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People v. Browner

California Court of Appeals, Second District, Fourth Division
Sep 23, 2008
No. B198836 (Cal. Ct. App. Sep. 23, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DEMETERIUS BROWNER, Defendant and Appellant. B198836 California Court of Appeal, Second District, Fourth Division September 23, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA081025, Eleanor J. Hunter, Judge.

Dwyer & Biggs and John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

MANELLA, J.

FACTUAL AND PROCEDURAL BACKGROUND

A. Conviction and Sentence

Appellant Demeterius Browner was tried and convicted of first degree murder. (Pen. Code, § 187.) The jury also found true the following special allegations: appellant personally used a firearm within the meaning of 12022.53, subdivision (b); appellant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); appellant personally and intentionally discharged a firearm causing great bodily injury and death within the meaning of section 12022.53, subdivision (d); appellant committed the murder while engaged in the commission of a robbery within the meaning of section 190.2, subdivision (a)(17); and appellant committed the murder for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b).

Unless otherwise indicated, statutory references are to the Penal Code.

At the time of committing the offense, appellant was 15 years old, but was tried and convicted as an adult. The court sentenced appellant to a term of 25 years to life for murder plus a consecutive term of 25 years to life under section 12022.53, subdivision (d), for a total sentence of 50 years to life.

The court stayed sentence on the other special allegations.

B. Evidence at Trial

The issues raised by appellant do not require a comprehensive recitation of the facts, so we address them briefly. On July 29, 2005, at approximately 6:00 p.m., the victim, Charles Sterling, and his friend, Maverick Murphy, both young men, were walking on Central Avenue in Los Angeles. The area is associated with the Carver Park Compton Crips (CPC Crips). Several young males, including appellant, accosted the two men. Appellant pointed a gun at them. Appellant inquired about Sterling and Murphy’s possible gang membership by asking “What that Carver life like?” and whether they were “from” or associated with “We Sell Peanuts” or “We Sell Pies” -- derogatory names for the Westside Piru gang. Both Sterling and Murphy denied involvement with gangs. After taking cash and cigarettes from Murphy, appellant hit Sterling in the face. He then noticed that Sterling was wearing red shoelaces and using a red shoelace as a keychain. Red is a color associated with Blood and Westside Piru gangs. Appellant said to Sterling, “Oh, you’re a slob,” and then said to his companions, “[I] got this.” His companions hurried away. Sterling attempted to take the gun from appellant. After a brief struggle, appellant broke free and shot Sterling once in the chest. Sterling died shortly thereafter from a gunshot that pierced his heart, liver and kidney. A .25 caliber shell casing was found near his body.

The autopsy revealed the absence of stippling on the victim’s body, indicating the gun had been shot from a distance of more than 18 inches.

As appellant ran away, he shouted to a witness “I just shot Cuz in the chest.” He had earlier told the same witness that he had acquired “a little deuce-five,” a .25 caliber handgun.

The prosecution’s gang expert testified that although appellant had never admitted being a member of the CPC Crips, his use of the word “Cuz” and his reference to “Carver life” were indications of membership. Moreover, an attack on a man who may have been associated with a Blood or Westside Piru gang in CPC Crips territory could have been for the benefit of the latter gang without regard to whether the attacker was a member.

DISCUSSION

A. Trying Appellant As an Adult

Appellant’s trial as an adult was mandated by Welfare and Institutions Code section 602, subdivision (b)(1), which provides: “[A]ny person who is alleged, when he or she was 14 years of age or older, to have committed one of the following offenses shall be prosecuted under the general law in a court of criminal jurisdiction: [¶] (1) Murder, as described in Section 187 of the Penal Code if one of the circumstances enumerated in subdivision (a) of Section 190.2 of the Penal Code is alleged by the prosecutor, and the prosecutor alleges that the minor personally killed the victim.” Appellant contends he had a due process right under the United States Constitution to a hearing to determine his fitness to be tried as an adult.

Section 190.2 defines special circumstances murder, including “murder . . . committed while the defendant was engaged in . . . the commission of . . . [r]obbery.” (§ 190.2, subd. (a)(17)(A).)

