Opinion
NOT TO BE PUBLISHED
APPEAL on remand from the Supreme Court, Los Angeles County, Super. Ct. No. BA267701.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Bill Lockyer, Attorney Generals, Dane R. Gillette, and Robert R. Anderson, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Michael J. Wise, Lawrence M. Daniels, Margaret E. Maxwell and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Robert Escamilla appeals from the judgment entered after a jury convicted him of attempted voluntary manslaughter, a lesser included offense of attempted premeditated murder, and found true the special allegation he had personally used a firearm to commit the offense. Escamilla contends the trial court erred by failing to instruct the jury on elements of assault with a deadly weapon as either a lesser included or lesser related offense of attempted murder. He also argues the trial court’s imposition of upper term sentences for attempted voluntary manslaughter and the firearm-use enhancement based on its own factual findings concerning aggravating circumstances violated his right to a jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. We affirm.
Our original opinion in this case was filed on September 18, 2006. On April 23 2007 the United States Supreme Court, after granting Escamilla’s motion for leave to proceed in forma pauperis and his petition for writ of certiorari, vacated the judgment and remanded the matter to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. We requested and received supplemental briefing from the parties on the effect, if any, of Cunningham on Escamilla’s sentence. On July 19, 2007 we vacated submission of the case to allow the parties to file additional supplemental letter briefs addressing the California Supreme Court’s decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Escamilla was charged by information with one count of attempted willful, deliberate and premeditated murder (Pen. Code, § 664, 187, subd. (a)) and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). Firearm use enhancements under section 12022.53, subdivisions (b), (c), (d) and (e) and a criminal street gang enhancement under section 186.22, subdivision (b)(1)(A), were alleged as to the attempted murder count. The information further alleged as to both counts that Escamilla had suffered a prior serious or violent felony conviction for robbery that constituted a “strike” under the “Three Strikes” law (§§ 667, subds. (b)-(d); 1170.12, subds. (a)-(d)).
Statutory references are to the Penal Code unless otherwise indicated.
2. The Jury Trial
According to the People’s evidence, in the early hours of June 1, 2004 Leora Cervantes was in a park with her cats. Escamilla entered the park and unexpectedly kicked one of the cats into the air. Enraged, Cervantes, who did not know Escamilla, hit him in the face with her fist, knocking Escamilla to the ground. Escamilla rose to his feet, pointed a 45-caliber pistol at Cervantes’s head and said, “What’s up now bitch?” Cervantes raised her hands, yelled at Escamilla for kicking her cat and said something about “taking care of business.” During the exchange Escamilla occasionally cradled his injured face with his gun hand but otherwise kept the weapon pointed at Cervantes. She turned away to leave, commenting Escamilla could shoot her in the back “if [his] mother raised a coward.” Escamilla shot Cervantes through the upper back, and she fell to the ground. Escamilla laughed and left the park. At the time of trial Cervantes’s left side, including her arm, remained partially paralyzed; and she had a scar on her chest from the exit wound.
The parties stipulated that Escamilla had a prior felony conviction for the purpose of the felon-in-possession charge.
Escamilla neither testified nor presented other evidence on his behalf.
As Escamilla had requested, the trial court instructed the jury on attempted voluntary manslaughter as a lesser included offense of attempted premeditated murder and on the elements of both offenses (CALJIC Nos. 8.41, 8.42, 8.43, 8.44, 8.50, 8.66, 8.67, 8.72, 17.10). The trial court refused Escamilla’s request to instruct on assault with a deadly weapon as a lesser included offense of attempted murder and, based on the People’s objection, also declined to instruct on assault with a deadly weapon as a lesser related offense.
The defense theory of the case, presented through counsel’s argument to the jury, was Escamilla did not shoot at Cervantes with an intent to kill her or with malice. According to the defense, the evidence showed Escamilla fired a single shot either by accident or with the intent only to frighten Cervantes and not to kill her. Accordingly, the jury should consider only whether he committed attempted voluntary manslaughter by sudden quarrel/heat of passion or was not guilty of either attempted murder or attempted voluntary manslaughter. Defense counsel told the jury Escamilla had committed assault with a deadly weapon by pointing the gun at Cervantes, even if its discharge was accidental, and added, “for some reason, I have no idea why, but it wasn’t charged in this case. It should have been charged, but it wasn’t.”
