Opinion
B223759
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO FRIAS, Defendant and Appellant.
Stephen M. Hinkle, 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, Assistant Attorney General, Steven D. Matthews and Margaret E. Maxwell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA359259)
APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford L. Klein, Judge. Affirmed in part, vacated in part, and remanded with directions.
Stephen M. Hinkle, 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, Assistant Attorney General, Steven D. Matthews and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
Ernesto Frias appeals from the judgment entered following his convictions by jury on two counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187; counts 1 and 2), each offense with personal use of a firearm (Pen. Code, § 12022.53, subd. (b)) and personal and intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (c)), and with, as to count 1, personal and intentional discharge of a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)) and infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). The court sentenced appellant to prison for two consecutive terms of life with the possibility of parole, plus 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement pertaining to count 1, plus 20 years to life for the Penal Code section 12022.53, subdivision (c) enhancement pertaining to count 2. We affirm the judgment, except that we vacate appellant's sentence and remand the matter for resentencing with directions.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on July 19, 2009, Manuel Gonzalez and three of his 15-year-old relatives, i.e., Jerry L., Andrew G., and Anthony Y., were walking to a store near 1st and Soto in Los Angeles. Gonzalez had tattoos but they were not gang-related. He was not a gang member and did not associate with gang members. Gonzalez testified appellant approached, pointed a gun at Gonzalez's head, and asked him, " 'Where the "fuck" are you from? Where are you guys from[?]' " Appellant cocked the gun. Gonzalez indicated he was not from anywhere, he was not a gang member, he did not want any problems, and he was just going to the store with "the kids." Gonzalez tried to go around appellant, but appellant blocked his path and told Gonzalez that he was not going anywhere. Gonzalez testified appellant told Gonzalez, " 'You're going to die today.' "
A male and female were also present. The male was appellant's friend. Gonzalez testified appellant talked to a male, then appellant said, " 'Well, we're going to go one on one. And I'm going to fight you[.]' " The female was very loud, and Gonzalez testified "she kind of provoked the situation too[.]" Gonzalez testified he had no choice and it was "either fight or get shot," so Gonzalez agreed to fight. At some point, appellant gave the gun to his male friend. Andrew G. testified a male told appellant to stop, repeatedly asked appellant what he was doing, grabbed the gun, and put it down. Andrew G. also testified the male took the clip out of the gun and put the gun in one pocket and the clip in another.
Gonzalez struck appellant first and fought him, knocking appellant down and injuring appellant's eye. Andrew G. testified appellant then told "his friend like 'Give me the gun. Give me the gun. Like forget this. I'm going to shoot him.' " Gonzalez told his relatives to run. Appellant got the gun and Gonzalez fled in a different direction from his relatives so appellant would shoot towards Gonzalez and not towards them. Gonzalez looked back and saw appellant shoot the gun. Gonzalez continued running, heard a total of four or five gunshots fired towards him, and was subsequently shot in the back. When appellant shot Gonzalez, appellant turned around and started shooting at Gonzalez's relatives. A bullet struck Jerry L.'s right ear and his head.
Gonzalez positively identified appellant at trial as the person who shot Gonzalez and Jerry L. Andrew G. positively identified appellant as the gunman who was with Gonzalez, and as the man whom Gonzalez fought. Andrew G. also identified appellant as the shooter. Jerry L. identified appellant as the man from whom a second man took a gun.
Los Angeles Police Officer Keith Mott was on patrol in the area when he heard five gunshots. Mott went to the area and shooting victims approached him. Andrew G. and Anthony Y. told Mott that their buddies had just been shot. Mott asked where the shooter was, and Andrew G. and Anthony Y. pointed to the corner. Mott saw an Hispanic male with a shaved head standing on the corner with a gun.
