect this right and the broader interest of safeguarding the jury's function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present." (Ibid.) "Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction." (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) Evidence is substantial for this purpose if it could cause a jury composed of reasonable persons to conclude that the defendant committed the lesser but not the greater offense. (Ibid.)
We review error in failing to instruct on a lesser included offense under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (Breverman, supra, 19 Cal.4th at p. 165.) Accordingly, when analyzing whether a defendant was prejudiced by a trial court's erroneous decision not to instruct on a lesser included offense, we must decide if it is reasonably probable that the jury would have found the defendant guilty of only the lesser offense. (People v. Leal (2009) 180 Cal.App.4th 782, 792.) Moreover, "[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (Lewis, supra, 25 Cal.4th at p. 646.)
A. Bracamonte's Claim
Bracamonte contends that the trial court committed reversible error by failing to instruct on voluntary manslaughter based on imperfect self-defense. We disagree.
Murder, the crime of which the jury convicted Bracamonte, is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Manslaughter is the unlawful killing of a human being without malice. (§ 192.) Voluntary manslaughter is a lesser offense included within the crime of murder. (People v. Barton (1995) 12 Cal.4th 186, 203.) "Imperfect self-defense is the actual, but unreasonable, belief in the need to resort to self-defense to protect oneself from imminent peril. [Citations.] When imperfect self-defense applies, it reduces a homicide from murder to voluntary manslaughter because the killing lacks malice aforethought." (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178.)
Assuming arguendo that trial court erred in failing to instruct on imperfect self-defense, the failure to so instruct was harmless. The trial court instructed Bracamonte's jury on first degree murder, second degree murder, malice, voluntary manslaughter based on sudden quarrel or heat of passion, and, notably, justifiable homicide in self-defense. Bracamonte argues that an instruction on imperfect self-defense was warranted on the theory that Torres pulled a knife on him, and he turned it on Torres to avoid being stabbed. But this is essentially the theory of perfect self-defense proffered by Bracamonte at trial. The jury found Bracamonte guilty of first degree murder after less than a day of deliberations. The jury unanimously and necessarily rejected Bracamonte's theory that he reacted on the spur of the moment to Torres's pulling a knife on him and killed in self-defense. Instead, when the jury convicted Torres of first degree murder, it necessarily decided that he stabbed Torres with malice, premeditation, and deliberation. We do not believe it is reasonably probable that an imperfect self-defense instruction would have resulted in a voluntary manslaughter conviction, under these circumstances.
B. Vasquez's Claim
We turn next to Vasquez's claim of instructional error. Vasquez maintains that the trial court committed reversible error in failing to instruct the jury on involuntary manslaughter as a lesser offense included within murder. Again, we disagree.
"Involuntary manslaughter is a lesser offense of murder, distinguished by its mens rea. [Citation.] The mens rea for murder is specific intent to kill or conscious disregard for life. [Citation.] Absent these states of mind, the defendant may incur homicide culpability for involuntary manslaughter. [Citations.] Through statutory definition and judicial development, there are three types of acts that can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous felony." (People v. Butler (2010) 187 Cal.App.4th 998, 1006 (Butler).) The necessary mens rea for involuntary manslaughter is criminal negligence, whether the conduct underlying the offense is a misdemeanor, a lawful act, or a noninherently dangerous felony. (Id. at p. 1008.)
"Both murder (based on implied malice) and involuntary manslaughter involve a disregard for life; however, for murder the disregard is judged by a subjective standard whereas for involuntary manslaughter the disregard is judged by an objective standard. [Citations.] Implied malice murder requires a defendant's conscious disregard for life, meaning that the defendant subjectively appreciated the risk involved. [Citation.] In contrast, involuntary manslaughter merely requires a showing that a reasonable person would have been aware of the risk. [Citation.] Thus, even if the defendant had a subjective, good faith belief that his or her actions posed no risk, involuntary manslaughter culpability based on criminal negligence is warranted if the defendant's belief was objectively unreasonable." (Butler, supra, 187 Cal.App.4th at pp. 1008-1009.)
Here, assuming arguendo again that error occurred, any such error was harmless. The court instructed Vasquez's jury on first degree murder, second degree murder, and voluntary manslaughter based on sudden quarrel or heat of passion. It also instructed the jury on justifiable homicide in defense of another and intentional and personal discharge of a firearm causing great bodily injury or death. Vasquez contends that an involuntary manslaughter instruction was warranted on the theory that he was merely brandishing a firearm (a misdemeanor offense) and discharged the gun unintentionally. But the jury convicted Vasquez of second degree murder and found true the allegation that he personally and intentionally discharged the gun. To reach this conclusion, the jury necessarily rejected the cornerstone of his version of the events -- that the gun went off accidentally when he was displaying it in jest. Vasquez fails to show that it was reasonably probable an involuntary manslaughter instruction would have led to a more favorable outcome.
2. Vasquez's Sentence as a Second Strike Offender
Vasquez next argues that the trial court erred when it sentenced him as a second strike offender because he neither admitted the prior strike nor did the court adjudicate the prior strike. The Attorney General agrees that Vasquez did not admit the prior strike and the court did not adjudicate the prior, and therefore concedes that the trial court was not authorized to use the prior strike in sentencing. The Attorney General suggests remanding the matter for resentencing. We agree that remand is appropriate.
