Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. GA029611, Leslie E. Brown, Judge.
Verna Wefald, 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, Victoria B. Wilson, Michael R. Johnsen and Keith H. Borjon, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Jose Gonzalez, appeals from the judgment entered following his conviction, by jury trial, for two counts of first degree murder with a multiple murder special circumstance finding, and one count of being a felon in possession of a gun, with a firearm use finding (Pen. Code, §§ 187, 190.2, subd. (a)(3), 12021, 12022.5). Sentenced to state prison for consecutive terms of life without possibility of parole. Gonzalez claims there was sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
FACTUAL BACKGROUND
Gonzalez’s trial took place in 1998 before Judge Victor H. Person. The following statement of facts is taken from the previous California Supreme Court decision in this matter, People v. Gonzalez (2006) 38 Cal.4th 932, 938-942:
“A. Guilt Phase
“1. Prosecution Evidence
“During the evening of June 17, 1996, seven men – Jose Gutierrez, Juan Pablo Rocha, brothers Mario, Juan, and Oracio Jimenez, and victims Jose Albert Rodriguez and Hector Ricardo Gonzalez Martinez – were working on a car in the driveway of the Jimenez brothers’ house at 835 North Cordova Avenue, in an area of East Los Angeles that the Lopez Maravilla street gang claimed as its home ‘turf.’ At some point, a man, identified as defendant, fired two shots from a rifle towards the men, hitting Rodriguez and Martinez. Both Rodriguez and Martinez died of single gunshot wounds to the body. Defendant was a member of a street gang, the Lott Stoners 13, that was a rival of the Lopez Maravilla gang. He had ‘Lott 13’ tattooed on his neck and, at least by the time of trial, also on the back of his head.
“The prosecution presented two kinds of evidence that defendant was the gunman: (1) eyewitness identifications that were, with one exception, repudiated at trial; and (2) evidence, also repudiated at trial, that defendant told a fellow gang member that he was the shooter.
“Juan Rocha identified defendant as the gunman at trial. He had previously selected defendant’s photograph from a photographic lineup and then defendant himself from a live lineup.
“Oracio Jimenez selected defendant’s photograph from a photographic lineup and then identified defendant from a live lineup as the gunman. At the live lineup, he said he was ‘100 percent sure’ of his identification. He did not identify anyone at the preliminary hearing or at trial. At the preliminary hearing, he said that he was ‘terrified’ and therefore would not identify anyone in court. At trial, he said that defendant was not the gunman, but he also said that he did not know what the gunman looked like. He said he had selected defendant’s photograph because everyone was saying it was No. 2 (defendant’s photograph), and he had identified defendant at the live lineup because defendant had a gang tattoo on the back of his head.
“Mario Jimenez selected defendant’s photograph from a photographic lineup as ‘look[ing] the most like the guy with the gun.’ At trial, he identified no one as the gunman. He said he had lied when he selected defendant’s photograph as looking like the gunman, and he had done so only because of what others had told him. He could not remember who these others were. When he selected the photograph, he told the police that he had not spoken to anyone about the photographs.
“Jose Gutierrez selected defendant’s photograph from a photographic lineup as ‘looking like the one that had the gun.’ Later, he identified defendant from a live lineup as the gunman. He wrote that he was ‘100 percent sure’ of this identification. At trial, he said he did not get a good look at the gunman, and he did not identify anyone. He said that he had selected defendant’s photograph ‘based on rumors’ from ‘people in the street,’ whose identity he could not remember. He said he had identified defendant at the live lineup because defendant had a gang tattoo on the back of his head. He had testified at a pretrial hearing that defendant was not the gunman. Los Angeles County Sheriff’s Detective Martin Rodriguez, the investigating officer, testified that after Gutierrez so testified at the pretrial hearing, Gutierrez looked in defendant’s direction and winked. Gutierrez denied winking at defendant.
“Juan Jimenez never identified anyone as the gunman.
“Homero Cardenas, like defendant a member of the Lott Stoners 13 gang, told the police in a taped statement that defendant had told him that he, defendant, had committed the murders. On direct examination at trial, Cardenas acknowledged telling police this, but he said that, in fact, defendant did not tell him who committed the murders. He also said that it was hard for him to testify because he ‘might feel something might happen to me after’ his testimony. The next day, on redirect examination, Cardenas testified that defendant did tell him that he was the gunman. Then, on recross-examination, he changed his testimony again. He said that he had just lied on redirect examination, and that his testimony the day before (that defendant had not admitted being the gunman) was the truth.
