Opinion
E038862
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO VILLA HERNANDEZ et al., Defendants and Appellants.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant Armando Villa Hernandez. Robin Yanes for Defendant and Appellant Marco Santiago Zabala. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez, Supervising Deputy Attorney General, Angela M. Borzachillo, Deputy Attorney General, for Plaintiff and Respondent.
Defendants Armando Villa Hernandez and Marco Santiago Zabala (hereafter referred to individually by last name or collectively as defendants) contend that the trial court violated their rights under the confrontation clause of the federal Constitution by admitting evidence of out-of-court statements made by an unavailable witness. In addition, Hernandez asserts prosecutorial misconduct, and Zabala asserts sentencing error.
We affirm the convictions but remand for resentencing as to Zabala.
PROCEDURAL HISTORY
Defendants were charged with kidnapping Juan Rizo for the purpose of robbery or sexual assault (count 1; Pen. Code, § 209, subd. (b)(1)); robbery of Rizo (count 2; § 211) and dissuading a witness (Rizo) (count 3; § 136.1, subd. (c)(1)). They were also charged with carjacking and robbing Guillermo Solis (count 4; § 215, subd. (a) & count 5; § 211). The information alleged that all five counts were committed by both defendants for the benefit of or in association with a criminal street gang. As to counts 4 and 5, the information alleged that Zabala personally used a firearm (§§ 12022.53, subd. (b), 1192.7, subd. (c)), and that Hernandez was a principal in a crime in which a principal used a firearm (§ 12022.53, subds. (b) & (e)(1)). Finally, the information alleged that Hernandez had served a prior felony prison term within the meaning of section 667.5, subdivision (b).
All further statutory references will be to the Penal Code unless otherwise indicated.
The trial court granted a defense motion for acquittal on count 3 (dissuading a witness). The jury acquitted defendants on the charged offense in count 1 and deadlocked on the lesser included offense of simple kidnapping. It convicted Zabala on count 4 (carjacking) but acquitted Hernandez on that count. It found both defendants guilty on counts 2 and 5 (robbery). It found the gang allegation true as to both defendants on count 5, and true as to Zabala on count 4. The jury deadlocked as to the gang allegation on count 2. It found all firearm use allegations untrue. The court declared a mistrial as to count 1 and as to the gang enhancement on count 2. It later dismissed the gang enhancement on count 2 in the interest of justice. Nevertheless, Hernandez admitted the gang enhancement on count 2 in return for an agreement that the court would strike the prison prior, which he had also admitted.
The court sentenced Hernandez to a total term of 19 years four months and Zabala to a term of 15 years to life, plus 28 years. Each defendant filed a timely notice of appeal.
FACTS
On December 18, 2001, Guillermo Solis went to an AM/PM market (AM/PM) at an Arco gas station to buy snacks for his pregnant wife. He parked his car, a black Mitsubishi Gallant, near the pay phones and called his wife to find out exactly what snacks she wanted. He saw three men near the pay phones. One was Juan Rizo, one was Hernandez and the third, who walked away, was not identified. As Solis spoke to his wife, Hernandez walked up to him and asked for quarters. Solis said he didnt have any. Hernandez asked Solis where he was from. Solis replied that he was from Mexico. Hernandez told him not to play stupid. Hernandez then told Rizo to hurry up or his friend was going to get mad. Hernandez grabbed the phone from Rizo and hung it up.
Zabala walked up to Hernandez and told him to hurry up and start their car. Hernandez went to a blue Subaru parked near the gas pumps. Zabala then approached Solis and asked where he was from. Solis replied that he was from nowhere, that he didnt hang out with anyone. Zabala said that he was from "Norwalk." Solis was wearing a rubber glove. He had been changing the oil in his car when his wife had asked him to go buy her snacks, and he had inadvertently left it on. Zabala told Solis that "we use those gloves to shoot people." Solis became scared at that point. Zabala demanded Soliss wallet. When Solis backed away, Zabala grabbed him by the sweatshirt and pulled Solis toward him. He told Solis not to be stupid and pointed what Solis believed was a gun at Soliss stomach. He instructed Solis to give him his wallet if he didnt want to die. When Solis failed to hand over his wallet, Zabala searched his pockets, pulling his wallet from his back pocket and his car keys from his front pocket. He asked Solis if the Mitsubishi was his. Solis said it was. Zabala got into Soliss car and drove away. As he did so, he put his finger against his lips as if to warn Solis not to say anything. Zabala and Hernandez, who was driving the blue Subaru, exited the gas station at the same time.