The information specially alleged that Vasquez had suffered a prior serious or violent felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (a)(1) and (b) through (i). The same prior conviction was alleged in count 3 of the information charging him with possession of a firearm by a felon. The court bifurcated trial on the prior strike upon Vasquez's motion.
Shortly before Vasquez's trial began, the parties agreed that he would stipulate to the prior felony conviction for purposes of count 3 only:
"[PROSECUTOR]: Your Honor, before we go on, there's an issue regarding ex-con with a gun. My understanding, having spoken to Mr. Herin [defense counsel], is that there's going to be a stipulation. . . . Is that true that the People won't be required to put on a witness to show the validity of the prior conviction back in 1981?
"THE COURT: For the purpose of that count only?
"[PROSECUTOR]: Yes. So, if that's the case, if we can get a stipulation, then maybe I can refer to it in my opening statement briefly.
"THE COURT: That's count 3, is it?
"[PROSECUTOR]: That's count 3, I believe. Let me check real
quick.
"[DEFENSE COUNSEL]: Which do you want him to admit to? The prior strike? [¶] . . . [¶]
"[PROSECUTOR]: Just that he was convicted of a felony. It doesn't have to be specific.
"THE COURT: If you stipulate to that, I'll caution the jury that it's only to satisfy an element, and they are not to consider that for any other purpose.
"[DEFENSE COUNSEL]: Yes, we'll stipulate.
"THE COURT: Okay.
"[PROSECUTOR]: Does it have to be a personal stipulation in front of the jury? How does that work?
"THE COURT: No. If Mr. Vasquez agrees that the jury will hear a stipulation as to count 3, ex-felon with a gun, that you were convicted of a felony, and that will be a stipulation, that will obviate any proof to bring that in only for the purposes of that count. If you stipulate to that, I'll caution that jury that they're not to consider that for any other purpose other than that count."
Vasquez then proceeded to stipulate that he was "convicted on June 19, 1985, of . . . section 459 under case A465659 for purposes of [the People] proving up count 3 only." During the reading of jury instructions, the stipulation was recited in front of the jury.
"[PROSECUTOR]: Mr. Herin, regarding count 3 and count 3 only, does your client stipulate for the purposes of count 3 that, on or about the date of June 19, 1985, he was convicted of a felony in L.A. County Superior Court case No. A465659? Does your client stipulate to that?
"[DEFENSE COUNSEL]: For purposes of this count, yes.
"[PROSECUTOR]: People join.
"THE COURT: So you are clear, count 3 is possession of a firearm by a convicted felon. It's been stipulated to avoid more time and evidence, for the purpose of this charge only, not to be considered by you for any other purpose, that Mr. Vasquez was a convicted felon at the time of this crime."
At Vasquez's sentencing hearing, the court inquired, "the strike conviction for . . . section 459 in case No. A465659, that was admitted to when we began this trial?" Both defense counsel and counsel for the People responded affirmatively that the strike had been admitted to.
The court proceeded to sentence Vasquez as a second strike offender, giving him 15 years to life doubled for the prior strike for a total of 30 years to life on the second degree murder count. It further imposed a five-year sentence for "the 667.5(b) prior."The court also doubled Vasquez's sentence on the counts for shooting at an occupied motor vehicle and possession of a firearm by a felon, though it stayed the former term and ordered the latter term to run concurrently. With the consecutive 25 years to life the court ordered for the section 12022.53 firearm enhancement, Vasquez's total sentence was 60 years to life.
The reference to section 667.5, subdivision (b), appears to be an error. The information did not allege a prior prison term under section 667.5, but a prior conviction under section 667, subdivision (a)(1).
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The record is clear that Vasquez did not admit the prior strike allegations for sentencing purposes but stipulated to the prior conviction only for purposes of the offense alleged in count 3, possession of a firearm by a felon. The record is equally clear that there was no trial on the prior strike allegations. The People were required to plead and prove the prior strike. (§§ 667, subds. (c), (e)(1), (e)(2)(A), (f)(1), 1170.12, subds. (a), (c)(1), (c)(2)(A), (d)(1); People v. Blackburn (1999) 72 Cal.App.4th 1520, 1525-1526.) Because the prior strike was not proven through either an adjudication or an admission, Vasquez should not have been sentenced as a second strike offender. We therefore vacate Vasquez's sentence and remand the matter for an adjudication of the prior strike allegations. (People v. Scott (2000) 85 Cal.App.4th 905, 915, 925.)
3. Vasquez's Section 12022.53, Subdivision (d) Firearm Enhancement
The information alleged that Vasquez personally and intentionally discharged a firearm, which caused great bodily injury and death within the meaning of section 12022.53, subdivision (d). The jury found this allegation true, and Vasquez was sentenced accordingly. Vasquez contends that the imposition of this enhancement violates California's rule against multiple convictions and principles of double jeopardy when he was also charged with and convicted of second degree murder. This is so, he argues, because the enhancement requires that he proximately caused the death of the victim -- also an essential element of murder. Because controlling California Supreme Court authority has considered and rejected Vasquez's argument, we disagree.