Mott testified as follows. The gunman "went into a house." The gunman also "went towards the house." Mott, who was with his partner, "gave out the location of where we saw the individual run to." There were two houses at the location, and "[w]e didn't know which house the suspect had ran into." Mott found casings "At the front of the location where the defendant was standing at the time I saw him before he ran into the house." During cross-examination, appellant asked Andrew G. if he saw the person who fired the shots "walk back into the house or run back into the house[.]" Andrew G. testified the person "walked back in." Police secured both houses. Mott testified he searched 114 South Soto and 114½ South Soto. Mott recovered from 114 South Soto or 114½ South Soto clothing that witnesses said the suspect had worn.
Los Angeles Police Officer Rick Huerta, a gang expert, testified as follows. The Cudahy 13 gang was a gang in the City of Cudahy. The gang's primary activities were shootings, robberies, assaults, selling narcotics, gun trafficking, witness intimidation, and thefts of various kinds. Appellant had the letters C and E on the right side of his head, and the letters "L.A." just below his eye. These tattoos meant appellant was a Cudahy 13 gang member. Appellant had admitted to other officers that he was a member of that gang. If a gang member asked "Where are you from," the question was a threat, indicated the gang member did not recognize the questioned person as a member of the gang member's neighborhood and the questioned person was in serious trouble. In response to a hypothetical question, Huerta opined the gunman's conduct in this case was gang-related. Appellant presented no defense evidence.
ISSUES
Appellant claims (1) the trial court erroneously admitted gang affiliation evidence, (2) the trial court erroneously refused to instruct on attempted voluntary manslaughter as a lesser offense of each of counts 1 and 2, (3) the trial court erred by instructing on flight, and (4) the trial court failed to exercise its informed discretion when the court imposed consecutive sentences on counts 1 and 2.
DISCUSSION
1. The Trial Court Properly Admitted Gang Affiliation Evidence.
The People filed a motion in limine requesting the court to admit evidence of appellant's membership in the Cudahy 13 gang on the ground his membership was relevant and admissible on the issues of his motive and intent. The motion also indicated the facts concerning the present offenses showed they were gang-related.
At the hearing on the motion, appellant objected to the admission of any gang evidence on the grounds there were no Penal Code section 186.22 allegations in this case, the Cudahy 13 gang was not a "criminal street gang" for purposes of that section, and the admission of gang evidence was highly prejudicial. The prosecutor indicated he sought to introduce gang expert testimony concerning the meaning of the question "Where are you from" and the significance of the tattoos on Gonzalez and appellant. The prosecutor argued that even though the tattoos on Gonzalez were not gang-related, they were relevant to show the present offenses were not random acts of violence but, instead, the victims had been targeted. The court stated, "Right. The words are stated just before the alleged shooting and I think the jury should hear the whole thing in context." Gang evidence was admitted at trial as indicated in the Factual Summary.
Appellant claims the trial court erroneously admitted gang affiliation evidence. We disagree. The gang evidence was relevant to appellant's motive and intent in committing the present offenses. "Cases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent." (People v. Funes (1994) 23 Cal.App.4th 1506, 1518 (Funes).)Assuming appellant raised an Evidence Code section 352 objection, the trial court did not abuse its discretion by implicitly overruling it. (Cf. Funes, at pp. 1518-1519; People v. Burns (1987) 196 Cal.App.3d 1440, 1455-1456; People v. Plasencia (1985) 168 Cal.App.3d 546, 552; People v. Frausto (1982) 135 Cal.App.3d 129, 140.) Moreover, the application of the ordinary rules of evidence, as here, did not impermissibly infringe on appellant's rights to due process and to present a defense. (Cf. People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
The fact there were no Penal Code section 186.22 allegations in this case, and the fact, if true, that the Cudahy 13 gang did not qualify as a "criminal street gang" for purposes of that section, do not compel a contrary conclusion. Appellant cites no authority holding that otherwise admissible gang evidence, such as that here, is rendered inadmissible unless there are section 186.22 allegations in a case and the gang was a qualifying gang.
