Opinion
H045366
12-04-2019
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS160509)
A young woman named Abigail died after being shot in the head at close range by a person who had broken into her home and waited for her to return. Her boyfriend, defendant Ernesto Hernandez, was convicted by a jury of residential burglary and first degree murder with a special circumstance (lying in wait) related to her death.
On appeal after he was sentenced to life imprisonment without the possibility of parole, defendant argues the trial court erred by admitting two hearsay statements: the victim's statement to her sister the morning of the homicide that she intended to break up with defendant that day, and the victim's and defendant's then-two-year-old son's assertive conduct shortly after the homicide of pointing to the victim's house when asked where his father was. We conclude that any evidentiary error was harmless.
The prosecution complains the trial court erred by not imposing what was at the time a mandatory sentencing enhancement. Although we recognize that correcting the error will have no practical effect on a sentence of life without the possibility of parole, we must reverse the judgment and remand the matter to allow the trial court to determine whether to impose the now discretionary sentencing enhancement.
I. TRIAL COURT PROCEEDINGS
Defendant was charged by information with first degree murder (Pen. Code, § 187, subd. (a)) with allegations that he personally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)) and committed the murder while lying in wait (Pen. Code, § 190.2, subd. (a)(15); unspecified references are to this Code). He was also charged with first degree burglary (§ 459) with an allegation that he personally used a firearm (§ 12022.5, subd. (a)). As to both counts, the information alleged defendant had suffered two prior strike convictions (§ 1170.12, subd. (c)).
A. TRIAL EVIDENCE
Abigail's sister Aime testified about her interactions with Abigail on the day of the homicide in late March 2016. (For the sake of clarity in light of common surnames, and meaning no disrespect, we refer to members of the victim's and defendant's families by their first names.) Aime lived about a five-minute drive (or seven-minute walk) from Abigail's house in Greenfield. Abigail lived with her daughter (four years old at the time) and son (two years old at the time). Defendant was the boy's father. (The daughter's father testified at trial that he and Abigail were no longer dating at the time of the homicide, but that they had had sex about three weeks before she was killed.)
Aime went to Abigail's house around 8:00 on the morning of the homicide. Abigail and the children were still asleep, but woke up when Aime arrived. Aime and her sister argued that morning about defendant. Aime testified that Abigail told her she was planning to break up with him that day because "he was too much." Aime eventually returned home.
Aime testified that Abigail and the children arrived at her house unexpectedly later that morning. Abigail appeared "freaked out" and "panicked out." She "kept pointing at the side door telling [Aime] 'Look, he's there. The motherfucker's right there. He's following me.' " Aime testified that Abigail was referring to defendant, and directed Aime's attention to a black car Aime did not recognize. The black car eventually drove away, and Aime drove with Abigail and the children to buy lunch in Soledad. They returned to Aime's house to eat, and after lunch Abigail took her son home.
The tenant who lived in the unit behind Abigail's house testified that after noon on the day of the homicide he was home and heard what sounded like gun shots. He went outside and saw Abigail's son crying and screaming. Aime arrived at the house a short time later with Abigail's daughter; Aime testified she decided to check on her sister because she had a bad feeling about 20 minutes after Abigail left Aime's house.
Aime left the children with the tenant and went to investigate Abigail's house. The front door was locked, but the side door was open. She took a few steps inside and saw Abigail's body on the floor in a pool of blood. Aime left the house and called 911. While waiting for the police, she asked Abigail's son " 'Where's Papi[?]' " (referring to defendant), and the son pointed at Abigail's house. Defendant became the prime suspect after the police interviewed Aime.
The coroner, a forensic pathologist, testified that Abigail had been shot in the head seven times. All shots were fired from a fairly close range, and some were accompanied by stippling (dot-like abrasions) suggesting a range of one to one-and-one-half feet. The coroner opined Abigail died within seconds of being shot. The crime scene investigator who processed the scene testified that Abigail's purse "appeared to be intact with money in plain view," and it "did not appear to be a robbery or burglary."
The prosecution used several types of circumstantial evidence to support its theory that defendant murdered Abigail and fled to Mexico via Texas. A prosecution expert in cell phone data interpretation testified about the movements of a cell phone associated with defendant. He explained that cell phone tower information could be used to estimate the general location of a phone at a given point in time. Multiple outgoing calls from defendant's cell phone were made to Abigail's phone around 9:00 on the morning of the homicide; defendant's phone was near Soledad at the time. About eight minutes later defendant's cell phone was used to call Abigail's phone again, and this time defendant's phone appeared to be moving toward Greenfield. After that call, defendant's cell phone records did not show any activity until after the homicide.