Rizo had been standing by the phones the entire time. He did not participate in the encounter between Solis and Hernandez and Zabala. After defendants drove off, Solis approached him and asked him what was going on. Rizo said he had also been a victim. Solis asked if he knew the defendants. Rizo responded that he did not, but that they had picked him up as he was walking, drove him to a dark place and took his chain and boots. They told him to call his family to bring money or they would kill him. Solis noticed that Rizo was wearing only socks on his feet. Solis went inside the store and called the police, who arrived within a few minutes.
In response to the dispatch about the carjacking, Deputy Rowe drove toward AM/PM. When he was less than a mile from the market, he saw a black Mitsubishi and a blue Subaru "extremely close" and driving very fast. He followed the cars until both pulled into the driveway of a house about three miles from the market. Hernandez, who was driving the blue Subaru, ran into the backyard. Zabala got out of the Mitsubishi and walked toward the front door of the house. Zabala was detained and placed into a patrol car after other deputies arrived. Hernandez was found hiding in a dog house in the backyard. A deputy found car keys in the dog house and two chains on the fence nearby. A boot and a belt were found in the trunk of the Subaru.
Deputy Clear was dispatched from the house to AM/PM to speak to Rizo and bring him back to the house to identify defendants. Rizo spoke little English, and Deputy Clear is a certified bilingual officer. When Deputy Clear arrived at AM/PM, he observed that Rizo was "shocked," "shaken," "frightened" and "upset." Rizo told him that the two men forced him into a car on Elm Street, drove a long way, took his jewelry and boots and instructed him to get money from his family or they would kill him. Deputy Clear then took Rizo to the house where defendants were being detained. He gave him the standard field identification admonition. Rizo identified defendants as the men who kidnapped and robbed him. Solis also identified them. He also identified his car and his other stolen possessions.
Rizo did not testify, and the record contains no further information concerning the crimes committed against him.
As Zabala was removed from the patrol car for the field identification procedure, Soliss car keys fell out of his pocket. Deputies also found a gold-colored ring with a blue stone on Zabala. A wallet that was found in the console of the Subaru was released to Solis, and a boot, a belt and a ring were released to Rizo.
Defendants admitted to a classification officer at the jail that they were affiliated with the Norwalk One Ways gang. A gang expert opined that defendants were members of the Varrio Norwalk gang, a criminal street gang. He opined that the crimes against Solis and Rizo were committed for the benefit of the gang.
DISCUSSION
CRAWFORD ERROR
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Both defendants contend that the trial court violated their rights under the federal confrontation clause when it permitted the use of out-of-court statements made by Juan Rizo, the alleged victim in counts 1, 2 and 3, to Deputy Clear and to Guillermo Solis, the alleged victim in counts 4 and 5. Rizo did not testify at the trial. Defendants contend that Rizos statements were testimonial in nature, within the meaning of Crawford, supra, 541 U.S. 36 and Davis v. Washington (2006) ___ U.S. ___ (Davis).
Whether evidence was admitted in violation of the confrontation clause is subject to our independent review. (Lilly v. Virginia (1999) 527 U.S. 116, 137; United States v. Weiland (9th Cir. 2005) 420 F.3d 1062, 1076, fn. 11.)
In Crawford, the United States Supreme Court held that the use of out-of-court statements by a witness who is unavailable to testify at trial violates the confrontation clause of the Sixth Amendment, if the statements are testimonial in nature and the defendant did not have an opportunity to cross-examine the declarant. If the statements were testimonial, their exclusion is mandatory, even if they qualify for admission under a state-recognized hearsay exception. (Crawford, supra, 541 U.S. at pp. 53-54.) Here, because Rizo did not testify at the preliminary hearing or at trial, defendants had no opportunity to cross-examine him. The admissibility of his out-of-court statements thus depends upon their testimonial or nontestimonial character.