2. The Trial Court Properly Refused to Instruct on Attempted Voluntary Manslaughter.
The trial court refused appellant's request that the court instruct on attempted voluntary manslaughter based on sudden quarrel or heat of passion. Appellant claims this was error. We disagree. In order for sudden quarrel or heat of passion to act as mitigation negating malice aforethought, the perpetrator's reason must be actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from this passion rather than judgment. (People v. Lasko (2000) 23 Cal.4th 101, 108.) The defendant must "actually both possess and act upon the required state of mind." (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016.) The provocation must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. (People v. Lee (1999) 20 Cal.4th 47, 59 (Lee).)
We have set forth the pertinent facts in our Factual Summary. We conclude for the following reasons that the trial court did not err by refusing to instruct on attempted voluntary manslaughter as a lesser offense of count 1 or 2. Insofar as count 1 is concerned, first, there was substantial evidence that appellant confronted the unarmed Gonzalez, put a gun to his head and threatened to kill him, later challenged him to fight, and Gonzalez fought, reasonably believing he had to fight or be shot. In People v. Johnston (2003) 113 Cal.App.4th 1299 (Johnston),the appellate court concluded the trial court erred by reducing the defendant's conviction from second degree murder to voluntary manslaughter based on sudden quarrel or heat of passion. In language equally applicable to this case, Johnston concluded the trial court erred, in part, because "Having [instigated the fight between the defendant and the victim, including challenging the victim to fight], [the defendant] cannot be heard to assert that he was provoked when the victim took him up on the challenge. Defendant was 'culpably responsible' for the altercation." (Id. at p. 1313.)
Second, even assuming appellant could assert he was provoked by Gonzalez and that legally adequate provocation existed, there was no direct evidence appellant acted under the influence of passion resulting from that provocation. (Lee, supra, 20 Cal.4th at p. 59.) For all the evidence reflects, appellant, after the fight, simply made a calculated, reasoned decision to escalate to the use of deadly force.
Third, Lee observed, "The heat of passion aroused by [the] 'sudden quarrel' or 'mutual combat' form of voluntary manslaughter is not implicated [in Lee]. A defendant who kills during the mutual combat contemplated by this type of voluntary manslaughter may not take undue advantage. (People v. Sanchez (1864) 24 Cal. 17, 27 [Sanchez].)"(Lee, supra, 20 Cal.4th at p. 60, fn. 6.) Lee observed that the defendant in that case took undue advantage by concluding a fight with the victim and, when it resumed, using a gun to kill him. (Ibid.) Sanchez stated, "in case of mutual combat, in order to reduce the offence from murder to manslaughter, it must appear that the contest was waged upon equal terms, and no undue advantage was sought or taken by either side; for, if such was the case, malice may be inferred, and the killing amount to murder." (Sanchez, at p. 27.) In the present case, following a fight involving the use of nonlethal force, appellant shot Gonzalez.
Insofar as count 2 is concerned, the trial court properly refused to instruct on attempted voluntary manslaughter as a lesser offense because there is no evidence that any provocation of appellant was caused by Jerry L. or was conduct reasonably believed by appellant to have been engaged in by Jerry L. The trial court did not err by refusing to instruct on attempted voluntary manslaughter as a lesser offense of count 1 or 2.
Finally, even assuming the trial court erred as urged, it does not follow that we must reverse the judgment. As to each of counts 1 and 2, the jury convicted appellant of attempted willful, deliberate, and premeditated murder. The jury therefore would not have convicted appellant of attempted voluntary manslaughter based on sudden quarrel or heat of passion as a lesser offense, even if the court had instructed the jury on the latter charge. Any error by the trial court in refusing to instruct on attempted voluntary manslaughter as a lesser offense of count 1 or 2 was not prejudicial. (Cf. People v. Box (2000) 23 Cal.4th 1153, 1171, 1213.)
3. The Trial Court Properly Instructed on Flight.
The court, using CALCRIM No. 372, instructed on flight. Appellant claims this was error. Citing to page 1274 of the reporter's transcript, appellant argues the evidence established that after appellant's encounter with Gonzalez and Jerry L., appellant "walked back into his house," and there was no evidence of flight. Appellant also argues, inter alia, the instruction places undue weight on flight evidence. We reject his claim.