Law enforcement gathered surveillance footage from the home security systems of several residences with views of Abigail's and Aime's houses, which were admitted into evidence and played for the jury with narrative descriptions by various witnesses. A video of the front of Abigail's house showed what appeared to be a black Volkswagen Jetta pulling into Abigail's driveway shortly after the time of the last call from defendant's cell phone to Abigail. A Monterey County District Attorney's Office investigator testified that he believed the Jetta that was visible in several surveillance videos was the same as defendant's Jetta that was recovered later, based on "the spokes in the vehicle, the coloration of the tinted windows, and, when visible, the dealer sticker in the lower right-front corner of the windshield."
Surveillance video showed a person approached the Jetta's driver's door and appeared to be talking with the driver (no audio was available) for at least five minutes. The tenant who lived behind Abigail testified that he remembered seeing Abigail speaking to someone who was parked in a black car in the driveway on the morning of the homicide; they were speaking English and the tenant spoke only Spanish, but he recalled that Abigail "sounded [] scared." The Jetta and Abigail's car both pulled out of the driveway just after 9:30 that morning, and the video showed the Jetta following Abigail's car around the neighborhood until around 11:00 a.m. At one point, both cars parked near Abigail's house and the driver of the Jetta walked to the driver's door of Abigail's car. A witness described the Jetta driver as wearing "a light-colored hoodie, with a longer, like, white T underneath that hung out and dark-colored pants." Just after 11:00 a.m. the two cars were visible in a surveillance video of the same street as Aime's house. That timing was consistent with Aime's testimony about Abigail arriving at her house "freaked out" and pointing to what Abigail said was defendant sitting in his car. Surveillance footage showed the black Jetta stopped in the street near Aime's house for over 15 minutes before driving away. A witness described the Jetta as not "close to the curb but [also] it's not out in the middle of the street."
Surveillance footage showed the Jetta passing in front of both Aime's and Abigail's houses shortly after noon during the time period when the women were getting lunch in Soledad. A few minutes after the Jetta's last pass in front of Abigail's house, a video showed someone walk up to Abigail's house. The person was wearing a "[l]ight-colored top and darker pants," and entered Abigail's house through the side door. About 10 minutes later Abigail's car pulled into the driveway. An adult and a child got out of the car and walked into the house using the same side door as the earlier individual. Less than a minute after the adult and child entered the house, the person with a "light-colored sweatshirt and dark pants" was seen "running from the house and leaving the door open behind him."
The cell phone data expert testified that a few minutes after the individual left Abigail's house, defendant's cell phone became active with outgoing calls to his brother Abel. The calls were made through towers located in Greenfield, and the expert estimated the phone was within one-half mile of Abigail's house when the calls were placed. Just under an hour later defendant's phone had moved to "somewhere between Greenfield and Soledad." Abel's and defendant's phones exchanged more calls that afternoon. Based on the information that had been provided to him, the expert opined that the volume of calls to Abel was unusually high from defendant's phone. He noted that defendant's phone never attempted to contact Abigail again after the homicide, which was also unusual because she had been his most frequent contact until that point.
Additional cell tower data indicated that defendant's phone was traveling south, with a call around 3:20 p.m. connecting through a tower in Paso Robles. Multiple pieces of evidence strongly supported a finding that defendant was in Los Angeles at a Greyhound station by 8:45 that evening. His cell phone data showed the phone was near that station. Surveillance video from the station showed a person whose clothing was similar to that seen in the videos from Greenfield. The same person is shown purchasing a bus ticket in defendant's name. The individual then boarded a bus leaving Los Angeles just before midnight. Other evidence (in the form of surveillance footage at the Greyhound station's parking lot and testimony from Abel's girlfriend) showed that members of defendant's family retrieved defendant's Jetta from the Los Angeles Greyhound station parking lot later that night.
The cell phone expert testified that data showed defendant's cell phone moving east until it arrived in McAllen, Texas a couple of days later. Once in McAllen, defendant's cell phone became inactive. Surveillance footage showed a person in a gray hoodie sweatshirt getting off a bus at the McAllen Greyhound station. Based on a phone number written on a piece of paper discovered during a parole search of Abel's residence, law enforcement retrieved surveillance footage from a cellphone store in McAllen where that number had been activated the same morning the person in the gray hoodie got off the bus. The footage showed a person in a gray hoodie purchasing a phone. The expert testified that the new phone was active for a time and then stopped. The expert believed that was because defendant had entered Mexico, at which point the phone would have started using cell towers maintained by Mexican telecom companies whose data he did not possess.