The rule against multiple convictions holds that a defendant may not be convicted of both a greater and a lesser included offense. (People v. Pearson (1986) 42 Cal.3d 351, 355.) Thus, where a defendant is convicted of two offenses, and one is a necessarily included lesser offense of the other, the conviction on the lesser offense must be reversed. (Ibid.) Vasquez maintains that the section 12022.53 enhancement is a lesser included offense of murder.
In People v. Izaguirre (2007) 42 Cal.4th 126, 129 (Izaguirre), the jury convicted the defendant of first degree murder and found true the section 12022.53, subdivision (d) enhancement allegation. The defendant argued that the firearm enhancement should be treated as an offense for purposes of fundamental due process. (Izaguirre, at p. 130.) He further argued that the firearm enhancement was an offense necessarily included within first degree murder and should be struck under the multiple conviction rule. (Id. at p. 132.) The Supreme Court disagreed, holding that "[s]ince enhancements are not legal elements of the offenses to which they attach, they are not considered in defining necessarily included offenses" under the multiple conviction rule. (Id. at p. 128; id. at p. 134 ["To the extent defendant claims enhancements should be considered when applying the multiple conviction rule to charged offenses, our holding in [People v. Reed (2006)] 38 Cal.4th 1224, controls. They may not"].) Moreover, the Izaguirre court also rejected a double jeopardy argument, holding: "The rule . . . barring consideration of enhancements in defining necessarily included charged offenses under the multiple conviction rule does not implicate the double jeopardy clause's protection against a second prosecution for the same offense after acquittal or conviction. We are not here concerned with a retrial or 'second prosecution,' but instead with a unitary trial . . . ." (Id. at p. 134.)
Vasquez's argument here is indistinguishable from the defendant's argument in Izaguirre. We reject Vasquez's argument in view of Izaguirre. Vasquez recognizes that we might "believe" ourselves bound by Izaguirre and its companion case, People v. Sloan (2007) 42 Cal.4th 110. He nevertheless raises his argument "to preserve his claims for subsequent review," and invites us to record any disagreement with existing law on this matter. We decline the invitation to do so.
In a related vein, he also invites us to reject certain United States Supreme Court authority to hold that the sentencing enhancements in his case constitute "multiple punishments" barred by the federal double jeopardy clause. He contends that the authority permitting multiple punishments in a unitary proceeding is undermined by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Sattazahn v. Pennsylvania (2003) 537 U.S. 101 (Sattazahn). We also decline this invitation.
As the United States Supreme Court held in Missouri v. Hunter (1983) 459 U.S. 359, 368-369 (Hunter), when "a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the 'same' conduct . . . , a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial." The double jeopardy clause does not preclude multiple punishments in this situation, when the legislature has authorized multiple punishments. (Id. at p. 368.) The enhancement statutes at issue here are just the type of the cumulative punishments authorized by Hunter.
Vasquez contends in a conclusory manner that Apprendi and Sattazahn compel a reassessment of the Hunter holding, but he does not explain why or how these cases overrule or undermine Hunter. On this matter of federal constitutional law, we are bound by Hunter and reject Vasquez's last argument.
4. Vasquez's Presentence Conduct Credits
The Attorney General contends that the trial court erred in awarding Vasquez 693 days of good time/work time credits because he was ineligible for them under section 2933.2. Vasquez does not address this point in his reply brief. We agree with the Attorney General.
On the indeterminate sentence for second degree murder, the court did not award Vasquez any good time/work time credits, but gave him credit for 693 actual days in custody. On the determinate sentence for shooting an occupied motor vehicle -- which the court stayed -- the court awarded him credit for 693 actual days and 693 days of good time/work time credits, for a total of 1386 days of credit.
Vasquez was not entitled to the 693 days of good time/work time credits on his determinate sentence for shooting at an occupied motor vehicle. Section 4019 permits the award of presentence good time/work time credits against a defendant's sentence. However, section 2933.2, subdivision (c), provides that any person convicted of murder shall not accrue presentence credits pursuant to section 4019. "[S]ection 2933.2 applies to the offender not to the offense and so limits a murderer's conduct credits irrespective of whether or not all his or her offenses were murder." (People v. Wheeler (2003) 105 Cal.App.4th 1423, 1432.) For this reason, "section 2933.2, subdivision (c) should be interpreted to bar presentence conduct credits against determinate as well as indeterminate terms of a murderer's sentence." (People v. McNamee (2002) 96 Cal.App.4th 66, 74.)
Section 2933.2, subdivision (c) bars any presentence conduct credits on Vasquez's sentence for shooting at an occupied motor vehicle, and on any other determinate sentences in this proceeding. On remand, his presentence conduct credits should be recalculated accordingly.
DISPOSITION
The judgment of conviction with respect to Bracamonte is affirmed. With respect to Vasquez, the judgment is affirmed, except that his sentence is vacated, and the matter is remanded for further proceedings consistent with this opinion.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.