3. Jury Verdict and Sentencing
The jury found Escamilla not guilty of attempted murder but guilty of both the lesser-included offense of attempted voluntary manslaughter and being a felon in possession of a firearm. The jury also found true the firearm use allegation under section 12022.5, subdivision (a)(1) and returned a true finding with respect to the criminal street gang enhancement.
The firearm use enhancements specially alleged under section 12022.53, subdivisions (b), (c), (d) and (e), are not applicable to attempted voluntary manslaughter. (Compare § 12022.53, subd. (a) [listing murder but not manslaughter as one of the felonies to which that section’s provisions apply] with § 12022.5, subd. (a) [firearm use enhancement applies to commission of any felony or attempted felony].)
In a bifurcated proceeding Escamilla admitted he previously had been convicted of robbery, a serious or violent felony.
At sentencing the trial court considered a pretrial probation report and the sentencing memoranda filed by counsel. The probation report disclosed a juvenile delinquency history from 1991 to 1993, consisting of adjudications for battery (§§ 242, 243), grand theft person (§ 487), unlawful driving or taking of a vehicle and a probation violation (Welf. & Inst. Code, § 777). As an adult Escamilla was convicted in 1996 of burglary and involuntary manslaughter (§§ 459, 192, subd. (b)) in separate cases and was sentenced to concurrent state prison terms of two and three years respectively. In 1999 Escamilla was convicted of inflicting corporal injury on a spouse (§ 273.5, subd. (a)) and served eight days in the county jail. In 2002 he was convicted of attempted armed robbery (§§ 211, 664, 12022, subd. (a)(1)) and received a three-year state prison sentence. Escamilla was on parole at the time of the current offenses and had numerous probation and parole violations as an adult.
In recommending an upper term sentence, the probation report identified five aggravating factors: (1) The crime involved great violence and great bodily harm showing a high degree of cruelty, viciousness or callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) Escamilla’s prior juvenile adjudications and adult convictions are numerous and of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); (3) Escamilla has served prior prison terms (Cal. Rules of Court, rule 4.421(b)(3)); (4) he was on parole when the current crimes were committed (Cal. Rules of Court, rule 4.421(b)(4)); and (5) Escamilla’s prior performance on probation and parole was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)). The report stated there were no mitigating factors.
The People’s sentencing memorandum recommended imposition of the maximum 21-year sentence or double the upper five and one-half year term for attempted voluntary manslaughter plus the upper 10-year term for the firearm use enhancement. Escamilla’s sentencing memorandum recommended imposition of no higher than the middle terms. The defense objected to imposition of the upper terms in the absence of appropriate jury findings, citing Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely).
Rejecting Escamilla’s argument there were no aggravating factors, the trial court identified the five aggravating factors listed in the probation report, as well as the fact Cervantes was a particularly vulnerable victim (Cal. Rules of Court, rule 4.421(a)(3)). The court acknowledged it was potentially prohibited by Blakely from relying upon aggravating factors not found by a jury to impose upper terms for attempted voluntary manslaughter and the firearm use enhancement. However, the court explained it was imposing the upper terms based on its evaluation of factors relating to Escamilla’s recidivism as outweighing any and all mitigating factors in this case.
The sentencing hearing occurred on May 24, 2005, four weeks before the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which held Blakely does not invalidate California’s determinate sentencing law.
The trial court sentenced Escamilla to an aggregate state prison term of 21 years 8 months: 11 years (the upper term of five and one-half years doubled under the Three Strikes law) for attempted voluntary manslaughter, plus 10 years (the upper term) for the firearm use enhancement, and a consecutive term of eight months (one-third the middle term) for being a felon in possession of a firearm.
DISCUSSION
1. The Trial Court Did Not Err in Failing to Instruct on Assault with a Deadly Weapon
Escamilla contends under either the “elements” test or the “accusatory pleading” test assault with a deadly weapon is a lesser included offense of attempted murder when charged with a firearm use enhancement. Accordingly, he urges it was prejudicial error for the trial court to refuse to instruct the jury on assault with a deadly weapon in light of the evidence that suggests he did not intend to kill Cervantes. Alternatively, he argues the failure to instruct on assault with a deadly weapon as a lesser related offense impermissibly restricted his right to present a defense.
