Opinion
E050575
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. TRAVIS LEE MASCARENAS, Defendant and Appellant.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FWV-701879)
OPINION
APPEAL from the San Bernardino County Superior Court. Michael A. Sachs, Judge. Affirmed with directions.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Travis Lee Mascarenas guilty as charged of the attempted murder and attempted robbery (counts 1-2) of Louis Alvarez at defendant's former place of employment, the Sycamore Inn (the Inn), of burglarizing the Inn (count 3), and of assaulting Alvarez with a knife (count 4). The jury also found that the attempted murder was premeditated; defendant personally used a knife in counts 1 and 2; and defendant personally inflicted great bodily injury in counts 1, 2, and 4.
In a separate trial, the court found that defendant had one prior strike conviction and one prior serious felony conviction. Both findings were based on a New Mexico robbery conviction that defendant suffered in 1988 when he was 19 years old. After denying defendant's Romero motion, the court sentenced him to life in prison with a minimum parole eligibility period (MPEP) of 14 years for the premeditated attempted murder conviction in count 1, plus a consecutive term of 18 years in counts 2 through 4 and the additional enhancements on counts 1, 2, and 4.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
For the premeditated attempted murder conviction in count 1, the court imposed an indeterminate term of life in prison with the possibility of parole, with an MPEP of 14 years (doubled from seven years based on the prior strike), plus three years for the great bodily injury enhancement, plus one year for the personal use enhancement, plus five years for the prior serious felony conviction, for a total indeterminate term of life plus nine years.
For the attempted robbery conviction in count 2, the court imposed a consecutive term of two years, doubled to four years based on the prior strike, plus five years for the prior serious felony conviction, for a consecutive, unstayed sentence of nine years, making defendant's total sentence life in prison with an MPEP of 14 years, plus 18 years.
All other terms were stayed. Specifically, on count 2 the court imposed but stayed three-year and one-year terms, respectively, for the great bodily injury and personal use enhancements on count 2. The court also imposed but stayed a 16-month term on count 3, two years on count 4, one year for the great bodily injury enhancement on count 4, and also imposed but stayed a 20-month term, representing one-third of five years, for the prior serious felony conviction on count 4.
Defendant appeals, claiming: (1) insufficient evidence supports the jury's finding that his attempted murder of Alvarez was willful, deliberate, and premeditated; (2) the trial court abused its discretion in denying his Romero motion to dismiss his prior strike conviction for purposes of sentencing; and (3) the trial court committed two sentencing errors, namely, it (a) erroneously imposed consecutive terms on counts 3 and 4 because it also stayed the sentences on counts 3 and 4, and (b) erroneously imposed a 20-month term (one-third of five years) for the prior serious felony conviction on the determinate term on count 4, because it also imposed five years for the same prior serious felony conviction on the determinate term on count 2.
We agree that consecutive terms were erroneously imposed on counts 3 and 4 because the terms on those counts were also stayed. We also agree that the 20-month term imposed on count 4 must be stricken because the five-year Penal Code section 667, subdivision (a) enhancement was already imposed once on defendant's aggregate determinate sentence. We find defendant's other claims without merit. Accordingly, we modify defendant's sentence to provide that the terms imposed but stayed on counts 3 and 4 are not to run consecutive to the terms on counts 1 and 2, and strike the 20-month term on count 4. We affirm the judgment in all other respects.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
1. The Attempted Robbery and Stabbing of Alvarez
The crimes occurred at the Inn, a prime steakhouse in Rancho Cucamonga, between 9:00 p.m. and 10:00 p.m. on Tuesday, August 7, 2007. The Inn is a three-story building with banquet and storage rooms on the first floor or basement, a restaurant and kitchen on the second floor, and three banquet rooms and offices on the third floor. In addition to the main entrance door, the Inn has a back door and three side doors.
The Inn is open from 5:00 p.m. to 9:00 p.m. After 9:00 p.m., the manager or assistant manager on duty makes sure that all the doors are locked and all the lights are turned off. He or she also collects cash from the servers and takes it to a combination-lock safe located in a closet in the third floor office. The safe normally contains at least $1,500 in cash as "backup bank" for the restaurant and bar. On August 7, there was $1,500 in the safe.
Defendant worked as an assistant manager at the Inn from May 11 to June 29, 2007. When he quit on June 29, he said he could no longer give 100 percent to the job, was having some personal issues, and needed to work part-time. He turned in his keys on July 2.
Alvarez was the managing partner of the Inn and had trained defendant to work as an assistant manager. Defendant knew the combination of the safe and was familiar with the Inn's closing procedures.
Alvarez normally worked at the Inn on Tuesday mornings, but was closing the Inn on Tuesday, August 7. Sometime after 9:00 p.m., Alvarez went to the third floor, noticed that the exit door at the south end of the hallway was slightly open, and closed it. The door opened to a patio and a staircase that led down to the parking lot. Alvarez also noticed that the dimmer-switch lights in one of the banquet rooms were slightly on, so he turned them off.