Respondent contends appellant has forfeited the issue of the constitutionality of Welfare and Institutions Code section 602, subdivision (b) by failing to raise it in the trial court. Assuming, without checking, that this issue is subject to the forfeiture doctrine, we exercise our discretion to resolve the issue on the merits. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)

As appellant concedes, this issue was resolved by our Supreme Court in Manduley v. Superior Court (2002) 27 Cal.4th 537. In addressing the constitutionality of Welfare and Institutions Code section 707, subdivision (d), the court held that minimal constitutional standards of procedural fairness do not require a hearing to determine whether a minor is amenable to juvenile court disposition and that lawmakers may, by statute, eliminate a minor’s statutory right to a judicial fitness hearing. We are bound by this clear Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Welfare and Institutions Code section 707, subdivision (d), amended by the voters in the March 2000 election, confers on prosecutors the discretion to bring specified charges against certain minors in criminal court without having first obtained an adjudication by the juvenile court that the minor is unfit to proceed under juvenile court law.

B. Excessive Punishment

Appellant next contends his sentence violates the constitutional proscription against excessive punishment and that imposing a sentence of 50 years to life on a 15-year old offender constitutes cruel and unusual punishment.

Respondent contends appellant has forfeited this issue by failing to raise it in the trial court. (See, e.g., People v. Norman (2003) 109 Cal.App.4th 221, 229-230.) We exercise our discretion to resolve the issue under the relevant constitutional standards “in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim.” (Id. at p. 230; see People v. Williams, supra, 17 Cal.4th at p. 161, fn. 6.)

“Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity.” (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fns. omitted.) “‘Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty “out of all proportion to the offense” [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.’ [Citation.] ‘Defining crime and determining punishment are matters uniquely legislative in nature, resting within the Legislature’s sole discretion.’ [Citation.]’” (People v. Lewis (1993) 21 Cal.App.4th 243, 251, quoting In re Lynch (1972) 8 Cal.3d 410, 423-424.)

“‘A tripartite test has been established to determine whether a penalty offends the prohibition against cruel . . . [or] unusual punishment. First, courts examine the nature of the offense and the offender, “with particular regard to the degree of danger both present to society.” Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.] In undertaking this three-part analysis, we consider the “totality of the circumstances” surrounding the commission of the offense. [Citations.]’ [Citation.]” (People v. Chacon (1995) 37 Cal.App.4th 52, 63.) “In our examination of ‘“the nature of the offense” prong’ of the cruel and unusual punishment test, we ‘consider not only the offense in the abstract -- i.e., as defined by the Legislature -- but also “the facts of the crime in question.” [Citation.] This entails an examination of the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.’” (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390, quoting People v. Thompson (1994) 24 Cal.App.4th 299, 305.) “To assess the nature of the offender, we look at defendant’s ‘individual culpability in light of his age, prior criminality, personal characteristics, and state of mind.’” (People v. Rhodes, at p. 1390, quoting People v. Crooks (1997) 55 Cal.App.4th 797, 806.)

Appellant contends that his youth precludes a life or near-life sentence just as the age of the defendant in Roper v. Simmons (2005) 543 U.S. 551 (under 18 at the time of the offense) precluded imposition of capital punishment. In People v. Demirdjian (2006) 144 Cal.App.4th 10, this court concluded that a sentence of 50 years to life imposed on a 15-year old offender for murder was not cruel and unusual punishment. We distinguished Roper and the similar decision in Thompson v. Oklahoma (1988) 487 U.S. 815 (defendant under 16 at the time of the offense) on the ground that the death penalty is subject to “‘unique substantive and procedural restrictions’” that do not apply to lengthy terms of imprisonment. (People v. Demirdjian, supra, 144 Cal.App.4th at p. 14, quoting Thompson v. Oklahoma, supra, 487 U.S. at p. 856 [O’Conner, J., concurring].) We found “no categorical prohibition against imposition of a life term on juveniles who commit special circumstance murder.” (People v. Demirdjian, at p. 16.)

Appellant also stresses his lack of a criminal record. In People v. Guinn (1994) 28 Cal.App.4th 1130, the court upheld a life sentence imposed on a 17-year old who lacked a significant record, noting: “The fact that [the defendant] had chosen to embrace an antisocial, savage, gang lifestyle of complete heinousness, callousness and utter disregard for the law or for the rights of others at a relatively early age does not demonstrate the disproportionality of the sentence.” (Id. at p. 1146.) While agreeing that the punishment was “very severe,” the court was “unwilling to hold that such a legislative choice is necessarily too extreme, given the social reality of the many horrendous crimes, committed by increasingly vicious youthful offenders, which undoubtedly spurred the enactment [of the sentencing law under consideration].” (Id. at p. 1147.)