A police officer testified that he found defendant's black Jetta two weeks after the homicide while on patrol in Greenfield. The criminalist who processed the car after it was impounded testified that there were no blood stains or other biological material visible in the car. The criminalist found a styrofoam ammunition tray under the front passenger seat. A Monterey County District Attorney's Office investigator testified that he tested the tray with different calibers of bullets and that the tray appeared to be designed for .32-caliber handgun ammunition. That was the same caliber as the bullets used to kill Abigail. The parties stipulated that the "Mexican government deported the defendant from Mexico and returned him to Los Angeles International Airport on April 19, 2016."
B. VERDICTS AND SENTENCING
The jury found defendant guilty as charged on all counts and enhancements other than the prior strike allegations, which the trial court found true following a separate court trial. Defendant was sentenced to life without the possibility of parole for first degree murder with a special circumstance (lying in wait). The trial court did not impose a then-mandatory sentence for the section 12022.53 firearm enhancement the jury found true related to the murder count, and the enhancement is not referenced in the enhancements section of the abstract of judgment. (§ 12022.53, subd. (d).) An indeterminate term of 35 years to life (§§ 667, subd. (e)(2)(A)(ii); 12022.5, subd. (a)) was imposed and stayed (§ 654) for first degree burglary with two prior strikes.
II. DISCUSSION
Defendant asserts two evidentiary errors: admitting Abigail's hearsay statement to Aime on the day of the homicide that she intended to break up with defendant that day; and allowing Aime to testify that Abigail's son pointed to Abigail's house when asked shortly after the homicide where his father was. Defendant argues those errors were prejudicial standing alone or cumulatively.
A. ABIGAIL'S STATEMENT TO AIME
We observe that although defendant's argument heading refers to a violation of his "federal rights," the body of his argument on this point discusses only state law error. We therefore analyze only the latter. (Capitalization omitted.)
The trial court conducted an Evidence Code section 402 hearing on the prosecution's request to admit testimony from Aime about Abigail's stated intent to break up with defendant. The prosecutor argued the statement of future intent (and Abigail's related hearsay statement that defendant was "too much") were not being offered for the truth, "just for what was her -- what plans did she have on that day and that that might be circumstantial evidence that she may, in fact, have done exactly what she said she was going to do." The defense argued the statement was irrelevant, prejudicial, and speculative. The court concluded it would "admit the statement not for the truth of the matter asserted, and I will articulate to the jury at the time the statement is introduced that it is not being admitted for the truth of the matters asserted."
At trial Aime testified that in the morning on the day of the homicide, Abigail told her she was planning to break up with defendant that day because "he was too much." The court immediately admonished the jury that the "statement made by the victim that it was her intention to break up with [defendant] is a hearsay statement. It is not being offered for the truth of the matter asserted. It is simply being offered for the fact it was stated by the victim and to show what she intended to do in the future." The court gave a similar admonition in its instructions to the jury before deliberations: "There was testimony regarding a hearsay statement. Specifically, Aime ... testified that Abigail told her on the morning of March 29, 2016 that Abigail intended on breaking up with [defendant] that day because he was too much. Abigail stated that she was not intending on going back to [her daughter's father], but just going to break up with [defendant]. [¶] There was a stipulation that prior to March 29, 2016, Abigail told her sister Aime that she intended on spending the day (March 29, 2016) with [defendant]. [¶] Those statements and the stipulation were not admitted for the truth of the matters asserted but can be used as evidence about what Abigail's thoughts or plans might have been."
1. The Statement Was Inadmissible
Evidence Code section 1250 provides a hearsay exception for a "statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health)" when "offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action." Evidence admitted under that section is hearsay, but it is admissible as a description of the declarant's "mental or physical condition, intent, plan, or motive" so long as the declarant's state of mind is at issue. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389 (Ortiz).) Alternatively, "a statement which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind, is not hearsay." (Ibid.) It is admissible not "for the truth of the matter stated, but rather whether the statement is true or not, the fact such statement was made is relevant to a determination of the declarant's state of mind." (Ibid.) There too, the declarant's state of mind must be in issue. (Ibid.) "[E]vidence of the decedent's state of mind, offered under Evidence Code section 1250, can be relevant to a defendant's motive—but only if there is independent, admissible evidence that the defendant was aware of the decedent's state of mind before the crime and may have been motivated by it." (People v. Riccardi (2012) 54 Cal.4th 758, 820 (Riccardi), abrogated on another ground by People v. Rangel (2016) 62 Cal.4th 1192.) We review a trial court's admission of evidence for abuse of discretion. (People v. Clark (2016) 63 Cal.4th 522, 590.)
