Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. 06NF4409 Francisco P. Briseno, Judge. Affirmed in part, reversed in part, and remanded.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant was improperly sentenced after being convicted of attempted murder with a gang enhancement. While he asks us to modify the sentence directly, we conclude the proper procedure is to remand to the trial the court for resentencing. He further argues that as to the separate count of street terrorism, the sentence should have been stayed pursuant to Penal Code section 654 because his intent to commit attempted murder was inseparable from his motive to benefit or assist the gang, and we agree. We therefore remand the matter for resentencing.
Subsequent statutory references are to the Penal Code.
I
FACTS
Because of the limited issues on appeal, we provide only a brief overview of the facts. Defendant, his brother Danny, and Jesus Ramirez attended the same school. On December 13, 2006, Ramirez and several friends were “hanging around” after school. Defendant approached, and when he was about 30 feet away, he asked, “Who’s from Jeffrey?” Ramirez saw defendant holding something small and black, and told his friends that defendant had a gun. Ramirez and his friends fled, and Ramirez heard gunshots, then blacked out. He was treated for gunshot wounds that left him without vision in his right eye.
Ramirez later told the police that he had been shot by “Lazy, ” a La Colonia gang member with whom he went to school. Ramirez identified defendant from a photographic lineup.
Defendant was later arrested, and though he initially denied knowing Ramirez, he acknowledged they were in the same class. He thought Ramirez had bumped his shoulders on one occasion “out of disrespect.” Defendant eventually admitted to possessing and shooting the gun, though he claimed his memory of the incident was “a blur.” He denied being a member of the gang.
At trial, the prosecution presented evidence that La Colonia was a criminal street gang with the primary activities of vandalism, graffiti, auto theft, weapons possession, and drug sales. A gang expert, Deputy Sheriff Kevin Navarro, testified that defendant had been contacted several times in the company of La Colonia gang members, and that he had been required to register as a member. During a search of defendant’s home in 2005, several items and photographs relating to La Colonia were found. In Navarro’s opinion, Ramirez’s shooting benefitted La Colonia by creating respect and showing that the gang members were willing to commit violent acts.
Defendant was convicted of the attempted murder of Jesus Ramirez (§ 187, subd. (a), § 664, subd. (a), count one), and street terrorism (§ 186.22, subd. (a), count two). As to count one, the jury found it true that defendant committed the attempted murder for the benefit of a street gang (§ 186.22, subd. (b)(1)) and that he personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d).)
The court sentenced defendant to 40 years to life, which was comprised of a sentence of 15 years to life as to count one, and 25 years for the firearm enhancement on that count. The court struck the gang enhancement attached to count one. Defendant was sentenced to two years, to be served concurrently, on count two.
II
DISCUSSION
Sentence on Count One
Defendant argues that because the trial court struck the allegation that the crime was committed for the benefit of a gang, the only permissible sentence was life with the possibility of parole. Defendant cites section 664, subdivision (a), which requires a life sentence if the crime is a premeditated and deliberated attempted murder. Thus, with the firearm enhancement taken into account, defendant argues his sentence on count one should be 25 years to life rather than 40 years to life.
Had the court not stricken the gang finding, a sentence of 15 years to life would have been proper under section 186.22, subdivisions (b)(1) and (b)(5), which provides that anyone who commits a felony punishable by life in state prison may not be paroled for at least 15 years.
Respondent agrees that the sentence imposed on count one was improper, but argues that we should remand the matter for the trial court to reconsider the sentence on count one. Defendant argues that this court should impose the modification rather than permit resentencing, arguing that he may be subject to a longer sentence after remand, essentially penalizing him for his appeal.
Respondent has the better argument here. It was clearly the trial court’s intent to impose a sentence of 40 years to life. The court first imposed the sentence of 15 years to life on count one before striking the enhancement. Why the court struck the enhancement is unclear, and it may have been no more than an error, but when taken together, the court’s acts resulted in a sentence not authorized by statute, not merely a miscalculated one, as defendant claims. Indeed, as defendant points out, the sentence imposed contradicts section 664, subdivision (a).