The probation report indicated that appellant had a juvenile history of assault with a deadly weapon and petty theft.

Appellant contends Demirdjian is distinguishable because it involved a double homicide and torture-murder. It is true that the crime involved in Demirdijian was “particularly horrendous” -- two young boys were beaten to death with rocks in a school playground. (People v. Demirdjian, supra, 144 Cal.App.4th at p. 15.) However, the murder of Sterling was no less deliberate, senseless and unprovoked. Appellant brazenly accosted two young men at gunpoint in broad daylight, robbed one and murdered the other because of the color of his shoelaces. We agree with the court in Guinn that the Legislature had just such behavior in mind when it enacted the provisions that led to the lengthy sentence imposed. (People v. Guinn, supra, 28 Cal.App.4th at p. 1147; see also People v. Rand (1995) 37 Cal.App.4th 999, 1001 [“A studied hatred and enmity, including a preplanned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation.”].)

Appellant contends that the crime was “an opportunistic robbery that spiraled out of control when one of the victims resisted and struggled with appellant.” The evidence indicated that (1) appellant made clear his intention to shoot Sterling before Sterling attempted to disarm him and (2) appellant shot Sterling after the struggle ceased and appellant regained control of the weapon.

Appellant also raises his lack of mental acuity to support his contention of disproportionality. The United States Supreme Court has held that capital punishment may not be imposed on severely retarded adults. (Atkins v. Virginia (2002) 536 U.S. 304, 321.) In reaching this conclusion, the court focused, as it did in Roper and Thompson, on the uniqueness of the death penalty and, in particular, on the number of states that had enacted legislation prohibiting execution of the mentally impaired; it did not suggest any lesser sanction, such as a lengthy term of imprisonment, would be prohibited. (Atkins v. Virginia, supra, 536 U.S. at pp. 318-321.) Moreover, our Supreme Court has made clear that in order for mental impairment to raise a question of excessive punishment, the defendant must exhibit “significantly subaverage intellectual functioning and deficiencies in adaptive behavior” in a number of skill areas, including “communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.” (In re Hawthorne (2005) 35 Cal.4th 40, 48.) The expert evidence presented by appellant did not establish any such deficiencies. We do not view appellant’s relatively minor impairment in intellectual functioning to mitigate the seriousness of the callous crime he committed. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 [law holds individual with unfortunate upbringing and learning disabilities responsible for his or her behavior]; People v. Young (2005) 34 Cal.4th 1149, 1231-1232 [death sentence upheld where defendant had IQ of 75].)

A defense expert testified during a pre-trial motion that appellant was dyslexic, had a verbal IQ score of 79 and a slightly higher non-verbal IQ score, and had the verbal reasoning of a 8- or 9-year old child.

C. CALCRIM No. 220

In accordance with CALCRIM No. 220, the jury was instructed: “In deciding whether or not the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial.” Appellant contends this language, when combined with language in CALCRIM No. 200 instructing the jury to “decide what happened, based only on the evidence that has been presented to you” and “follow the instructions that do apply to the facts as you find them,” prevented the jury from considering whether the absence of evidence gave rise to reasonable doubt. We disagree.

As given, CALCRIM No. 220 informed the jury: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People must prove the defendant guilty beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether or not the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”

As given, CALCRIM No. 200 provided in part: “You must decide what the facts are. It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial. . . . [¶] You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions. [¶] Pay careful attention to all of these instructions and consider them together. . . . [¶] . . . [¶] Some of these instructions may not apply, depending on your find[ings] about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”

Respondent contends appellant has forfeited any defect in CALCRIM No. 220 by failing to request ““‘appropriate clarifying or amplifying language.’”” (Quoting People v. Campos (2007) 156 Cal.App.4th 1228, 1236.) “Generally, “‘[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’”” (Ibid., quoting People v. Hart (1999) 20 Cal.4th 546, 622.) Nonetheless, we exercise our discretion to address the issue on the merits.