That instruction read: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." During jury argument, appellant conceded the crimes occurred but argued appellant was not the shooter and, instead, the man to whom appellant gave the gun was the shooter.
A flight instruction is proper whenever evidence of the circumstances of a defendant's departure from the crime scene logically permits an inference that the defendant's movement was motivated by guilty knowledge. (People v. Abilez (2007) 41 Cal.4th 472, 522.) A flight instruction may be given despite a lack of evidence of the physical act of running, but the giving of such an instruction is error absent evidence of a purpose to avoid being observed or arrested. (Ibid.)
Mott testified he "gave out the location of where we saw the individual run to," police "didn't know which house the suspect ran into," and Mott found casings "At the front of the location where the defendant was standing at the time I saw him before he ran into the house." This was substantial evidence of the requisite flight.
Further, appellant has failed to demonstrate from the record (including his citation to page 1274 of the reporter's transcript, and the evidence that clothing consistent with his was recovered from one of the two houses) that the house appellant entered after the shooting was his house. The burden is on appellant to demonstrate error on appeal; error will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) The gravamen of appellant's remaining arguments, including his argument that the instruction places undue weight on flight evidence, has been previously rejected. (Cf. People v. Mendoza (2000) 24 Cal.4th 130, 180; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157-1159.) No instructional error occurred.
Finally, there is no dispute someone committed the present offenses. Appellant argued to the jury the issue was identity. There was ample evidence of appellant's guilt in this case, including ample identity evidence; therefore, the alleged instructional error was not prejudicial. (People v. Watson (1956) 46 Cal.2d, 818, 836.)
4. The Trial Court Prejudicially Erred When Imposing Consecutive Sentences on Counts 1 and 2.
a. Pertinent Facts.
During the sentencing hearing on March 29, 2010, appellant asked the court to impose concurrent sentences on counts 1 and 2. The court inquired if count 1 alone called for a sentence of 15 years to life. The prosecutor indicated count 1 called for a life sentence, but the court suggested the minimum parole eligibility term (MPET) as to count 1 was 15 years, and the court asked if that was correct. The prosecutor suggested Penal Code section 664 did not contain an MPET for premeditated attempted murder.
The court later asked the prosecutor what would appellant's minimum time be if the court ordered consecutive sentences on counts 1 and 2. The prosecutor indicated 45 years. The following later occurred: "The Court: All right. Okay. Versus 25?[] [¶] [The Prosecutor:] Yes, your Honor. [¶] The Court: All right."
The record suggests the court's reference here to 25 years was based on the Penal Code section 12022.53, subdivision (d) enhancement of 25 years to life as to count 1.
The court later indicated as follows. The court misunderstood the law and thought count 1 alone called for a sentence of 40 years to life in prison. The present case was very serious and the court wanted appellant to remain in prison for a considerable time and until he was no longer dangerous to society. The court indicated appellant probably would not be dangerous once he was "in his 60's," but the court was not sure that that would be true if appellant were merely "in his 40's." The court confirmed with appellant that he was 24 years old at the time of the sentencing hearing.
The trial court did not explain how it had arrived at this minimum term of 40 years. We note that, as mentioned previously, the trial court originally had thought the MPET for count 1 was 15 years. This suggests the trial court arrived at the 40-year period by adding the term of 15 years to the 25 years which was the minimum term of the Penal Code section 12022.53, subdivision (d) enhancement of 25 years to life pertaining to count 1. Ultimately, the trial court did not explicitly state what its understanding was as to what appellant's MPET was as to count 1, or what his MPET would have been if the trial court had imposed concurrent sentences on counts 1 and 2.
The court sentenced appellant to prison on count 1 for a term of life with the possibility of parole for premeditated attempted murder, plus 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement pertaining to that count, with, as to count 2, a consecutive term of life with the possibility of parole for premeditated attempted murder, plus 20 years to life, purportedly pursuant to the Penal Code section 12022.53, subdivision (c) enhancement pertaining to that count.
