Opinion
E032702.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. JESUS CANTU, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Randall D. Einhorn, Supervising Deputy Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.
Defendant appeals from convictions for three counts of first degree murder with certain firearm enhancements and a special circumstance found true.
On appeal he contends that (1) the Penal Code section 12022.53, subdivisions (b) and (c)[] firearm enhancements were stayed under the wrong code section, (2) the firearm enhancements under section 12022.5, subdivision (a)(1) should have been stricken rather than stayed, and (3) there was an error in the calculation of custody credits. As we shall explain, we agree with each of these contentions.
All further statutory references are to this code unless otherwise indicated.
In their brief, the People contend that the case needs to be remanded for resentencing due to an unauthorized sentence. The jury found the special circumstances of multiple murder were true, but the court did not impose sentences of life without the possibility of parole. We also agree with this contention.
Accordingly, we will affirm the convictions and true findings on the special circumstance allegation as to all three counts and all of the firearm enhancements and remand the case for resentencing.
PROCEDURAL HISTORY
Defendant was charged in the third amended information with three counts of murder. (§ 187.) As to each count, it was further alleged that the special circumstance of multiple murder applied (§ 190.2, subd.(a)(3)); that the defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subd.(d)); that the defendant personally and intentionally discharged a firearm during the commission of the murders (§ 12022.53, subd.(c)); that the defendant personally used a firearm in the commission of the murders (& sect; 12022.53, subd. (b)); and that defendant personally used a firearm in the commission of a felony (§ 12022.5, subd.(a)(1)).
The case proceeded to trial as a death penalty case. The jury found the defendant guilty of all three counts of murder in the first degree. The jury also found true all of the firearm enhancements and the special circumstance enhancements. On August 23, 2002, the jury was unable to agree upon a penalty, and that part of the case was mistried.
On September 19, 2002, the prosecutor told the court that the District Attorney would not be seeking the death penalty. The defendant requested immediate sentencing, but the court referred the case to the probation department for a sentencing report.
The court pronounced judgment on October 17, 2002. It imposed six consecutive 25-years-to-life sentences for a total commitment of 150 years to life. The court imposed on each count a term of 25 years to life for first degree murder and a 25-years-to-life term, to run consecutively, for the personal and intentional firing of a firearm causing death enhancement pursuant to section 12022.53, subdivision (d). All of the other firearm enhancements were stayed pursuant to section 654 as recommended in the probation report.
The court did not make any disposition of the special circumstance finding of multiple murders which carries a sentence of life without the possibility of parole when the death penalty has been waived by the District Attorney. (§ 190.2, subd. (a)(3).) The prosecutor who tried the case acquiesced in the sentence and never mention the special circumstance finding.[] The probation report recommended a sentence of 150 years to life to be followed by life terms (probation report, pp. 5 and 9),[] but that language was struck and changed by interlineation, apparently handwritten by the sentencing judge, showing only "six (6) consecutive 25 years to life terms".
We find it curious that the prosecutor who tried the case did not speak up regarding the special circumstance allegation which requires a sentence of life without the possibility of parole. At the beginning of the sentencing hearing, there is a reference in the court reporters transcript, at volume 9, pages 2306-2307, to an unreported chambers discussion. Defendants counsel indicated that she had no objection to defendant being ordered to make restitution to the victim, but then she stated, "And also, pursuant to our chambers conference, that the modification to the report being six consecutive 25 years to life." (Sic.) It raises the question of whether the prosecutor acceded to the imposition of an unauthorized sentence or failed to speak up due to mistake.
Page 5 of the report recommends the imposition of 150 years to life to be followed by five life terms without the possibility of parole. We assume that the writer erred and meant three life terms without the possibility of parole. Page 9 recommends life terms to follow the 150 years to life but does not include the phrase "without the possibility of parole."
The abstract of judgment shows 6 consecutive 25 to life sentences, but does not even mention any disposition of the special enhancement found true under section 190.2, subdivision (a)(3). (Clerks transcript, p. 529.) The same is true of the clerks minute order. (Clerks transcript, pp. 526-528.)
FACTS
The facts of the crimes are irrelevant to the resolution of the issues presented on appeal. It suffices to say that defendant, April Watson and others went to a residence for the claimed purpose of retrieving personal property belonging to Watson that she left behind when she was evicted by the occupants of the residence. She was prevented from retrieving them by one of the residents. Watson became angry and made threats.
She and her companions left and went to Watsons apartment where defendant armed himself with a revolver.
Several hours later they returned to the residence and made forced entry into it. The three victims were placed together with defendant. Defendant killed each of the victims with a single bullet to the back of the head execution style.
DISCUSSION
The Firearm Enhancements Pursuant to Section 12022.53, Subdivisions (b) and (c).
