Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA74963, Charles D. Sheldon, Judge.
Gloria C. Cohen, 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, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Robert Lee Kirkwood (defendant) of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), possession of ammunition (§ 12316, subd. (b)(1)), and discharge of a firearm with gross negligence (§ 246.3, subd. (a)). The jury found true the allegation that defendant personally used a firearm within the meaning of sections 667.5, subdivision (c), 1192.7, subdivision (c), and 12022.5. Defendant admitted suffering three prior convictions that were variously alleged in the information under sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (the Three Strikes law); section 667, subdivision (a)(1); and section 667.5, subdivision (b). The trial court, as least as reflected in the minute order and abstract of judgment, sentenced defendant to state prison for a total term of 15 years as follows: the middle term of three years doubled to six years under the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) for defendant’s assault with a firearm (§ 245, subd. (a)(2)) conviction, the middle term of four years for personally using a firearm (§ 12022.5), and five one-year terms under section 667.5, subdivision (b).
All statutory citations are to the Penal Code unless otherwise noted.
We appointed counsel to represent defendant in this appeal. After examining the record, counsel filed an opening brief asking this court to independently review the record in accordance with People v. Wende (1979) 25 Cal.3d 436. On June 24, 2008, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Defendant did not submit a brief or letter.
After independently reviewing the record, we asked the parties to submit letter briefs addressing whether the trial court erred in failing to instruct the jury on the sentence enhancement for personally using a firearm under section 12022.5, and whether there was sentencing error or clerical error with respect to defendant’s prior convictions that were alleged in the information under sections 667, subdivision (a) and 667.5, subdivision (b) and admitted by defendant. We remand for resentencing with respect to defendant’s prior convictions under sections 667, subdivision (a) and 667.5, subdivision (b), and otherwise affirm the judgment.
BACKGROUND
About 7:00 p.m. on July 12, 2007, Donna Hamilton was near the intersection of 10th Street and Lime Avenue in Long Beach with her daughters, Tomira Oden and LaDonna Pelts, her niece, Quaneishia Wells, and her daughter’s friend, Zainab Dyfan. At some point, defendant, Oden’s former boyfriend, approached. Oden had last seen defendant in March 2007 when they had broken up. Oden spoke with and walked away with defendant. Oden and defendant argued about their break-up. At some point, Oden turned around and was crying.
Hamilton was upset that Oden was crying. Hamilton approached Oden and defendant to find out what was wrong. Hamilton inquired of her daughter, “why the fuck are you crying?” Hamilton then inquired of defendant, “What the fuck are you doing to my daughter? Why is my daughter crying?” Defendant responded, “Damn, ain’t your daughter grown?” Hamilton responded that if Oden was grown, then defendant should allow Oden to make her own decision and leave. Defendant told Hamilton to mind her own business.
Hamilton, who had been drinking that night, testified that she picked a flimsy, little, plastic stick about three feet long out of a nearby trashcan and struck defendant across the shoulder with it. Hamilton testified that she hit defendant two or three times and that she could not remember if she hit him on the head. Defendant pulled a gun and pointed it at Hamilton. Hamilton heard a shot and felt something go across her hair.
Oden testified that the stick Hamilton struck defendant with was solid, about two-and-half feet long, and looked like a stick from a bathroom plunger. Oden testified that Hamilton swung the stick at defendant’s head and struck him more than five times. Oden asked Hamilton to stop hitting defendant, but Hamilton continued.
Hamilton and defendant resumed their argument. Hamilton told defendant that if he was going to shoot and kill her that he should get it over with. Hamilton heard a second shot go by her ear. Pelts testified that she saw defendant fire two shots at Hamilton. Defendant and Oden left.
Appellant subsequently was arrested near 12th Street and Long Beach Boulevard. Defendant was advised of his Miranda rights. Defendant told City of Long Beach Police Officer Juan Avila that he had seen a former girlfriend and began walking with her when a confrontation between his former girlfriend and her mother ensued. Defendant told the officer that his girlfriend’s mother hit him twice with a stick – on the head and on the back. Defendant denied being in pain or suffering any injuries, telling the officer that the stick had no weight and so did not hurt him. Defendant could not remember whether he had a gun or who had a gun because he had been drinking all day. Defendant did not appear to the officer to be drunk.
Miranda v. Arizona (1966) 384 U.S. 436.
Oden also was taken into custody and advised of her Miranda rights. Oden told City of Long Beach Police Officer Jeannie Villanueva that her mother did not like her seeing her boyfriend. Officer Villanueva testified that Oden told her that defendant had wanted to see her and that her mother came up behind them as they walked together and hit defendant with a pipe. Oden told the officer that defendant then pulled out a gun and fired one shot into the air. Defendant ran and Oden joined him.
A firearm was recovered from the crawl space of a house near 12th and Long Beach Boulevard. The gun held a total of 11 bullets – one in the chamber and 10 in the magazine. There were 10 bullets in the gun when it was recovered – one in the chamber and nine in the magazine. City of Long Beach Police Department criminalist Troy Ward opined that a bullet shell casing that was found at the crime scene had been fired through the gun that was retrieved from the crawl space near 12th and Long Beach Boulevard.
In closing argument, defense counsel argued to the jury that the evidence showed that defendant fired the gun in self-defense. Defense counsel argued that defendant fired a single shot into the air to tell Hamilton to retreat.