Two tests have traditionally been applied in determining whether an uncharged offense is necessarily included within a charged offense -- the statutory or legal “elements” test and the “accusatory pleading” test. “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228; accord, People v. Licas (2007) 41 Cal.4th 362, 366; People v. Birks (1998) 19 Cal.4th 108, 117.)
a. Aggravated assault instructions were not required as instructions on a lesser included offense
Assault with a firearm is not a lesser included offense of attempted murder, the crime with which Escamilla was charged. (People v. Parks (2004) 118 Cal.App.4th 1, 6.) Under the statutory elements test assault with a firearm is not included within attempted murder. (People v. Sanchez (2001) 24 Cal.4th 983, 988 [“Because in the abstract a murder can be committed without a deadly weapon, assault with a deadly weapon is not an offense necessarily included within the crime of murder”]; People v. Dixie (1979) 98 Cal.App.3d 852, 856 [“‘It is apparent that murder can be committed without committing an assault with a deadly weapon or by means of force likely to produce great bodily injury. For example, one could commit a murder by withholding food and drink from an invalid. . . .’”].) The additional special allegation of a firearm-use enhancement does not mandate a different result because enhancements are not legal elements of the offense to which they attach. (See People v. Sloan (Aug. 16, 2007, S132605) __ Cal.4th __, __ [2007 Cal. Lexis 8704] [enhancement allegations may not be considered for purpose of rule prohibiting multiple convictions based on necessarily included offenses]; People v. Izaguirre (Aug. 16, 2007, S132980) __ Cal.4th __, __ [2007 Cal. Lexis 8705].)
The same result obtains under the accusatory pleading test because a firearm-use enhancement may not be considered when determining whether an offense is necessarily included under this test. (People v. Wolcott (1983) 34 Cal.3d 92, 96 (Wolcott) [“‘use’ enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses”]; People v. Parks, supra, 118 Cal.App.4th at p. 6; see People v. Sloan, supra, __ Cal.4th at p. ___ [reaffirming “the long-standing rule that enhancements may not be considered as part of an accusatory pleading for purposes of identifying lesser offenses, ” citing Wolcott].)
Recognizing that Wolcott, supra, 34 Cal.3d 92, is directly contrary to his argument and would normally control the outcome of his case, Escamilla argues Wolcott is no longer binding because its holding was based on a distinction between the elements of a crime and sentencing enhancements that was narrowed or eliminated in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and People v. Seel (2004) 34 Cal.4th 535, which interpreted and applied Apprendi in the specific context of the federal double jeopardy clause’s prohibition against a second prosecution for the same offense after an acquittal. (See Seel, at p. 539, fn. 2 [“‘Apprendi treated the crime together with its sentence enhancement as the “functional equivalent” of a single “greater” crime’”].) A closely related argument was recently rejected by the Supreme Court in People v. Izaguirre, supra, __ Cal.4th __, which found no merit to the contention Apprendi and Seel require conduct enhancements be treated the same as legal elements of the crime for the purpose of defining necessarily included offenses under the multiple conviction rule. (Izaguirre, at p. ___.) As was true in Izaguirre, we do not believe Seel’s interpretation of the holding of Apprendi as it relates to an aspect of federal double jeopardy protection is implicated in this case. Neither the holding nor the reasoning of Seel conflicts with the conclusion in Wolcott that a firearm-use enhancement is not part of the offense itself rather than additional punishment. (Wolcott, supra, 34 Cal.3d at pp. 100-101.)
In Apprendi, supra, 530 U.S. 466, the United States Supreme Court held any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt, whether those facts make up the elements of a crime or the elements of a sentence enhancement if there is exposure to increased punishment. (Id. at pp. 474-476, 482-484, 494-495.)
Escamilla’s reliance on the Ireland merger doctrine is equally misplaced. That doctrine, which Escamilla claims also undermines Wolcott, has not been applied outside the context of felony-murder cases involving assault. (See, e.g., People v. Randle (2005) 35 Cal.4th 987, 1004-1005; People v. Hansen (1994) 9 Cal.4th 300, 311; People v. Sanders (1990) 51 Cal.3d 471, 509, 517; People v. Garrison (1989) 47 Cal.3d 746, 778.) Indeed, “no authority [has] extend[ed] the merger doctrine to enhancements.” (People v. Sanders (2003) 111 Cal.App.4th 1371, 1374-1375 [finding the “bootstrapping” concerns addressed by the Ireland merger doctrine wholly inapplicable when a jury finds true beyond a reasonable doubt the conduct underlying a § 12022.53, subd. (d), firearm enhancement].)