Zabala contends that the prosecution failed to prove that Rizo was unavailable as a witness or that he had a prior opportunity to cross-examine Rizo. However, neither defendant asserted below that Rizo could have been made available or sought a hearing to determine his availability. The issue cannot be raised for the first time on appeal. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)
In Crawford, the court offered little guidance as to what constitutes a testimonial statement. In Davis, supra, 126 S.Ct. 2266, however, the court explained that a statement is "nontestimonial when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." (Id. at p. 2273.) A statement is testimonial "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis, at pp. 2273-2274.) The court defined "interrogation" broadly, to include any questioning by law enforcement or emergency personnel, regardless of the formality or informality attending the questioning. (Id. at pp. 2276, 2278.) The court held that the threat of criminal prosecution for making a false statement to law enforcement officers "imports sufficient formality" to render testimonial any statement given during an interrogation "solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator." (Ibid.) Thus, statements given by a witness or victim at a crime scene as a result of "initial inquiries" are testimonial if they are "neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation," but instead consist of a description of past events which may constitute a crime. (Davis, at p. 2279.)
The court did not hold that in order to be testimonial, a statement must be the product of interrogation. Rather, the holdings in Davis and Hammon v. Indiana, which was consolidated for the opinion with Davis, referred specifically to interrogations because the statements in those cases were the products of interrogations. However, the court explained that it did not intend to imply that statements made in the absence of any interrogation are necessarily nontestimonial. (Davis, supra, 126 S.Ct. at p. 2274, fn. 1.)
Questions pertaining to when statements to law enforcement become testimonial are currently pending before the California Supreme Court in People v. Adams, review granted October 13, 2004, S127373; People v. Cage, review granted July 15, 2004, S127344; and People v. Ochoa, review granted November 17, 2004, S128417. The court recently requested supplemental briefing on the effect of Davis, supra, 126 S.Ct. 2266 on the specific issues presented in the cases before it. (People v. Cage, review granted July 15, 2004, S127344.)
Rizos statements to Deputy Clear were unquestionably testimonial. Clear initially responded to the residence where defendants were located and arrested. He was then dispatched to AM/PM to interview Rizo. When Clear arrived at AM/PM, the suspects were in custody, Rizo was in no danger, and there was no ongoing emergency. Clear asked Rizo to describe what had happened to him earlier in the evening, and then transported him to conduct a field identification of the suspects. All of the information Clear elicited from Rizo pertained to past events and to information needed to identify and convict the perpetrators. Thus, the admission of Clears testimony concerning Rizos statements violated the defendants rights under the confrontation clause. (Davis, supra, 126 S.Ct. at pp. 2276, 2278.)
Rizos statements to Solis, on the other hand, do not meet the Crawford and Davis criteria for testimonial statements. In Crawford, the court stated that the confrontation clause applies to witnesses, "in other words, those who `bear testimony. . . . `Testimony, in turn, is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. [Citation.]" (Crawford, supra, 541 U.S. at p. 51.) Thus, "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Ibid.) In Davis, the court stated that the foregoing limitation, "so clearly reflected in the text of the constitutional provision, must fairly be said to mark out not merely its `core, but its perimeter." (Davis,supra, 126 S.Ct. at p. 2274.) Thus, in order to be testimonial, a statement must be both "formal" and made to a governmental officer or one acting as the agent of a governmental officer.
The court expressly declined to decide "whether and when statements made to someone other than law enforcement personnel are `testimonial." (Davis, supra, 126 S.Ct. at p. 2274, fn. 2.) For purposes of that opinion, it assumed, but declined to decide, that acts of 911 operators are acts of the police when they conduct interrogations of 911 callers. (Ibid.)