“The police seized a .223-caliber Armalite rifle from under a house in Los Angeles. Evidence indicated that the Lott Stoners 13 gang used the house to store weapons. Ballistics analysis established that two bullet casings that the police recovered from in front of the Jimenez residence after the shooting came from that rifle.
“At the time of the shooting, none of the seven men who were at the Jimenez house were members of a gang. Sometime after he identified defendant at the live lineup, and before he testified at trial, Gutierrez became a member of the Lopez Maravilla gang. Gutierrez testified that the Lopez Maravilla gang and the Lott Stoner 13 gang do not get along.
“Sergeant Al Garcia testified as an expert on street gangs in East Los Angeles. The gangs are concerned about their ‘turf’ – the areas in which they are located. The Lott Stoners 13 gang and the Lopez Maravilla gang claimed turfs that were divided by a common street. The two gangs were ‘bitter enemies’ that often assaulted each other. In gang culture, it was bad to be a ‘rat’ or a ‘snitch,’ i.e., someone who assisted law enforcement as a witness or an informant. Sergeant Garcia testified that such persons are often intimidated not to testify. It does not matter whether a person provides information against a fellow gang member or a rival gang member. Either way, the person is considered to be assisting law enforcement and might be intimidated. Sergeant Garcia also testified that, in his experience, a member of the Lott Stoners 13 gang would not falsely tell police that a fellow Lott Stoners 13 gang member had committed a crime.
“The parties stipulated that defendant had a prior felony conviction.
“2. Defense Evidence
“Defendant presented evidence that the police first received a call about the shooting at 8:49 p.m., on June 17, 1996, and that, based on the time of the call, the incident itself occurred around 8:45 p.m. Edwin Krupp, an astronomer, testified that in Los Angeles on June 17, 1996, sunset occurred at 8:06 p.m. That night, the end of ‘evening civil twilight,’ meaning ‘the time that we generally say it is dark,’ was 8:35 p.m. A person would not notice any difference between the lighting at 8:35 p.m. and 8:45 p.m. The presence or absence of artificial light would affect how a person could see at that time.
“Oracio Jimenez had testified during the prosecution case-in-chief that a street light was on that evening ‘a little bit to the left, right across the street.’ ”
“Dr. Walter Fierson testified about defendant’s impaired vision. Defendant has only one functioning eye. His uncorrected vision in that eye was 20/60. George Little, a defense investigator, testified about an interview he and defense counsel had with Juan Rocha, the witness who consistently identified defendant as the shooter.
“Diana Alvarado, defendant’s longtime girlfriend, testified that defendant was with her all day on June 17, 1996. The two arrived at defendant’s home around 7:30 that evening and were joined by Maria Velasco and another person. Around 9:00 p.m., the other two left, but Alvarado stayed with defendant until some time after 10:00 p.m.
“Maria Velasco testified that she and a friend were with defendant and Alvarado the evening of June 17, 1996, until she and the friend left sometime around 9:00 to 9:30. She saw Alvarado often after June 17, 1996, but the first time Alvarado told her about defendant’s arrest for a crime committed before 9:00 p.m. on that day was in September 1996.
“3. Rebuttal
“Detective Rodriguez testified that he spoke with defendant on July 9, 1996, about his activities on June 17, 1996. Defendant said that Alvarado dropped him off at his home at 8:00 p.m. that day. He never mentioned being with Maria Velasco that day.”
PROCEDURAL BACKGROUND
At trial, Gonzalez was convicted of first degree murder with a multiple murder special circumstance finding, and being a felon in possession of a gun. The original jury was unable to reach a penalty verdict, but after a penalty retrial a second jury returned a death verdict. The trial court denied the automatic motion to modify the verdict (§ 190.4) and sentenced Gonzalez to death.
Upon Gonzalez’s automatic appeal to the Supreme Court, his convictions and the special circumstance finding were affirmed. However, the Supreme Court concluded the prosecution’s failure to provide discovery of its penalty phase rebuttal evidence required reversal of Gonzalez’s death sentence.