In People v. Ireland (1969) 70 Cal.2d 522, the Supreme Court held a conviction for felony murder may not be based on a felonious assault that is an integral part of the homicide. A contrary rule, the Court explained, would eliminate the element of malice from the crime of murder in any case in which the homicide resulted from the felonious assault. (Id. at p. 539.)
b. Escamilla had no unilateral right to instructions on a lesser related offense
A criminal defendant has no right, absent agreement from the prosecution, to instructions on lesser offenses that are related to, but not necessarily included in, the charges actually filed. (People v. Birks, supra, 19 Cal.4th at p. 136; see Hopkins v. Reeves (1998) 524 U.S. 88 [118 S.Ct. 1895, 141 L.Ed.2d 76] [instructions on uncharged lesser related offenses not required as matter of federal due process].) Although acknowledging this binding precedent, Escamilla nonetheless argues an instruction on assault with a deadly weapon as a lesser related offense was necessary to ensure his right to present a defense since the evidence concerning his mental state when he shot Cervantes was entirely circumstantial. However, nothing in the instructions given prevented Escamilla from presenting evidence or arguing, as he did, that he had fired the gun unintentionally and without any intent to kill Cervantes. Accordingly, there was no infringement of Escamilla’s due process or Sixth Amendment rights to present a defense. (See, e.g., People v. Robinson (2005) 37 Cal.4th 592, 626-627.)
2. Imposition of an Upper Term Sentence Did Not Violate Escamilla’s Right to a Jury Trial
Escamilla contends the trial court’s imposition of upper term sentences for attempted voluntary manslaughter and the related firearm use enhancement based on facts neither found by a jury to be true beyond a reasonable doubt nor admitted by Escamilla violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and Blakely, supra, 542 U.S. 296.
In Cunningham, supra, 549 U.S. at page ___ the United States Supreme Court disagreed with the decision in Black I, supra, 35 Cal.4th 1238 and held California’s determinate sentencing law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by authorizing the trial judge to make factual findings that subject a defendant to the possibility of an upper term sentence.
While this case was pending on appeal, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II), holding the existence of at least one aggravating circumstance established by means that satisfy the governing Sixth Amendment authorities “renders a defendant eligible for the upper term sentence” under the determinate sentencing law, so that “any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.) “The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by trial court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
In Black II, supra, 41 Cal.4th at pages 818 to 820, relying on United States Supreme Court decisions holding the trial court may increase the penalty for a crime based upon the defendant’s prior convictions without submitting that question to a jury, (see Cunningham, supra, 127 S.Ct. at p. 868; Blakely, supra, 542 U.S. at p. 301; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [118 S.Ct. 1219, 140 L.Ed.2d 350] [“recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence”]), the California Supreme Court additionally held that aggravating factors relating to a defendant’s prior convictions are beyond the reach of Cunningham. “As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. . . . [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’” (Black II, at pp. 819-820.)
Under Black II, based on the trial court’s findings that Escamilla’s prior juvenile adjudications and adult convictions were numerous and of increasing seriousness and that he had served prior prison terms, Escamilla was eligible for the upper term sentences for attempted voluntary manslaughter and the firearm-use enhancement; and the trial court was authorized to impose those sentences whether or not it relied on any additional factors. (Black II, supra, 41 Cal.4th at p. 815.) Accordingly, Escamilla’s upper term sentences did not violate his Sixth Amendment right to a jury trial.
As discussed, Escamilla was sentenced after Blakely and prior to the California Supreme Court’s decision in Black I, supra, 35 Cal.4th 1238. The trial court was mindful of Blakely’s jury trial requirement and expressly acknowledged it was potentially prohibited from relying upon certain aggravating factors not found by a jury to impose upper term sentences. Accordingly, although the trial court identified additional aggravating factors, the court stated it was imposing the upper terms based solely on its evaluation of factors relating to Escamilla’s recidivism as outweighing any and all mitigating factors in this case.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.