The trial court simply referred to the sentence here as "life." We understand the trial court to have meant life with the possibility of parole. (Pen. Code, § 664, subd. (a).)
See footnote 4, ante.
b. Analysis.
Appellant claims the trial court failed to exercise its informed discretion when the court imposed consecutive sentences on counts 1 and 2 (hereafter, consecutive sentences) because the trial court understated what appellant's MPET would have been if the court had imposed concurrent sentences on those counts (hereafter, concurrent sentences) and understated what appellant's MPET would be as a result of the consecutive sentences. Our independent research convinces us appellant is correct.
(1) Appellant's MPET as to Count 1 and Its Section 12022.53, Subdivision (d) Enhancement.
We first calculate appellant's MPET as to count 1 and its Penal Code section 12022.53, subdivision (d) enhancement. As for count 1 itself, the jury convicted appellant of premeditated attempted murder. Section 664 provides the punishment for that offense is imprisonment in state prison for "life with the possibility of parole." Section 3046, subdivision (a)(1) provides (and respondent concedes) that, absent any other consideration, the MPET for premeditated attempted murder is seven years.
Subsequent statutory references are to the Penal Code.
7 Section 3046, states, in relevant part, "(a) No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following: [¶] (1) A term of at least seven calendar years. [¶] (2) A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole. [¶] (b) If two or more life sentences are ordered to run consecutively to each other pursuant to Section 669, no prisoner so imprisoned may be paroled until he or she has served the term specified in subdivision (a) on each of the life sentences that are ordered to run consecutively."
The remaining issue as to count 1 pertains to its section 12022.53, subdivision (d) enhancement of 25 years to life. Our research has revealed no cases calculating the total MPET when a defendant was convicted of premeditated attempted murder with a true finding as to a section 12022.53, subdivision (d) enhancement allegation and the court sentenced the defendant to prison for life with the possibility of parole for the offense plus a term for the enhancement. However, as discussed below, our research has revealed case authority calculating that MPET under section 3046 as a basis for determining the minimum term of an indeterminate sentence imposed under the "Three Strikes" law where the defendant had suffered two strikes.
In People v. Miranda (2011) 192 Cal.App.4th 398 (Miranda), a jury convicted the defendant of, inter alia, premeditated attempted murder with a true finding as to a section 12022.53, subdivisions (d) and (e)(1) enhancement allegation, and the defendant had suffered two strikes. (Miranda, at pp. 402-403.) Miranda was confronted with the determination of the minimum term of an indeterminate sentence to be imposed pursuant to section 667, subdivision (e)(2)(A) of the Three Strikes law. Subdivision (e)(2)(A) provides that the greater of three optional terms or periods determines said minimum term. (Miranda, at pp. 414-415.) The third option, i.e., subdivision (e)(2)(A)(iii), included a "period prescribed by Section . . . 3046."
Miranda relied on People v. Jenkins (1995) 10 Cal.4th 234 (Jenkins). Jenkins discussed the determination of the minimum term of an indeterminate sentence to be imposed pursuant to section 667.7, subdivision (a)(1), a habitual criminal statute applicable to defendants who had inflicted great bodily injury and had suffered prior prison terms. (Miranda, supra, 192 Cal.App.4th at pp. 415-416.) That section predated, and was similar to, the Three Strikes law. Section 667.7, subdivision (a)(1) (like the Three Strikes law) indicated a "period prescribed by Section . . . 3046" could serve as a basis for determining the minimum term for an indeterminate sentence imposed under section 667.7, subdivision (a)(1). (Miranda, at pp. 415-416.) Jenkins discussed whether five-year section 667, subdivision (a)(1) enhancements were to be included in that "period prescribed by Section . . . 3046." (Miranda, at pp. 416-417.)