The trial court told the jury Abigail's statement was admitted not for its truth, but rather "to show what she intended to do in the future." The only relevant purpose for a statement of Abigail's intention to break up with defendant was to establish defendant's motive to kill her; Abigail's state of mind was not otherwise in issue. Because there was no independent evidence showing that defendant was aware of Abigail's stated intention, the statement was not admissible to establish motive. (See Riccardi, supra, at p. 820.) As the statement was not admissible to show motive and the Attorney General has not identified any other purpose for admitting the statement, the trial court erred by not excluding it.
2. The Error Was Harmless
As defendant acknowledges, "state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
Strong circumstantial evidence connected defendant to the homicide. A person in a car matching the description of defendant's car was seen on surveillance footage the day of the homicide interacting with Abigail and following her car around all morning. Admissible spontaneous statements from Abigail related through Aime identified defendant as the person who was driving the car that day. When she went to Aime's house the day of the homicide Abigail appeared "freaked out" and "panicked out," and told Aime that defendant was following her. She pointed at the car parked outside that matched the description of defendant's car. Surveillance footage showed that the driver of the car that matched the description of defendant's car was wearing a light-colored hoodie, with a "white T underneath that hung out and dark-colored pants." Later surveillance footage showed a person in a light-colored hoodie approach Abigail's house on foot, enter it shortly before the homicide, and flee the house immediately afterward. The evidence showed that the person who killed Abigail fled without stealing her purse that had money in plain view, suggesting that this was a targeted killing as opposed to a burglary gone awry. Surveillance footage at the Los Angeles Greyhound station that night showed a person in a similar hoodie purchasing a ticket in defendant's name. Cell phone evidence demonstrated that defendant's phone was near Abigail's house at the time of the homicide, and near the Greyhound station when the ticket was purchased in defendant's name. An ammunition container found in defendant's car appeared to match the caliber of ammunition used to kill Abigail. And evidence supported a finding that defendant fled town (and eventually the country) immediately after the killing, indicating consciousness of guilt. (People v. Powell (2018) 6 Cal.5th 136, 169 [flight may support an inference of consciousness of guilt].) In light of the foregoing, defendant has not shown it is reasonably probable he would have achieved a more favorable result had the trial court excluded Abigail's statement.
Defendant contends the error was prejudicial because it was the only evidence of motive, and because the prosecutor mentioned the hearsay statement in closing argument. But even assuming the jury used the evidence for the truth of the matter asserted—i.e., as evidence Abigail actually expressed an intent to break up with defendant to him—that evidence carried a relatively low risk of unfair prejudice and was cumulative of other admissible evidence showing that defendant followed Abigail around the neighborhood throughout the morning on the day of the homicide, not to mention Abigail's statements to Aime that she was afraid of defendant. Defendant has failed to demonstrate prejudice.
B. ABIGAIL'S SON'S POINTING GESTURE
The trial court conducted an Evidence Code section 402 hearing on the prosecution's request to admit testimony from Aime about the son's pointing at Abigail's house when she asked him where his father was shortly after the homicide. Aime testified that when she arrived at Abigail's house to check on Abigail, the two-year-old boy was with the tenant who lived behind Abigail. The boy was "not happy," and was jumping, running around, and screaming. She asked him in Spanish, "Where is your Papi?," and he pointed at Abigail's house. Defense counsel argued that the son's response did not meet the spontaneous statement hearsay exception because there was no evidence the son was even inside the house when the homicide took place (much less that he witnessed the killing), and that the son's assertive conduct was unreliable because "a two year old doesn't necessarily mean anything when they gesture." The trial court determined that the conduct was admissible, reasoning that as assertive conduct it was a statement and that there was adequate evidence to show the son was excited when he pointed at the house. The court continued: "I'm not convinced one way or another that there is evidence that the two year old saw anything involving the death of his mother. I'm not relying on that at all. I don't think it's necessary for that fact to be proven in order to have his statement qualify as an excited utterance."