Rizos statement to Solis was neither formal nor made to a governmental officer or agent. As noted above, the court held that with respect to a police interrogation conducted for the purpose of investigating a crime, the requirement of formality is met because a false statement to a police officer in the course of an investigation may result in criminal prosecution. (Davis,supra, 126 S.Ct. at pp. 2276, 2278.) Rizo, of course, did not risk prosecution if he lied to Solis. Nor, contrary to Hernandezs argument, was Solis acting as an agent of the police or of the prosecution. Hernandez contends that because Solis told Rizo what had happened to him and then asked what had happened to Rizo, Solis was a surrogate investigator for the police and the prosecution. He also argues that because Solis was a witness for the prosecution, Rizos statements to him were testimonial. It is clear that Solis was not acting as an agent of the police or the prosecution. The fact that Solis elicited information about the crime from Rizo does not elevate him to the status of an agent of the police or the prosecution, nor does the fact that he testified for the prosecution. Rather, as a fellow crime victim, Solis was more akin to an acquaintance. (Crawford, supra, 541 U.S. at p. 51; Davis, supra, at p. 2274.) Thus, the confrontation clause does not bar the use of Rizos statements to Solis.
Zabala also contends that the trial court erred when it ruled that Rizos statements to Solis were admissible under Evidence Code section 1240. That section provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (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." The key to admissibility under Evidence Code section 1240 is whether the statements were made under the stress of excitement and while the declarants reflective powers were in abeyance, i.e., before the declarant has had time to contrive and misrepresent. (People v. Poggi (1988) 45 Cal.3d 306, 318.) We review a trial courts determination that a statement is admissible pursuant to Evidence Code section 1240 for abuse of discretion. (People v. Poggi, supra, at pp. 318-319.)
Here, the court did not abuse its discretion. The evidence shows that Rizo spoke to Solis immediately after defendants robbed Solis and fled from AM/PM. When Deputy Clear arrived a few minutes later, Rizo still appeared to be frightened, shocked, shaken and upset by his own encounter with defendants. He told Clear the same thing he had told Solis — that defendants had taken him somewhere in a car, had threatened to kill him, and had taken his possessions. Thus, the evidence supports the conclusion that Rizos statements to both Solis and Clear occurred while he was still suffering the effects of the events and before he had time to contrive a story or misrepresent what had happened.
The erroneous admission of hearsay evidence in violation of the confrontation clause may be deemed harmless beyond a reasonable doubt if the evidence is cumulative of other evidence. (People v. Ledesma (2006) 39 Cal.4th 641, 708.) Here, both Deputy Clear and Solis testified that Rizo told them he was kidnapped, threatened with death and robbed of personal possessions, including his boots. Deputy Clear testified that Rizo identified both defendants in the field. Solis testified that Rizo told him that defendants, the two men who had just robbed Solis in Rizos presence, were the men who kidnapped and robbed him. In addition to recounting the same information that Rizo told Deputy Clear, Solis testified that he observed that Rizo was wearing only socks, no shoes. Corporal Scanlon testified that he found a boot in the trunk of the car Hernandez was driving immediately before he was apprehended. The boot was released to Rizo, as were other items. From this, jurors could infer that Rizo identified the boot as his. Because there was substantial inculpatory evidence independent of Deputy Clears testimony, and because the deputys testimony was cumulative, the error in admitting Rizos testimonial statements to Deputy Clear was harmless beyond a reasonable doubt.
PROSECUTORIAL MISCONDUCT (HERNANDEZ ONLY)
Hernandez argues that the prosecutor committed prejudicial misconduct when she elicited testimony from the jail classification officer that Hernandez was housed in a section where the jail houses inmates who have "prior prison time." For the reasons which follow, we conclude that Hernandez did not preserve any claim of error for appellate review.
The issue arose as follows. In order to establish Zabalas and Hernandezs gang affiliation, the prosecutor presented the testimony of the jail classification officer, Deputy Longoria. She asked Longoria if Hernandez was "housed in a special location based on his gang affiliation[.]" Longoria replied, "He was housed — thats correct. He was housed in a section of where we house our inmates that have prior prison time —." Counsel for Hernandez interrupted Longorias answer to object. The court immediately stated, "Objection is sustained [sic]. We dont want to talk about any of that. The portion about any prior incarceration is ordered stricken. The jury will disregard it." Defense counsel did not move for a mistrial or request any further admonition.
Counsel did not object to Longorias immediately preceding testimony that Hernandez told him he had done two "shoe [sic] terms" — presumably meaning SHU, or security housing unit, terms — for rioting.