Defendant asserts the court “merely erred in its computation when it stated that the resulting term would be a total of 40 years to life” but this is belied by the court’s explicit statement on the matter. Before denying defendant’s motion for new trial, the court noted that “when a young man like [defendant] gets convicted of an attempted 187 with premeditation and deliberation, and then the enhancement that goes with that is even greater than the crime itself, it’s 40 years to life.”
When the court makes an error as it did here, the proper procedure is to remand the matter to the court for resentencing to allow the court to properly exercise its sentencing choices in the first instance. (See, e.g., People v. Ramos (2004) 121 Cal.App.4th 1194, 1209.) If defendant is correct and if the court merely made a computational error, then he will have the benefit of the court’s clarification of the issue, but it is up to the trial court to clarify its intentions and fulfill its original sentencing objectives.
Defendant claims that he might be subjected to a “greater sentence” after his appeal, because the only way to sentence him to 40 years to life is to revive the gang allegation. But if the trial court declines to strike the gang allegation on remand, it does not follow that defendant is subject to a longer sentence, unless he is sentenced to more than 40 years. We do not find it likely that a longer sentence would result, but we concur with respondent that any sentence longer than 40 years to life on count one would be improper. (See People v. Hanson (2000) 23 Cal.4th 355, 359.)
Sentence on Count Two
Defendant next claims that sentence on count two should have been stayed pursuant to section 654, rather than the concurrent two-year sentence the court imposed. Whether section 654 applies is generally a question of fact. (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.) Thus, except in cases of “the applicability of the statute to conceded facts, ” (People v. Harrison (1989) 48 Cal.3d 321, 335) “the trial court’s finding will be upheld on appeal if it is supported by substantial evidence. [Citations.]” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583).
Section 654, subdivision (a) states: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 therefore bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11 (Neal); People v. Latimer (1993) 5 Cal.4th 1203 [reaffirming Neal].) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal, supra, 55 Cal.2d at p. 19, italics added.)
Relying on the Neal rule, several courts have considered the question of whether section 654 permitted separate punishment for a defendant convicted of street terrorism as well as one or more other felonies, and reached varying results based on the facts in each case. (See, e.g., People v. Mesa (2010) 186 Cal.App.4th 773, 781-786; People v. Vu (2006) 143 Cal.App.4th 1009, 1032-1034; People v. Ferraez (2003) 112 Cal.App.4th 925, 935; In re Jose P. (2003) 106 Cal.App.4th 458, 468-471; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466-1468.)
We asked for, and received from both parties, supplemental briefing on this issue in light of the conflicting authorities.
In People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315 (Sanchez), the court concluded that section 654 should apply when a defendant was convicted of both section 186.22, subdivision (a), and a separate felony (in that case, robberies), based on the same acts. “Here, the underlying robberies were the act that transformed mere gang membership-which, by itself, is not a crime-into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies. Gang participation merely requires that the defendant ‘willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang....’ (Pen. Code, § 186.22, subd. (a).) It does not require that the defendant participated in the underlying felony with the intent to benefit the gang. [Citations.]” (Sanchez at p. 1315.) “[T]he crucial point is that [the] defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself. Thus, the most analogous line of cases involves convictions for both felony murder and the underlying felony. It has long been held that section 654 bars multiple punishment under these circumstances. [Citations.]” (Ibid.)
The Sanchez approach was criticized in People v. Mesa, supra, 186 Cal.App.4th at page 786, stating that “it depends on both the commission of the underlying offense and the separate act of actively participating in a gang. Thus, ... liability under section 186.22, subdivision (a), necessarily depends on conduct distinct from the conduct which gives rise to liability for any underlying offense.”
Both approaches, however, require a separate and independent intent and objective be present in order to justify punishing the defendant under both statutes. The conclusion that the single act defendant committed had separate and independent intents and objectives is only supported by supposition and speculation, not substantial evidence. Accordingly, we conclude the trial court erred by imposing a separate sentence on defendant for street terrorism in this case. On remand, we direct the trial court to stay sentence on count two pursuant to section 654.
III
DISPOSITION
Defendant’s sentence as to counts one and two are reversed, and the matter is remanded for resentencing in a manner consistent with this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J.IKOLA, J.