Under the United States Constitution, “[t]he government must prove beyond a reasonable doubt every element of a charged offense.” (Victor v. Nebraska (1994) 511 U.S. 1, 5; accord, People v. Osband (1996) 13 Cal.4th 622, 678-679.) “Reasonable doubt may arise from the evidence presented at trial or the ‘“‘lack of evidence.’”’” (People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508, quoting Johnson v. Louisiana (1972) 406 U.S. 356, 360.) “[S]o long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” (Victor v. Nebraska, supra, 511 U.S. at p. 5.) Because appellant contends CALCRIM No. 220 is ambiguous, “[t]he standard of review . . . is whether there is a reasonable likelihood that the jury applied the instruction in a way that denied fundamental fairness. [Citations.]” (People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157.) We do this by examining the instruction in the context of all the instructions, viewed as an entirety. (Victor v. Nebraska, supra, 511 U.S. at p. 5; People v. Chavez (1985) 39 Cal.3d 823, 830-831.)

In Victor, the court upheld the CALJIC No. 2.90 definition of reasonable doubt, in which the jury was told that reasonable doubt “‘is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.’” (Victor v. Nebraska, supra, 511 U.S. at p. 7.) Relying on Victor, the court in People v. Hernandez Rios, rejected essentially the same argument appellant makes here, that the “language in CALCRIM No. 220 . . . requiring the jury ‘to compare and consider all the evidence’ impermissibly shifts the burden of proof to the defense by allowing the jury to hold against the defense the absence of defense evidence.” (People v. Hernandez Rios, supra, 151 Cal.App.4th at p. 1156.) The court noted that the language of CALJIC No. 2.90 had been approved by the United States Supreme Court in Victor and concluded that there was no material difference between CALCRIM No. 220, which “uses verbs requiring the jury to ‘compare and consider all the evidence that was received throughout the entire trial,’” and CALJIC No. 2.90, which “uses nouns requiring ‘the entire comparison and consideration of all the evidence’ by the jury.” (People v. Hernandez Rios, supra, 151 Cal.App.4th at p. 1157, italics omitted.)

The entire instruction on presumption of innocence, reasonable doubt, and burden of proof given in Victor was: “‘A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.’” (Victor v. Nebraska, supra, 511 U.S. at p. 7, italics omitted.)

Other appellate courts have rejected an argument essentially identical to the one appellant here makes. In Westbrooks, the defendant contended CALCRIM No. 220 “improperly ‘limited the jury’s determination of reasonable doubt to the evidence received at trial and precluded it from considering the lack of physical evidence tying [him] to the offense,’” noting that “CALCRIM No. 222 generally defines evidence as the testimony and exhibits offered at trial.” (People v. Westbrooks, supra, 151 Cal.App.4th at pp. 1505-1506, 1509.) Finding the defendant’s contention unpersuasive, the Westbrooks court concluded: “The sentence to which [the defendant] objects, like the remainder of CALCRIM No. 220, merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving [the defendant’s] guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt.” (People v. Westbrooks, supra, 151 Cal.App.4that p. 1509.)

In People v. Guerrero (2007) 155 Cal.App.4th 1264, the defendant contended the instruction “prevented the jury from considering a lack of evidence in deciding whether reasonable doubt existed.” (Id. at p. 1267.) The court concluded that, to the contrary, “CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. . . . The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendant’s guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant. [¶] Due process requires nothing more.” (People v. Guerrero, at pp. 1268-1269.)

Like the courts in Hernandez Rios, Westbrooks, and Guerrero, we perceive no instructional error. In giving CALCRIM No. 220, the trial court told the jury: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People must prove the defendant guilty beyond a reasonable doubt.” The court also instructed the jury pursuant to CALCRIM No. 103 that “[a] defendant in a criminal case is presumed to be innocent” and “[t]his presumption requires that the People prove each element of a crime and special allegations beyond a reasonable doubt.” The instructions thus correctly informed the jury that the prosecutor was obliged to prove each element of the crimes and each allegation beyond a reasonable doubt, and giving CALCRIM No. 220 did not violate appellant’s due process right.

We further note that the court instructed the jury, pursuant to CALCRIM No. 355, that a defendant “may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.”