In his opening brief, Hernandez asserted that the prosecutor intentionally elicited prejudicial testimony. In reply to the Attorney Generals response that there is absolutely no basis for concluding that the prosecutor acted intentionally, Hernandez asserted that even if Longorias testimony was not intentionally solicited by the prosecutor, it was nevertheless so prejudicial as to mandate reversal. However, the argument entirely misses a crucial point: Defense counsels objection was sustained, and the court immediately admonished the jury to disregard the testimony concerning prior incarcerations. Ordinarily, an admonition to the jury following a sustained objection to prosecutorial misconduct is deemed to cure any prejudice resulting from the misconduct. (People v. Sapp (2003) 31 Cal.4th 240, 305.) If the defendant believes that an admonition is not sufficient to cure any resulting prejudice, he may move for a mistrial. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1054.) Like any other remedy, however, a mistrial must be requested and denied in order to preserve any issue for appellate review. (People v. Hill (1992) 3 Cal.4th 959, 1000, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Thus, defense counsels failure to request "appropriate ameliorative action" beyond the admonition that was given waived appellate review. (People v. Hill, supra, at p. 1000.)
IMPOSITION OF SENTENCE ON COUNT 5 MUST BE STAYED AS TO ZABALA
Zabala contends that because the carjacking and robbery of Guillermo Solis, charged in counts 4 and 5, respectively, were part of a single transaction, sentence on count 5 must be stayed. He also contends that the sentence was improper in the absence of a jury finding that the two crimes did not comprise a single transaction.
Because Hernandez was found not guilty on count 4, this issue does not pertain to him.
Section 215 provides that a person may be charged with both carjacking in violation of that section and with robbery in violation of section 211. However, "no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211." (§ 215, subd. (c).)
"`When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals. [Citation.]" (People v. Ortega (1998) 19 Cal.4th 686, 699.) Therefore, under most circumstances, a robbery of a single victim, in which both an automobile and other personal property are taken by force or fear, constitutes a single offense, and the robber may be punished only once, even though he can be convicted of both robbery and carjacking. (People v. Dominguez (1995) 38 Cal.App.4th 410, 419-420.) If, however, the carjacking and the forcible theft of other personal property from the same victim are separated in time or separated by an independent criminal act, they may be deemed to be separate offenses subject to separate punishment. (People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.) Whether the offenses were incident to one objective or separate objectives is a factual question for the trial court. "`[T]here must be evidence to support a finding [that] the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.] [Citation.]" (People v. Coleman (1989) 48 Cal.3d 112, 162.) We review the trial courts findings in the light most favorable to the judgment and presume in support of the finding the existence of every fact the court could reasonably deduce from the evidence. If the courts findings are supported by substantial evidence, we must uphold them. (People v. Green, supra, at p. 1085.)
Here, the trial court found that the theft of Soliss wallet and the theft of his car were separate acts with separate objectives because Zabala took the wallet "while he was outside the car and . . . I think he was on the phone . . . [a]nd then he also took the car." The evidence does not support this conclusion. The record shows that Zabala demanded Soliss wallet. Solis began to back away, and Zabala grabbed him by his sweatshirt, pulled him close and put something which Solis believed to be a gun against Soliss stomach. Zabala told Solis not to do anything stupid, then searched his pockets and removed his wallet from his back pocket and his car keys from his front pocket. He asked Solis if the black Mitsubishi was his, and when Solis said it was, got into the car and drove away. As far as the record shows, the entire incident lasted only a few seconds or at most a minute or two, and there is no evidence which supports the conclusion that the acts of taking Soliss wallet and taking his keys and then his car involved separate objectives.
The Attorney General relies on People v. Green, supra, 50 Cal.App.4th 1076 to argue that this evidence shows two separate robberies. People v. Green is distinguishable, however. In that case, the defendant and a companion approached the victim in a garage and stole her purse at gunpoint. The defendant then asked the victim for her address. His companion fled, and the defendant kidnapped the victim in her car and sexually assaulted her. After the assault, he took the victims car. The Court of Appeal held that because "the carjacking was thus separated in time and place from the initial robbery of [the victims] purse and was interrupted by the sexual attack," the taking of the purse and the taking of the car were separate incidents which merited separate punishment. (Id. at p. 1085.) Here, in contrast, the entire incident lasted a matter of seconds, or at most a minute or two, and the theft of the wallet and of the car were not separated in time and place and were not divided by an intervening unrelated crime.