When the case was remanded to the superior court for resentencing, it did not go back to Judge Person, but instead was assigned to Judge Leslie E. Brown. The prosecutor told Judge Brown: “Your Honor, . . . our office has decided not to retry the penalty phase and would ask the court then sentence the defendant to life without the possibility of parole.” Defense counsel Morton Borenstein told the judge: “I was appointed on this matter in order to deal with the sentencing after the remittitur. His previous counsel had been appointed . . . as a bar panel attorney and they’re no longer available. When the case was first assigned to me, I contacted his appellate counsel in the Habeas Corpus Resource Center in San Francisco, who are his current habeas corpus counsel who were appointed by the California Supreme Court at the time of the capital appeal. [¶] I was informed that there are no particular issues to be raised by myself at this time rather than simply submitting it for resentencing. . . . There’s no legal cause why sentence shouldn’t be imposed.”
According to Gonzalez, “Lead trial counsel, Donald Feinberg, retired from the practice of law in 2003. It is unknown why second counsel M. David Houchin was not appointed to represent appellant at the resentencing hearing.”
Judge Brown then stated: “The court incorporates by this reference the applicable finding made by Judge Person at the time of sentencing on August 19th, 1998 and sentences the defendant as follows: [¶] Probation is denied. Count three, the possession of a firearm in violation of Penal Code section 12021(a)(1), the court selects that as the base term and selects the upper term of three years as to that count. The foregoing sentence is ordered stayed pending execution of the sentence in count one and two. As to counts one and two, the court imposes the following sentence: [¶] It’s the judgment of the court that . . . for the offenses of murder . . . on which you were previously . . . found guilty, the jury having found the offenses of murder to be in the first degree and the jury having returned a verdict of [multiple murder] special circumstances, . . . to be true. And having previously denied your motion for a new trial, it’s the order of the court that you shall be sentenced to life in prison without the possibility of parole.”
After Judge Brown then proceeded to other sentencing matters, the prosecutor asked:
“[B]ut did the court sentence him on both counts one and count two?
“The Court: Yes.
“[The prosecutor]: Is the court indicating whether or not those are to be concurrent or consecutive sentences?
“The Court: Those were to be consecutive . . . .”
CONTENTIONS
1. Gonzalez’s constitutional rights were violated when he was sentenced to consecutive terms of life without possibility of parole.
2. The trial court committed Cunningham error by imposing an upper term on count 4, and by imposing consecutive terms on counts 1 and 2.
DISCUSSION
1. Consecutive life-without-possibility-of-parole terms were proper.
Gonzalez contends his constitutional rights were violated when he was sentenced to consecutive life-without-possibility-of-parole terms. He claims he was denied due process because he was not resentenced by the original trial judge, and because the judge who did resentence him incorporated by reference the original trial judge’s sentencing findings. Gonzalez also claims he was denied effective assistance because the attorney who represented him at the resentencing hearing did nothing to protect his rights. These claims are meritless.
1. Resentencing by different judge.
Gonzalez complains that “[d]espite the fact that the trial judge, Victor Person, was still a member of the Los Angeles County Superior Court at the time of the resentencing hearing, the record does not reflect why Judge Brown was assigned to sentence appellant after the prosecution elected not to seek the death penalty.”
Contrary to Gonzalez’s underlying premise, he was not entitled to have the original trial judge resentence him. “It is settled that it is not error for a judge other than the one who tried a criminal case to pronounce judgment and sentence.” (People v. Downer (1962) 57 Cal.2d 800, 816; accord People v. Jacobs (2007) 156 Cal.App.4th 728, 733 [“Unlike a defendant who enters into a plea bargain with an implied term that the same judge who accepts the plea will impose the sentence [citation], a defendant who has been convicted after trial has no such right.”].)
Gonzalez’s reliance on People v. Strunk (1995) 31 Cal.App.4th 265, is misplaced because, in that case, the resentencing judge did not rely on findings made by the original trial judge. As Strunk explained: “Although there may be certain cases and circumstances where sentencing by other than the trial judge will not interfere with the defendant’s right to a fair and full sentencing hearing . . . this is not one of them. Here the sentencing judge exercised his sentencing discretion based solely on the probation officer’s report with respect to the conclusion there were no mitigating factors. Because the judge had not sat through the trial, and only reviewed the probation report which did not list at least three of the mitigating factors claimed by Strunk in the trial record, we cannot find that the judge exercised its [sic] required independent sentencing discretion or properly weighed all the circumstances. The matter must thus be remanded for a new sentencing hearing. [¶] Moreover, because the trial judge is the only person who is in the position to properly review and weigh the claimed mitigating circumstances in this case, which are so dependent upon the facts adduced at trial, the matter must be remanded to him.” (Id. at p. 275.)