The defendant contends that the court erred in staying the imposition of sentence on these allegations pursuant to section 654. He contends that they should be stayed but under section 12022.53, subdivision (f). The probation report recommended that they be stayed pursuant to section 654, and the minute order reflects that they were stayed pursuant to section 654. The court reporters transcript shows the court ordered them stayed, but the court did not state what code section it was using in staying them.
The People correctly concede that where an enhancement has been found under section 12022.53, subdivision (d), as in this case, any remaining enhancements found true under section 12022.53 must be stayed under section 12022.53, subdivision (f). Accordingly, on remand the court shall stay the section 12022.53, subdivision (b) and (c) enhancements under section 12022.53, subdivision (f) rather than under section 654.
The Section 12022.5, Subdivision (a)(1) Enhancements.
The court also stayed the 10-year enhancements under section 12022.5, subdivision (a)(1). Defendant contends that rather than being stayed, the allegations should be stricken.
Section 12022.53, subdivision (f), states in relevant part: "An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section." (emphasis added.) Defendant contends that because the section 12022.53, subdivision (d) enhancement of 25 years to life was imposed, the court could not impose and then stay the enhancement under section 12022.5 citing People v. Jenkins (1980) 28 Cal.3d 494, 505; People v. Tanner (1979) 24 Cal.3d 514, 521; and People v. Bracamonte (2003) 106 Cal.App.4th 704, 713.
The People counter that the enhancement should not be stricken. Rather it should be stayed, not under section 654 as the court did, but under section 12022.53, subdivision (f).
The Peoples argument is based on section 12022.53, subdivision (h): "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."[]
The current version of section 12022.5, subdivision (c) also contains the same prohibition phrased in identical language.
Section 12022.53, subdivisions (f) and (h) appear to conflict with each other and apparently also with the current version of section 12022.5, subdivision (c) as well. People v. Bracamonte, supra, 106 Cal.App.4th at pages 712-713, is directly on point and resolves or harmonizes the conflict.
Citing section 12022.53, subdivision (f), the Bracamonte court concluded that where, as in the present case, an enhancement under section 12022.53 applies, the trial court must strike the firearm use finding under section 12022.5 because it cannot be imposed. Because only one additional term of imprisonment may be imposed per person for each crime under section 12022.53, the court concluded that the language of the statute requires the court to (1) impose the enhancement with the longest term of imprisonment, in the present case the section 12022.53, subdivision (d) 25-years-to-life term; (2) stay any other enhancements under section 12022.53, subdivisions (b) and (c); and (3) strike the enhancement under section 12022.5.
The People recognize that Bracamonte is directly on point but contend that the portion of the opinion requiring the striking of a section 12022.5 is wrongly decided. We have considered the Peoples argument. Reasonable minds might differ concerning how to resolve the conflicting language of the statute, but we are not persuaded to depart from Bracamonte. The people point to the language of section 12022.53, subdivision (f) that "[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime." They contend that if a term of imprisonment is stayed, there is no additional term of imprisonment. However, in our view, an enhancement imposed, but stayed, is still imposed within the meaning of the statute even if the stay does not presently add an additional term of imprisonment. If it cannot be imposed, then it should be stricken.
The court should have stricken the section 12022.5 enhancement.
The Defendant Is Entitled to 653 Days Credit.
The court gave custody credits of 652 days. Defendant contends, and the People correctly concede, that he is entitled to one additional day of credit. Defendants counsel informed the trial court of the error, and it has already corrected it. The issue is then moot.
The Section 190.2, Subdivision (a)(3) Multiple Murder Enhancement.
Section 190.2, subdivision (a)(3) requires a sentence of life without the possibility of parole if the penalty of death is not imposed. (People v. Garnica (1994) 29 Cal.App.4th 1558, 1564.) The court imposed an unauthorized sentence which is correctable at any time even if it results in a greater penalty following appeal. (People v. Hanson (2000) 23 Cal.4th 355, 358, fn. 3.)
In his reply brief, defendant correctly concedes that the court imposed an unauthorized sentence, but contends that only one multiple murder enhancement should have been submitted to the jury. Here it was alleged as to all three counts that the multiple murder enhancement applied. He contends that that on remand two of the multiple murder enhancements should be stricken. He is wrong for the reasons that this court stated in Garnica at pages 1562-1564.
DISPOSITION
The convictions and all true findings on enhancements are affirmed. The case is remanded to the trial court for resentencing consistent with the views expressed in this opinion.[]
Defendant in his reply brief notes that the court imposed a restitution fine pursuant to section 1202.45, and that on remand, if a sentence of life imprisonment without the possibility of parole is imposed, that fine cannot be ordered. That is correct. That fine may only be imposed where, at the time of sentencing, a period of parole is possible. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186.)
We concur: Ramirez, P.J. and Richli, J.