Jenkins noted a section 667, subdivision (a)(1) enhancement was required to be imposed consecutively to the term imposed for the current offense. (Miranda, supra, 192 Cal.App.4th at p. 416.) Jenkins also noted former section 3046. (Miranda, at p. 416.) That section provided "[n]o prisoner imprisoned under a life sentence may be paroled until he or she has served at least seven calendar years or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, whichever is greater. . . ." (Former section 3046, italics added.)
Construing sections 667, subdivision (a)(1) and former section 3046 together, Jenkins concluded a section 667, subdivision (a)(1) enhancement was a "term as established pursuant to any other section of law" within the meaning of former section 3046, because said enhancement increased the "minimum period of confinement under a life sentence before eligibility for parole" within the meaning of former section 3046. As a result, Jenkins also concluded section 667, subdivision (a)(1) enhancements were to be included in the "period prescribed by Section . . . 3046" which served as a basis for determining the minimum term for an indeterminate sentence under section 667.7, subdivision (a)(1). (Jenkins, supra, 10 Cal.4th at pp. 251-252.)
Based on Jenkins, Miranda similarly concluded a "period prescribed by Section . . . 3046" within the meaning of section 667, subdivision (e)(2)(A)(iii) of the Three Strikes law included the defendant's section 12022.53, subdivisions (d) and (e)(1) enhancement. Miranda calculated the defendant's MPET under section 3046 as seven years for the premeditated attempted murder plus 25 years for the enhancement. The defendant's minimum term for his indeterminate sentence under the Three Strikes law thus included 32 years (the defendant's minimum term also included additional components not pertinent here). (Miranda, supra, 192 Cal.App.4th at pp. 414-415, 417; see People v. Acosta (2002) 29 Cal.4th 105, 115.)
Miranda involved calculation of, inter alia, a total MPET under section 3046 as a basis for determining the minimum term of an indeterminate sentence under the Three Strikes law. However, the present case is not a Three Strikes law case. Nonetheless, we believe Miranda's section 3046 analysis controls this case.
In the present case, the trial court, when sentencing on count 1, never expressly referred to a seven-year MPET for the offense of premeditated attempted murder. To the extent respondent suggests the court calculated appellant's total MPET on counts 1 and 2 as 45 years and implicitly calculated an additional seven-year MPET for premeditated attempted murder, the record fails to demonstrate this. In fact, when the court referred to an MPET for the offense of premeditated attempted murder, the court erroneously suggested that MPET was 15 years.
We conclude that, in this case, the MPET on count 1 with its section 12022.53, subdivision (d) enhancement is 32 years, consisting of seven years pursuant to section 3046, subdivision (a)(1) for the premeditated attempted murder, plus 25 years for the enhancement. (Miranda, supra, 192 Cal.App.4th at pp. 414-417.)
Appellant suggests we treat the minimum term of 25 years of his section 12022.53, subdivision (d) enhancement as a determinate term with the result that, under section 669, the 25 years would be a term appellant would serve before he became eligible for parole, in addition to the seven-year MPET for premeditated attempted murder. However, 25 years to life is an indeterminate term. A minimum term of an indeterminate term is not a determinate term. (In re Cervera (2001) 24 Cal.4th 1073, 1081-1082.) Our reliance upon Miranda provides the result appellant seeks.
(2) Appellant's MPET As to Count 2 and Its Section 12022.53, Subdivision (c) Enhancement.
We next address appellant's MPET for count 2 and its section 12022.53, subdivision (c) enhancement. Appellant's MPET for the offense of premeditated attempted murder (count 2) is seven years. (§§ 664, 3046, subd. (a)(1).)
The remaining issues as to count 2 pertain to its section 12022.53, subdivision (c) enhancement. The trial court imposed a term of 20 years to life, purportedly pursuant to that subdivision. However, as the parties concede, a section 12022.53, subdivision (c) enhancement is punishable by imprisonment in the state prison for 20 years, not 20 years to life. For reasons discussed post, we will vacate appellant's sentence and remand this matter for resentencing. We are confident the trial court, following remand, will impose a sentence of 20 years, not 20 years to life, for the section 12022.53, subdivision (c) enhancement pertaining to count 2.