Here, by contrast, Judge Brown incorporated the findings made by Judge Person at the original sentencing hearing. Judge Person made very detailed findings, particularly with regard to the credibility of the various prosecution and defense witnesses. Gonzalez cites People v. Manson (1976) 61 Cal.App.3d 102, for the proposition “that if a different judge legitimately presides at a sentencing hearing on remand from an appellate court, the new judge cannot adopt the credibility findings made by the trial judge.” Manson does not support this proposition. Manson held defendant Leslie Van Houten had been denied effective assistance of counsel because, when her attorney disappeared right after the presentation of evidence, the trial court appointed new counsel to make a closing argument. Manson reasoned that, having been absent during the taking of evidence, “[t]he plain fact is that Van Houten’s [new] counsel did not provide adequate [closing] argument because he could not effectively argue the issue of credibility.” (Id. at p. 200.) Here, on the other hand, Judge Brown relied on the findings made by Judge Person, who sat through the trial and had the opportunity to observe all the witnesses.
Gonzalez complains “Judge Brown did not order an updated probation report despite the fact that appellant had now been in custody for a decade.” But “a probation report is not necessarily required if defendant is statutorily ineligible for probation . . . . [Citations.] This is consistent with section 1203, subdivision (b)(1), which provides in pertinent part that the trial court shall order a probation report ‘before judgment is pronounced’ for persons ‘convicted of a felony’ who are ‘eligible for probation.’ ” (People v. Dobbins (2005) 127 Cal.App.4th 176, 180 [“case law has recognized that a probation report is not necessarily required if defendant is statutorily ineligible for probation, for example, because of a prior strike”].) Gonzalez was not eligible for probation under section 1203.06, subdivision (a)(1)(A), because he personally used a gun in the commission of the murders.
Gonzalez claims he was denied effective assistance of counsel at the resentencing hearing because his attorney simply submitted the question of an appropriate sentence without any argument. As a practical matter, however, there was nothing to contest at Gonzalez’s resentencing. Gonzalez disagrees with this characterization, arguing the imposition of consecutive rather than concurrent terms “will subject him to a more severe custody classification,” and that under title 15 of the California Code of Regulations, sections 3375.3 and 3377.2, this will “affect where he is housed and for how long and will also affect what type of rehabilitative or other programs he may participate in.”
This is what distinguishes the cases Gonzalez relies on where prejudice was presumed because there was something at stake. (See Powell v. State of Alabama (1932) 287 U.S. 45, 56 [77 L.Ed. 158] [convictions reversed in notorious Scottsboro Boys case because trial court purported to appoint entire local bar to represent defendants at their capital trial: “[The attorneys] would not, thus collectively named, have been given that clear appreciation of responsibility or impressed with that individual sense of duty which should and naturally would accompany the appointment of a selected member of the bar, specifically named and assigned.”]; Miller v. Martin (7th Cir. 2007) 481 F.3d 468, 473 [resentencing ordered where defense counsel, wrongly assuming defendant’s conviction by trial in absentia would necessarily be overturned on appeal, said nothing at sentencing].) Furthermore, Gonzalez’s assertion defense counsel might have been successful in arguing for concurrent terms, because the evidence against him was thin, is entirely unpersuasive. The eyewitness identifications were no more unreliable than in the usual gang shooting case. Gonzalez’s argument he could not have been the gunman given his physical disabilities is predicated on his implicit suggestion the gunman must have been a sharpshooter, whereas the evidence showed the gunman had tried to spray gunfire toward a whole group of men and it was only because his gun jammed that each of the two victims was hit just once.