D. Enhancements Under Section 12022.53, Subdivisions (b) and (c)

In his opening brief, appellant contended the trial court erred in staying, rather than striking, the enhancements under section 12022.53, subdivisions (b) and (c). Appellant now concedes that under the Supreme Court’s recent decision in People v. Gonzalez (2008) 43 Cal.4th 1118, such enhancements are properly stayed.

E. Enhancement Under Section 186.22, Subdivision (b)(1)(A)

Section 186.22, subdivision (b)(1) provides that “[e]xcept as provided in paragraphs (4) and (5),” a person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by an additional term of between two and ten years. Paragraph (b)(4) requires imposition of an indeterminate life term under certain circumstances not applicable here. Paragraph (b)(5) requires the court to impose a life term with a minimum of 15 years before the defendant is eligible for parole where he or she commits, for the benefit of a gang, a felony punishable by life imprisonment. In People v. Lopez (2005) 34 Cal.4th 1002, the Supreme Court explained that the two- to ten-year enhancements of subdivision (b)(1) cannot be applied when the violent felony committed by the defendant is “a violent felony punishable by imprisonment in the state prison for life” and, therefore, falls under the provisions of subdivision (b)(5). Instead, only the enhancement in subdivision (b)(5) may be imposed. (People v. Lopez, supra, 34 Cal.4th at pp. 1004, 1006-1011.)

Both parties agree that under Lopez, only the paragraph (b)(5) enhancement properly applies here, but dispute what that means. Appellant contends the sentence under section 186.22, subdivision (b), which is shown simply as “stayed” on the abstract of judgment, should be stricken. Respondent maintains the abstract should be corrected to expressly reflect a 15-year minimum parole eligibility under section 186.22, subdivision (b)(5).

To support his contention that the section 186.22, subdivision (b) enhancement should be stricken, appellant notes that in Lopez, the Supreme Court ordered the superior court to “delete” the sentence imposed under section 186.22, subdivision (b). There, however, the abstract of judgment reflected “a 10-year gang enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(C).” (People v. Lopez, supra, 34 Cal.4th at p. 1011.) The abstract here contains no reference to an additional 10-year term or to subdivision (b)(1)(C). It simply states that the sentence under section “186.22 (b)” is stayed without elaboration as to what sentence the court would have imposed and without specific reference to either paragraph (b)(1) or (b)(5).

Respondent relies on language in Lopez in which the court acknowledged that the section 186.22, subdivision (b)(5) enhancement “will have no practical effect for first degree murderers, who now have a minimum parole eligibility term of 25 years [citation], or for second degree murderers, who now have a minimum parole eligibility term of 15 years [citation].” (People v. Lopez, supra, 34 Cal.4th at p. 1009.) However, the court went on to state: “The true finding under section 186.22(b)(5), which provides for a lower minimum term, ‘is a factor that may be considered by the Board of Prison Terms when determining a defendant’s release date, even if it does not extend the minimum parole date per se.’” (People v. Lopez, supra, 34 Cal.4th at p. 1009, quoting People v. Johnson (2003) 109 Cal.App.4th 1230, 1238.) Respondent contends that under this language, the abstract of judgment should expressly refer to the 15-year minimum parole eligibility set forth in section 186.22, subdivision (b)(5) and that the proper disposition is to order the superior court to modify the abstract of judgment to reflect a 15-year minimum parole eligibility.

We agree that the abstract of judgment is incorrect because it does not specify that the applicable subdivision is section 186.22, subdivision (b)(5). However, there is no need for the abstract to expressly state that subdivision (b)(5) requires a 15-year minimum parole eligibility. The only modification needed, therefore, is to specify that the applicable subdivision is section “186.22 (b)(5)” rather than “186.22 (b),” as the abstract currently states.

DISPOSITION

The judgment is affirmed. The matter is remanded to correct an error in the abstract of judgment. Upon remand, the trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting that the subdivision of section 186.22 applicable here is section “186.22 (b)(5).”

We concur: EPSTEIN, P. J., SUZUKAWA, J.


Summaries of

People v. Browner

California Court of Appeals, Second District, Fourth Division
Sep 23, 2008
No. B198836 (Cal. Ct. App. Sep. 23, 2008)
Case details for

People v. Browner

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEMETERIUS BROWNER, Defendant and…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Sep 23, 2008

Citations

No. B198836 (Cal. Ct. App. Sep. 23, 2008)