Aime testified for the jury about the son's pointing consistent with her Evidence Code section 402 hearing testimony. The parties stipulated "that the victim Abigail's son was two years old at the time of this event and that, based on his age, he is not available for trial, and due to his age at the time of the event, pursuant to the Evidence Code, he is not competent to testify." But it does not appear the stipulation was ever read to the jury. In closing argument, the prosecutor noted that the "son pointing to Abigail's house when his Aunt [Aime] asks him where his dad is" was one of several facts that showed defendant killed Abigail. Defense counsel argued in response that the "pointing doesn't mean anything" other than "that a child is crying and is pointing."
Defendant argues on appeal that the error implicates both state law (as inadmissible hearsay) and the federal constitution (because it allegedly violated a fundamental right and thus denied him his due process right to a fair trial). Defendant's argument heading refers to the confrontation clause, but the body of his argument never discusses that theory.
1. The Trial Court Committed Harmless State Law Error
Evidence Code section 1240 provides an exception to the rule against hearsay for a statement that "(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." "Whether an out-of-court statement meets the statutory requirements for admission as a spontaneous statement is generally a question of fact for the trial court, the determination of which involves an exercise of the court's discretion. [Citation.] We will uphold the trial court's determination of facts when they are supported by substantial evidence and review for abuse of discretion its decision to admit evidence under the spontaneous statement exception." (People v. Merriman (2014) 60 Cal.4th 1, 65.)
Abigail's son's assertive conduct was a statement, such that Aime's relating of the son's conduct was hearsay. (See Evid. Code, § 225; People v. Jurado (2006) 38 Cal.4th 72, 129 [pointing is an example of assertive conduct meeting the definition of "statement"].) The son's conduct arguably meets the first element of the spontaneous statement exception because it described a condition perceived by the declarant: the location of his father inside the house. And it is undisputed that the son was under the stress or excitement of some event. But no evidence linked the son's excitement to the whereabouts of his father because the trial court found there was not enough evidence to determine whether the son "saw anything involving the death of his mother." As there was no evidence that the mere act of seeing his father would cause the excitement the son experienced, the statement was inadmissible.
We find the error harmless. Though the son's statement supported a finding identifying defendant as the perpetrator, the statement was of limited evidentiary weight given the declarant's extremely young age. Defense counsel effectively attacked the statement's weight in closing, arguing that "pointing doesn't mean anything. It doesn't conclude anything. You shouldn't conclude anything, and it doesn't prove anything beyond a reasonable doubt. It proves that a child is crying and is pointing." And as we have already discussed, strong circumstantial evidence independent from the son's pointing connected defendant to the homicide, including cell phone data, surveillance footage of a car matching defendant's car's description, and Abigail's statements to Aime that defendant had been stalking her. As defendant has not shown it is reasonably probable he would have achieved a more favorable result had the jury not heard testimony about Abigail's son's pointing, we conclude the error was not prejudicial.
2. Defendant Forfeited Any Due Process Argument
Defendant contends that he has a fundamental right under the United States Constitution to have hearsay statements of an incompetent child excluded and that the trial court's failure to exclude the statement violated that right. Defendant did not object on that ground in the trial court. As such, the argument is forfeited. (People v. Carter (2003) 30 Cal.4th 1166, 1201.) Even if the objection had been preserved, defendant's citations to Blackstone and out-of-state authorities do not demonstrate that the right he alleges is a " 'principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental.' " (Speiser v. Randall (1958) 357 U.S. 513, 523.) Few rights have been deemed fundamental by the United States Supreme Court, and those rights that have been deemed fundamental are of a different pedigree than the evidentiary issue defendant identifies. (E.g., In re Winship (1970) 397 U.S. 358, 364 [fundamental right to have criminal convictions proven beyond a reasonable doubt].) Indeed, it is telling that the more recent Supreme Court authorities defendant cites involved situations where the court found that the rights at issue were not fundamental. (E.g., Montana v. Egelhoff (1996) 518 U.S. 37, 42-44 (plur. opn. of Scalia, J.) [no fundamental right to have jury hear voluntary intoxication evidence as relevant to defeat mens rea].) That some California courts have admitted spontaneous statements by incompetent juvenile declarants demonstrates that there has not been the uniform and continuing acceptance of the rule that defendant asserts. (E.g., People v. Orduno (1978) 80 Cal.App.3d 738, 742 ["The hearsay statements of a child too young to testify are admissible if they are spontaneous declarations[.]" (Italics omitted.)].)
C. CUMULATIVE PREJUDICE
Defendant argues the evidentiary errors he identifies are cumulatively prejudicial. "Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (People v. Hill (1998) 17 Cal.4th 800, 844.) "Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Ibid.)
