Opinion
B228535
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. JAMES DURAN, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PA058489)
APPEAL from a judgment of the Superior Court of Los Angeles County. David W. Stuart, Judge. Affirmed as modified.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
James Duran was convicted of attempted murder (Pen. Code, § 667/187), shooting at an occupied vehicle (§ 246), and three counts of assault with a deadly weapon (§ 245, subd. (a)(1)). Both he and the Attorney General raise issues on appeal concerning his sentence. We modify the judgment but otherwise affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
After a verbal exchange inside a convenience store, Duran fired a handgun at a vehicle occupied by three people. Duran was convicted of attempted murder (count 1); shooting at an occupied vehicle (count 4); and three counts of assault with a deadly weapon (counts 5-7). The victim in count 5 was the same as the victim in count 1. For each of the counts on which Duran was convicted, the jury found true the enhancement allegation that a principal was armed with a handgun during the commission of the offense pursuant to section 12022, subdivision (a)(1).
Duran admitted two prior serious felony convictions (Case Nos. BA098075 and CH011998). The court struck one alleged prior conviction, in Case No. PA020533.
At the sentencing hearing, held several months after Duran admitted his prior convictions, the court selected count 1 as the principal term and imposed a sentence of life imprisonment with a minimum term of 25 years before Duran would be eligible for parole, plus: a one one-year sentence enhancement pursuant to section 12022, subdivision (a)(1); two five-year sentence enhancements under section 667, subdivision (a)(1), due to prior serious felony convictions in Case Nos. BA098075 and J767968; and two one-year prior prison term enhancements under section 667.5, subdivision (b), based on Case Nos. CH011998 and PA020533. The court imposed and stayed consecutive sentences on counts 4 and 5 pursuant to section 654. For counts 6 and 7, the trial court imposed consecutive life sentences with 25-year minimum terms prior to parole eligibility, plus one additional year on each count because a principal was armed with a firearm (§ 12022, subd. (a)(1)). The court orally imposed restitution fines and parole revocation fees in the amount of $200 per count, for a total of $1,000; the abstract of judgment reflects only a $200 charge of each type. The court imposed a court security fee in the amount of $90. Duran appeals.
DISCUSSION
I. Sentence: Count 1
On count 1, the principal count, the trial court imposed a sentence of life imprisonment with a minimum term of 25 years before Duran would be eligible for parole. The court also imposed a one-year sentence enhancement pursuant to section 12022, subdivision (a)(1); two five-year sentence enhancements pursuant to section 667, subdivision (a)(1); and two one-year enhancements under section 667.5, subdivision (b).
Duran had admitted two prior serious felony convictions, in Case Nos. BA098075 and CH011998. The trial court, therefore, was entitled to impose two five-year sentence enhancements pursuant to section 667, subdivision (a)(1); one for each of these alleged and admitted prior serious felony convictions. The trial court did so, but it stated at sentencing that it was imposing the enhancements for Case Nos. BA098075 and J767968. The first presents no difficulty: the prior conviction in Case No. BA098075 was alleged in the third amended information, was admitted by Duran, and was found true by the trial court, and it appropriately served as the basis for a five-year sentence enhancement under section 667, subdivision (a)(1). The second prior conviction, in Case No. J767968, however, was not alleged in the operative information, was not admitted by Duran, and was not found true by the trial court. (It appears that at sentencing the court referred to a prior information, which had alleged somewhat different priors.) The court should have imposed the second enhancement based not on Case No. J767968 but on Duran's previously-admitted conviction in Case No. CH011998, and we modify the judgment to conform to what was pleaded, admitted, and intended by the court. (People v. Haskin (1992) 4 Cal.App.4th 1434, 1441.)
We next consider the effect of this modification on the one-year enhancements imposed under section 667.5, subdivision (b), based on Duran's priors in Case Nos. CH011998 and PA020533. The section 667.5, subdivision (b) enhancement based on Case No. PA020533 must be stricken because the trial court struck that prior conviction allegation from the operative information in the interest of justice under section 1385. As the allegation was stricken, the court could not properly impose an enhancement based upon it. (In re Varnell (2003) 30 Cal.4th 1132, 1138 [dismissal of a prior conviction allegation under section 1385 "ameliorates the effect" of the dismissed allegation].)