DISCUSSION
I. CALJIC No. 17.19
The parties agree that although the trial court erred in failing to instruct the jury with CALJIC No. 17.19 on the elements of the sentence enhancement for personally using a firearm (§ 12022.5, subd. (a)), the error was harmless. The parties’ agreement is well-taken. Defendant relied on a self-defense theory, in which defense counsel conceded in closing argument that the evidence demonstrated that defendant fired the gun; the jury found that defendant assaulted Hamilton with a firearm. (People v. Scott (2001) 91 Cal.App.4th 1197, 1211 [finding harmless error, the court of appeal held that where a defendant’s defense is that he fired a handgun in self-defense, “his assault with a firearm conviction necessarily included a finding of firearm use as defined by section 12022.5”].)
II. Section 667, Subdivision (a) and 667.5, Subdivision (b) Sentence Enhancements
The information alleged that defendant suffered two prior convictions within the meaning of section 667, subdivision (a) and the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). The first such alleged prior conviction was a May 29, 1990 attempted murder conviction (§§ 664/187) in case number TA002602. The second such alleged prior conviction was a January 14, 2005 conviction for violating section 245, subdivision (a)(1) (assault with deadly weapon or force likely to produce great bodily injury) in case number NA063636. The information did not specify the nature of the section 245, subdivision (a)(1) conviction. The prosecutor subsequently conceded that the section 245, subdivision (a)(1) conviction was not a “strike” conviction and that the People were no longer alleging it as a strike. The information also alleged that defendant suffered three prior convictions and served three prison terms within the meaning of section 667.5, subdivision (b): the 1990 conviction in case number TA002602, the 2005 conviction in case number NA063636, and two convictions on April 15, 1999 in case number NA039191 for possession of rock cocaine for purposes of sales (Health & Saf. Code, § 11351.5) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)).
Because the section 245, subdivision (a)(1) conviction was not a “strike” conviction, it also would not be a qualifying prior serious felony conviction for purposes of section 667, subdivision (a)(1). (§ 667, subds. (a)(1)(4) and (d)(1).)
Trial on the issue of defendant’s prior convictions, for sentence enhancement purposes, was bifurcated. Prior to the jury’s verdict, defendant admitted that he suffered the convictions in case numbers TA002602, NA063636, and NA039191, and defense counsel stated his hope that he could “make some arguments at the sentencing hearing” as to whether any of the prior felonies fell within the meaning of section 667, subdivision (a)(1) or section 667.5, subdivision (b). Defense counsel made no such argument at the sentencing hearing.
At defendant’s sentencing hearing, the prosecutor argued that defendant had suffered one prior conviction within the meaning of the Three Strikes law and section 667, subdivision (a)(1), and three prior convictions within the meaning of section 667.5, subdivision (b). In sentencing defendant, the trial court sentenced defendant, in part, to a six year term for his assault with a firearm conviction (§ 245, subd. (a)(2)) and a consecutive four year term for defendant’s use of a firearm in the commission of that offense (§ 12022.5, subds. (a)-(d)). The trial court then stated that defendant “has a 667.5(b), mandatory sentence, which I would give in any event mandatory or not. That adds five.” The trial court appears to have misspoken and to have intended to sentence defendant to the mandatory five year sentence enhancement under section 667, subdivision (a)(1). The trial court then incorrectly (based on the component parts of defendant’s sentence as orally recited by the trial court) stated that defendant’s total term in prison is 13 years rather than 15 years. A 13 year term could only have been arrived at if the trial court had sentenced defendant to three consecutive one year terms for the three section 667.5, subdivision (b) enhancements and improperly struck the section 667, subdivision (a)(1) enhancement. If, however, as it appears, the trial court intended to sentence defendant under section 667, subdivision (a)(1), the trial court failed to make any ruling with respect to defendant’s admitted three convictions and prison terms within the meaning of 667.5, subdivision (b).
The minute order for defendant’s sentencing hearing and the abstract of judgment correctly (based on the component parts of defendant’s sentence as orally recited by the trial court) reflect that defendant was sentenced to 15 years in prison. The minute order and abstract also reflect that defendant was sentenced to five years under section 667.5, subdivision (b) (the abstract of judgment lists five separate one year sentences under section 667.5, subdivision (b)) and make no reference to section 667, subdivision (a)(1). The aggregate five year sentence under section 667.5, subdivision (b) is incorrect because the information alleged, and defendant admitted, only three prior qualifying convictions under section 667.5, subdivision (b).
In his letter brief to this court, defendant implicitly acknowledges the errors by the trial court and/or the trial court’s clerk and suggests that we should strike the five one-year sentence enhancements under section 667.5, subdivision (b) reflected on the abstract of judgment and impose the five-year enhancement under section 667, subdivision (a). Respondent contends that the record is so confused as to this aspect of defendant’s sentence that we should remand for resentencing. We agree with respondent and remand this case for resentencing with respect to the section 667, subdivision (a) and 667.5, subdivision (b) sentence enhancements for defendant’s admitted prior convictions in case numbers TA002602, NA063636, and NA039191.
We have otherwise examined the entire record and are satisfied that defendant’s attorney has fully complied with her responsibility and that no other arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
We remand to the trial court for resentencing with respect to the section 667, subdivision (a) and 667.5, subdivision (b) sentence enhancements for defendant’s admitted prior convictions in case numbers TA002602, NA063636, and NA039191. The judgment is otherwise affirmed.
We concur: TURNER, P. J., KRIEGLER, J.