The two evidentiary errors we have discussed are not insignificant, and they potentially helped the prosecution prove defendant's identity as the shooter. But as we have also discussed, that evidence was cumulative of other strong circumstantial evidence related to identity, including: surveillance footage of a person in a car matching the description of defendant's car following and interacting with Abigail the day of the homicide; Abigail's admissible spontaneous statements to her sister that defendant was following her that day; surveillance video showing the driver of defendant's car wearing a light-colored hoodie; later footage of a person in a light-colored hoodie entering Abigail's house just before the homicide and fleeing just after; surveillance footage from the Los Angeles Greyhound station that evening showing a person in a similar hoodie purchase a ticket in defendant's name; testimony that defendant's brother drove to Los Angeles to pick up defendant's car from that station; and cell phone evidence suggesting defendant was near Abigail's house at the time of the homicide, and near the Greyhound station when the ticket was purchased in defendant's name. On this evidentiary record, the two errors defendant identifies did not cumulatively result in a miscarriage of justice.
D. SENTENCING ON THE FIREARM ENHANCEMENT
The People argue that the judgment must be reversed and the case remanded to allow the trial court to determine whether to impose a sentencing enhancement under section 12022.53. Defendant argues the trial court imposed a concurrent term for the enhancement, and that the People forfeited the issue by failing to appeal.
At sentencing, the prosecutor recommended a sentence of life without parole for the murder count, "plus 25 years to life for the gun" enhancement. Defense counsel assented to life without parole, and requested that "everything else be run concurrent." The court stated that for "Count Number 1, felony violation of Penal Code Section 187(a), first degree premeditated murder, with the 12022.53(b) personal and intentional use of a firearm discharged causing death, as well as a special enhancement pursuant to 190.2(a)(15), lying in wait, the Court imposes the sentence of life without the possibility of parole." The abstract of judgment does not include a separate sentence for the section 12022.53 enhancement.
The People contend that by failing to impose the 25-years-to-life firearm enhancement, the trial court imposed an unauthorized sentence that need not be separately appealed. (§ 12022.53, subd. (d) [mandating a 25-years-to-life enhancement when a defendant is convicted of, among other things, first degree murder and the jury finds true an allegation that defendant personally discharged a firearm causing death].) Defendant counters that the trial court decided "to run the section 12022.53 enhancement concurrent" and that the People should have objected or appealed had they wished to challenge the sentence.
It does not appear from the record that the trial court imposed the enhancement and ordered it to run concurrent, and it is not referenced in the abstract of judgment. Even assuming the trial court had intended that the enhancement run concurrently, the sentence would have been unauthorized because when defendant committed the murder section 12022.53, subdivision (d) mandated "an additional and consecutive term of imprisonment in the state prison for 25 years to life." (Former § 12022.53, subd. (h); Stats. 2010, ch. 711, § 5, p. 4041.) As a mandatory consecutive enhancement, it could not have been run concurrently, so the sentence was unauthorized regardless. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 431-432 [failure to pronounce sentence on an enhancement results in an unauthorized sentence].)
The issue is properly raised here without a separate appeal because a "claim that a sentence is unauthorized ... may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court." (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) (The older Supreme Court authority cited by defendant, People v. Burke (1956) 47 Cal.2d 45, 52-53, disapproved on another ground by People v. Sidener (1962) 58 Cal.2d 645, 647, involved a discretionary enhancement, whereas at the time of sentencing here the court had no discretion to strike the section 12022.53 enhancement.)
As currently enacted, section 12022.53 gives a trial court discretion to strike or dismiss a firearm enhancement "in the interest of justice pursuant to Section 1385 and at the time of sentencing." (§ 12022.53, subd. (h).) By seeking a remand, the People acknowledge that defendant is entitled to the ameliorative benefit of that change in the law. (In re Estrada (1965) 63 Cal.2d 740.) We recognize that a remand to resolve the section 12022.53 enhancement issue will have no practical effect on the length of defendant's life-without-parole sentence. But our practical concern for judicial economy notwithstanding, remand is required because the trial court imposed an unauthorized sentence, and this court has no discretion to impose or strike the enhancement. We will therefore remand the matter to allow the trial court to determine whether the enhancement should be imposed.
III. DISPOSITION
The judgment is reversed and the matter is remanded for the limited purpose of allowing the trial court to exercise its discretion to determine whether to impose the Penal Code section 12022.53 firearm enhancement.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Mihara, Acting, P. J. /s/_________
Danner, J.