The section 667.5, subdivision (b) enhancement based on Case No. CH011998 is also problematic because under the modified judgment that prior offense already is the basis for a five-year sentence enhancement under section 667, subdivision (a)(1). The California Supreme Court has ruled that a defendant's sentence cannot be enhanced under both sections 667, subdivision (a)(1) and 667.5, subdivision (b) based on the same prior conviction and prison term, and that the defendant may be subjected only to the greater enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1150-1153.) Although the enhancement was ordered stricken by the Supreme Court in Jones (id. at p. 1153), pursuant to California Rules of Court, Rule 4.447 it appears that the appropriate practice is to impose and then stay execution of the enhancement. (People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9.)
II. Sentence: Count 4
Duran argues that the trial court could not properly impose a section 12022, subdivision (a)(1) enhancement on count 4 (shooting at an occupied vehicle) because arming is an element of the offense of shooting at an occupied vehicle. The Attorney General agrees that the section 12022, subdivision (a)(1) enhancement could not properly be served, but argues that it was proper for the enhancement to be imposed and stayed.
Both Duran and the Attorney General rely on the decision in People v. Sinclair (2008) 166 Cal.App.4th 848. In Sinclair, a section 12022, subdivision (a)(1) enhancement was stayed by the Court of Appeal in the context of a count that did not necessarily involve arming—a robbery count in which that enhancement was improper for other reasons. (Id. at p. 854, 857.) With respect to the counts in which the section 12022, subdivision (a)(1) enhancement was improperly imposed because arming was an element of the underlying substantive offense, however, the Sinclair court instructed that the enhancement be stricken. (Id. at pp. 856-857.) Striking the enhancement is appropriate here as well, for by its own terms section 12022, subdivision (a)(1) prohibits the imposition of the enhancement when "the arming is an element of the underlying offense. As the enhancement could never properly be imposed on count 4 because arming is an element of shooting at an occupied vehicle, the enhancement must be stricken. (Id. at pp. 856-857.)
III. Restitution and Parole Revocation Fines
The Attorney General notes a disparity between the court's oral imposition of restitution and parole revocation fines at the sentencing hearing and the fines listed on the abstract of judgment. At sentencing, the court ordered a restitution fine of $200 on each of the five counts on which Duran was convicted, and a corresponding $200 parole revocation fine on each count, but the abstract of judgment provides for a fine of $200 of each type.
The Attorney General argues that the fine should be $1000 because the record of the oral proceeding controls over the later-prepared abstract of judgment. Duran responds that restitution and parole revocation fines may not be imposed on counts 4 and 5 because the sentences on those offenses were stayed. Restitution fines may not be imposed based on convictions stayed pursuant to section 654. (People v. Le (2006) 136 Cal.App.4th 925, 934 [section 654 is violated when stayed convictions are considered in calculating restitution fines].) The judgment, therefore, is modified to strike the restitution fines and fees orally imposed by the trial court on the stayed counts. We order the abstract of judgment corrected to conform to the trial court's oral pronouncement of judgment with respect to the non-stayed counts, reflecting a $600 fine pursuant to section 1202.4, subdivision (b) and a corresponding $600 fine pursuant to section 1202.45.
IV. Court Security Fees
The trial court imposed a court security fee pursuant to section 1465.8 in the amount of $90. Section 1465.8, subdivision (a)(1) provides that a court security fee "shall be imposed on every conviction for a criminal offense," and this has been understood as attaching the fine to each criminal conviction in a proceeding, even if stayed. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Duran was convicted of five offenses; we therefore order the judgment modified to impose a court security fee in the aggregate amount of $150. The abstract of judgment shall be amended to reflect the judgment as so modified. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328.)
DISPOSITION
The judgment is modified to reflect that: the five-year enhancements under Penal Code section 667, subdivision (a)(1) are based on the prior serious felony convictions in Case Nos. BA098075 and CH011998; the one-year enhancement under Penal Code section 667.5, subdivision (b) based on the prior conviction in Case No. PA020533 is stricken; the one-year enhancement under Penal Code section 667.5, subdivision (b) based on the prior conviction in Case No. CH011998 is stayed; the enhancement on count 4 pursuant to Penal Code section 12022, subdivision (a)(1) is stricken; the restitution and parole revocation fines imposed pursuant to Penal Code sections 1202.4, subdivision (b) and 1202.45 on stayed counts 4 and 5 are stricken, yielding a restitution fee of $600 and a parole revocation fine of $600; and a court security fee in the aggregate amount of $150 is imposed under Penal Code section 1465.8. The clerk of the superior court is ordered to prepare an amended abstract of judgment as set forth in this opinion and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
ZELON, J. We concur:
WOODS, Acting P. J.
JACKSON, J.