However, the issue remains as to whether a 20-year section 12022.53, subdivision (c) enhancement is to be included in the MPET pertaining to count 2. We conclude it is. First, we believe a 20-year section 12022.53, subdivision (c) firearm enhancement is sufficiently similar to a 25-years-to-life section 12022.53, subdivisions (d) and (e)(1) firearm enhancement; therefore, a period of 20 years for a section 12022.53, subdivision (c) enhancement is, pursuant to section 3046, subdivision (a)(2), included in the calculation of the defendant's MPET for count 2 and its enhancement. (Cf. Miranda, supra, 192 Cal.App.4th at pp. 414-415, 417.)
Second, Jenkins, in its analysis supporting its conclusion that the total MPET in that case included section 667, subdivision (a) enhancements, relied upon a construction of section 667, subdivision (a) and former section 3046. However, Jenkins also relied on a second rationale, i.e., a construction of former section 669 and former section 3046. Former section 669 stated, in relevant part, that " '[w]henever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment imposed pursuant to Section . . . 667 [among other provisions], the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person's eligibility for parole as calculated pursuant to Section 3046 or pursuant to any other section of law that establishes a minimum period of confinement under the life sentence before eligibility for parole.' "(Jenkins, supra, 10 Cal.4th at p. 251.)
Construing former section 669 and former section 3046 together, Jenkins concluded (1) a five-year section 667, subdivision (a)(1) enhancement was a "determinate term" within the meaning of former section 669, and (2) such a determinate term was a "term as established pursuant to any other section of law" within the meaning of former section 3046, because said determinate term increased the "minimum period of confinement under a life sentence before eligibility for parole" within the meaning of former section 3046. (Jenkins, supra, 10 Cal.4th at p. 251, italics omitted.) As a result, Jenkins also concluded section 667, subdivision (a)(1) enhancements were to be included in the "period prescribed by Section . . . 3046" which served as a basis for determining the minimum term for an indeterminate sentence under section 667.7, subdivision (a)(1). (Jenkins, at pp. 250-251.)
Section 669 in effect at the time of appellant's offenses was substantially similar to the former section 669 at issue in Jenkins. The 20-year section 12022.53, subdivision (c) enhancement in the present case is a "determinate term of imprisonment" within the meaning of section 669. Respondent concedes the section 12022.53, subdivision (c) enhancement is a "determinate enhancement" and a "determinate term." We conclude the MPET on count 2 with its section 12022.53, subdivision (c) enhancement is 27 years, consisting of seven years pursuant to section 3046, subdivision (a)(1) for the premeditated attempted murder, plus 20 years for the enhancement.
Respondent argues the trial court overestimated the total MPET pertaining to count 2 by including the section 12022.53, subdivision (c) enhancement. Respondent maintains this is so because that enhancement is not a "minimum period of confinement comparable to the periods articulated in section 3046 or section 186.22." Respondent apparently refers to the fact that section 3046, subdivision (a)(2), as well as section 186.22, subdivision (b)(4) and (5), involve indeterminate terms with minimum terms. We reject respondent's argument. It is not true that only minimum terms of indeterminate terms may be included in a calculation of an MPET. In light of Jenkins and sections 669 and 3046, inclusion of appellant's section 12022.53, subdivision (c) enhancement, a determinate term, in the MPET pertaining to count 2 is proper.
(3) The Trial Court Prejudicially Erred in Its Calculation of the Total MPET.
As mentioned, appellant's MPET on count 1 with its section 12022.53, subdivision (d) enhancement was 32 years. His MPET on count 2 with its section 12022.53, subdivision (c) enhancement was 27 years. Accordingly, if the court had imposed concurrent sentences, appellant's total MPET would have been 32 years. The trial court concluded that if it had imposed concurrent sentences, appellant's total MPET would have been 25 years; this was error.