Section 186.22, subdivision (b)(4)(B) mandates a sentence of life imprisonment with a minimum parole eligibility period of 15 years for a conviction for carjacking committed for the benefit of a criminal street gang. Therefore, the lesser term imposed on count 5 (three years plus a 10-year enhancement pursuant to section 186.22, subd. (b)(1)(C)) must be stayed. (§ 654, subd. (a).) We will remand the cause for resentencing to allow the trial court to reconsider the sentence imposed on count 2 in light of our conclusion that the sentence on count 5 must be stayed.
We also direct the trial court to correct the erroneous notation, in the sentencing minutes and in Zabalas abstract of judgment, that the court imposed a 15-year enhancement on count 4, consecutive to the life term imposed on that count pursuant to section 186.22, subdivision (b). The courts oral pronouncement of sentence makes no reference to such an enhancement. Rather, when imposing sentence, the court stated, "[A]s to Count 4, [Zabala] is sentenced to life imprisonment, and he must serve 15 [years]. . . . [¶] . . . [¶] Thats what the gang enhancement means as to Count 4."
The courts oral pronouncement of sentence prevails over the minutes and the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The discrepancy between the courts oral pronouncement and the minutes and abstract constitutes a clerical error which this court can correct on its own motion. (Id. at pp. 185, 186-187.)
Moreover, the courts oral pronouncement was legally correct, while the sentence stated in the minutes and the abstract is unauthorized. As noted above, section 186.22, subdivision (b)(4)(B) mandates a sentence of life imprisonment with a minimum parole eligibility period of 15 years for a conviction for carjacking committed for the benefit of a criminal street gang. It does not provide for an additional, consecutive determinate term of 15 years. And, when subdivision (b)(4)(B) applies, no additional enhancement pursuant to section 186.22, subdivision (b)(1) may be imposed. Section 186.22, subdivision (b)(1) authorizes imposition of the enhancement provided for in that subdivision only "[e]xcept as provided in paragraphs (4) and (5)." (Italics added.) Thus, the enhancements provided in subdivision (b)(1) may not be imposed when subdivision (b)(4) applies instead. (People v. Johnson (2003) 109 Cal.App.4th 1230, 1236-1237.) Subdivision (b)(1) does not provide for a 15-year enhancement in any event.
Finally, we address Zabalas contention that the trial court may not impose consecutive sentences on counts 4 and 5 in the absence of a jury finding that the two crimes did not have separate objectives. Contrary to Zabalas contention, this issue was decided in People v. Black (2005) 35 Cal.4th 1238. In that case, the California Supreme Court held that a trial courts decision to impose consecutive or concurrent sentences under Californias determinate sentencing law does not implicate a defendants right to a jury trial. Therefore, the rules enunciated in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and United States v. Booker (2005) 543 U.S. 220 do not apply to require a jury finding as to the facts underlying the courts sentencing decision. (People v. Black,supra, at p. 1244.) The court went on to hold, "For purposes of the right to a jury trial, the decision whether section 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently. Both are sentencing decisions made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense, and neither implicates the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense." (People v. Black, supra, at p. 1264.) The validity of Californias sentencing scheme post-Blakely is currently under review by the United States Supreme Court in People v. Cunningham (Apr. 18, 2005, A103501) (nonpub. opn.), certiorari granted sub nom. Cunningham v. California (2006) ___ U.S. ___ [126 S.Ct. 1329, 164 L.Ed.2d 47]. Nevertheless, People v. Black, supra, is binding on this court.
DISPOSITION
The convictions are affirmed. As to Zabala, the cause is remanded for resentencing, with instructions to stay imposition of sentence on count 5 and to correct the abstract of judgment to delete the 15-year enhancement erroneously attached to count 4.
We concur:
Ramirez, P.J.
King, J.