But as the Attorney General points out: “While it is true that service of consecutive sentences increases an inmate’s classification level, a ‘sentence of death or life without the possibility of parole shall result in a maximum score of 50.’ [Citation.] Appellant’s sentence of life without parole, by itself, already weighs as a classification factor as heavily as any other possible term of imprisonment.” Section 3375.3(a)(3)(A) of title 15 provides, in pertinent part, that “[a] sentence of death or life without possibility of parole shall result in a maximum score of 50,” and section 3375.3(a)(3)(B)(4) states: “If the score is more than 50, then 50 shall be used as the final term score.” Hence, there would be no difference in Gonzalez’s treatment in prison whether his sentence had been a single life-without-possibility-of-parole term or consecutive life-without-possibility-of-parole terms. Similarly, section 3377.2 (b)(1) (Criteria for Assignment of Close Custody) provides: “Close A Custody Case Factor Criteria: An inmate who meets any of the Close A Custody case factor criteria described in this subsection shall be assigned to Close A Custody. [¶] (1) Lengthy Sentence. An inmate serving a sentence of Life Without the Possibility of Parole (LWOP) shall serve his or her first five (5) years of incarceration in CDC at Close A Custody before he or she shall be eligible for custody reduction consideration.” Gonzalez does not explain how the imposition of consecutive life-without-possibility-of-parole terms prejudiced him under this provision.
Section 3375.3(a)(3)(A) provides: “Length of term. Presentence and postsentence credits shall not be subtracted from length of term. A sentence of death or life without possibility of parole shall result in a maximum score of 50. For sentences of 25 years-to-life for murder, the base term is 25 years. For sentences under Penal Code section 667.7 with a term of life without parole for 20 years, the base term is 20 years. For all other life sentences, the base term is 15 years. Any enhancements or determinant terms for other counts or offenses to be served consecutive to a life term shall be added to the base term before calculation of the term score.”
We conclude Gonzalez suffered no prejudice at the resentencing hearing, and that consecutive life-without-possibility-of-parole terms were properly imposed.
2. There was no Cunningham error.
Gonzalez contends his resentencing violated Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856 [166 L.Ed.2d 856], because the factors justifying an upper term on his felon in possession of a firearm conviction, and consecutive life-without-possibility-of-parole terms on his murder convictions, were not found by the jury. This claim is meritless.
In Apprendi v. New Jersey (2000) 530 U.S. 466 147 L.Ed.2d 435, the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, 301159 L.Ed.2d 403, the court reiterated this rule and applied it to invalidate an enhanced sentence imposed under Washington’s determinate sentencing law, whose structure was somewhat akin to the triad structure of California’s Determinate Sentencing Law (DSL).
In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held: “[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [and] Blakely . . . .” (Id. at p. 1254.)
However, Cunningham v. California, supra, 127 S.Ct. 856, overruled Black I, holding that the middle term under the DSL is “the relevant statutory maximum” (id. at p. 871) for Sixth Amendment purposes, and therefore, other than the fact of a prior conviction, “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Id. at pp. 863-864.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court reconsidered Black I in light of Cunningham and held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, 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.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
When Judge Person originally sentenced Gonzalez, he imposed the upper term for the felon in possession of a firearm conviction. At that original sentencing hearing, Judge Person noted various aggravating factors: “The evidence established beyond any reasonable doubt that the defendant, armed with an assault-type Armalite rifle ventured into an area known to be rival gang territory, just 11 days after being paroled from the state prison for a felony conviction for possession of an assault weapon.” This finding, highlighting Gonzalez’s recidivism, was sufficient to render him eligible for the upper term under Black II, supra, 41 Cal.4th at pp. 818, 819 (“the right to a jury trial does not apply to the fact of a prior conviction,” an exception which “include[s] 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”); see People v. Velasquez (2007) 152 Cal.App.4th 1503, 1515 [trial court’s finding defendant had served prior prison term was directly related to defendant’s recidivism as that term has been construed by California appellate courts]; People v. Yim (2007) 152 Cal.App.4th 366, 370-371 [trial court’s finding defendant had been on parole when current offense committed related to defendant’s recidivism and was sufficient reason for imposing upper term].)
Currently pending before the California Supreme Court, in People v. Towne, review granted July 14, 2004, S125677, is the issue of whether a trial judge may sentence a defendant to an upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory.
Contrary to Gonzalez’s argument, the imposition of a consecutive term for the second murder conviction did not implicate the Sixth Amendment. “Cunningham . . . does not undermine our previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights.” (People v. Black, supra, 41 Cal.4th at p. 821.) Gonzalez argues Black II was wrongly decided. However, as he acknowledges, that ruling is binding upon this court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Thus, there was no Cunningham error.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J., ALDRICH, J.