Moreover, the trial court imposed consecutive sentences; therefore, as we previously have concluded, appellant's total MPET was 59 years. The trial court believed that since it imposed consecutive sentences, appellant's total MPET was 45 years. This too was error.
The remaining issue is whether the above two errors were prejudicial. For the reasons discussed below, we conclude the errors were prejudicial. The court indicated the present case was very serious and the court wanted appellant to remain in prison for a considerable time and until he was no longer dangerous to society. The court indicated appellant probably would not be dangerous once he was in his sixties, but the court was not sure that that would be true if appellant were in his forties.
At the time of the sentencing hearing, appellant was 24 years old. The trial court erroneously calculated concurrent sentences as calling for a total MPET of 25 years. Based on this erroneous calculation, appellant would have been 49 years old (24 years old plus 25 years), before he was eligible for parole. That is, he would have been first eligible for parole in his forties, and the trial court had suggested appellant might have been dangerous if he were released on parole in his forties. This explains why the court imposed consecutive sentences.
However, the correct calculation for the total MPET based on concurrent sentences would have been 32 years; therefore, if the court had imposed concurrent sentences, appellant would have been 56 years old (24 years old plus 32 years) when he became eligible for parole. That is, appellant would have been first eligible for parole in his fifties. The trial court expressly stated its assessment of appellant's greater dangerousness in his forties and his lesser dangerousness in his sixties, but the trial court never expressly stated its assessment of appellant's dangerousness or lack thereof in his fifties. The record is not clear concerning how the trial court would have assessed the dangerousness issue if the court had been aware of the correct calculation and, we note, 56 years old is obviously closer to appellant's sixties than his forties.
Moreover, the trial court erroneously believed the total MPET of appellant's consecutive sentences was 45 years, meaning appellant would become eligible for parole when he was 69 years old (24 years old plus 45 years). However, as we have discussed, appellant's total MPET, given consecutive sentences, is 59 years, meaning appellant will become eligible for parole when he is 83 years old (24 years old plus 59 years). That is, when the trial court imposed consecutive sentences, the trial court did not realize appellant in fact would have to serve in prison 14 more years (59 years less 45 years) before he became eligible for parole. We express no opinion as to whether appellant should have to serve this additional 14-year period, we simply note it is not insignificant. We believe the trial court should have an opportunity to consider the correct calculation on this issue as well when determining whether to impose concurrent or consecutive sentences.
Respondent argues the trial court's calculation errors were not prejudicial because concurrent sentencing, even if based on correct calculations, would not have accomplished the trial court's alleged objective that appellant remain ineligible for parole at least until he was in his sixties. However, the trial court never expressly stated it wanted to render appellant ineligible for parole at least until he was in his sixties. The trial court's comments were fluid, tentative, and general. The court indicated appellant probably would not be dangerous once he was in his sixties, but the court did not expressly state whether appellant probably would or would not be dangerous in his fifties, or, in particular, when he was 56 years old. We reject respondent's argument.
Where, as here, the record reflects the trial court has not exercised informed discretion during sentencing, remand for resentencing is appropriate (cf. People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 (Belmontes); People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1248-1249), but remand is not required if the record shows the trial court clearly indicated it would not have exercised its discretion by, in this case, imposing concurrent sentences (cf. Belmontes, at p. 348, fn. 8), or if that exercise would constitute an abuse of discretion (cf. People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1055). The record does not show the trial court clearly indicated it would not have exercised its discretion by imposing concurrent sentences. Respondent does not argue imposition of concurrent sentences based on correct calculations would constitute an abuse of discretion. We will affirm the judgment, except that we will vacate appellant's sentence and remand the matter for resentencing to permit the trial court to exercise its informed discretion when imposing concurrent or consecutive sentences on counts 1 and 2. We express no opinion concerning how the trial court should exercise that discretion, or concerning what appellant's sentence should be.
DISPOSITION
The judgment is affirmed, except that appellant's sentence is vacated and the matter is remanded for resentencing consistent with this opinion. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment following resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
CROSKEY, Acting P. J.
ALDRICH, J.