After Alvarez backed out of the banquet room and into the hallway, he heard footsteps running up to him. He turned and saw a person about a foot away from him, and screamed. Alvarez did not initially recognize the person, who said he "was desperate for money" and was "just there to rob [him]." The person then grabbed Alvarez's left arm with his right hand and told him to go to the office. After the person told Alvarez to go to the office, Alvarez thought the person's voice sounded "slightly familiar."
Not wanting to turn his back on the person, Alvarez began "side stepping" toward the office. He saw that the person's left hand was "behind him, up high," or "raised up toward his shoulder level." It was dark and Alvarez did not see anything in the person's left hand. It also appears from Alvarez's testimony that the person was holding his left hand out of Alvarez's line of sight.
After Alvarez had sidestepped eight to ten feet toward the office, he turned on a fluorescent light switch in the hallway, which "took a couple [of] seconds to kick in." After the lights turned on, Alvarez recognized the person as defendant.
Alvarez did not let defendant know he had recognized him, and continued sidestepping an additional three or four feet toward the office. Alvarez estimated that "[m]aybe ten seconds" after the lights came on, he turned his head to the right to make sure he did not bump into anything. Immediately after he turned his head, he felt something strike his neck. He first thought defendant had punched him in the neck, but after defendant took his hand away and dropped it down toward Alvarez's waist, Alvarez saw that defendant was holding a knife covered with blood.
Alvarez grabbed defendant's left hand, which was holding the knife, squeezed it, and struggled with defendant until the knife dropped to the floor. Alvarez then kicked the knife down the hallway. Defendant bent down and "went toward the knife" with his left hand, while still holding Alvarez's arm with his right hand. At that point, Alvarez broke free from defendant's grip and ran down the hallway past the knife. He pivoted around the banister of the staircase, fell several steps, "jumped" the rest of the way down the staircase, and ran into the kitchen. Alvarez told several employees who were in the kitchen to call 911 and that defendant had stabbed him.
Alvarez had worked at the bar at the Inn and had dealt with many people who drank too much alcohol. When defendant spoke, he did not slur his words and Alvarez did not smell any alcohol on him. Alvarez saw nothing indicating that defendant was under the influence of alcohol.
2. Alvarez's Injuries
Alvarez was taken to a local hospital, then to Arrowhead Regional Medical Center where he underwent surgery before 2:00 a.m. on August 8 to repair the knife wound to his neck. The knife injury was four centimeters deep and three centimeters wide on the surface. It missed Alvarez's carotid artery by one centimeter, but pierced his external jugular vein—a branch of the internal jugular vein. Alvarez also had lacerations on his thumb, decreased range of motion in his right shoulder, and weakness in his right hand.
3. The Knife
The knife was never recovered. During the struggle and after the knife dropped to the floor, Alvarez was able to view the entire knife, including its handle. To Alvarez, the knife looked like a steak knife or a large paring knife, but it did not come from the Inn. The steak knives used at the Inn were made of stainless steel and they had silver blades and handles. The knife defendant used was also stainless steel, but unlike the knives used at the Inn, it had a "rolled up" tip and the end of its handle was "a little bit thicker." As a trained chef, Alvarez was familiar with knives. While walking through a Williams-Sonoma store after the incident, Alvarez "froze" at the sight of a knife he believed to be identical to the one defendant used to stab him.
4. Additional Prosecution Evidence
Sheriff's deputies contacted defendant at his apartment in Colton at approximately 1:30 a.m. on August 8. Outside the apartment, deputies noticed that the hood of defendant's vehicle was warm. Defendant opened his apartment door after deputies knocked on it, and had what appeared to be dried blood on the heel of one of his feet. Inside defendant's bedroom, officers found a pair of boots and socks that also appeared to have bloodstains, though the items were not tested for blood. When defendant was booked into jail later that morning, the intake officer noticed the smell of alcohol.
Officers also found presumptive or apparent bloodstains on the front driver's side seat belt of defendant's car and elsewhere in the car. Bloodstains from Alvarez's stab wound were found in the third floor hallway of the Inn, at the top of and on the staircase, and in the kitchen.
No knives were missing from the tables of either of the third floor banquet rooms, and there were no bloodstains in the banquet rooms. The exit door at the southern end of the third floor hallway did not completely close unless it was pulled shut. B. Defense Evidence
1. Defendant's Testimony
Defendant testified in his own defense. He was 40 years old at the time of trial in February 2010, and he began drinking regularly around the age of 20. He spent most of the day drinking on August 7, 2007, after completing a drug and alcohol screening test in order to move into a sober living home on August 8. His drinking had become more "private" after his girlfriend left and took their daughter about eight months before the August 7 incident.
In March 2007, defendant moved to California from New Mexico to be closer to his daughter. He began working for the Inn as an assistant manager on May 11, and quit on June 29. He quit because he would drink alcohol after the Inn closed at night, and it was not helping his drinking problem. He wanted to stop drinking so he could have a healthy relationship with his daughter.
During the first week of August 2007, defendant found a job selling cars and was also offered a job performing manual labor for the owner of the sober living home. Although he had these jobs, he had not yet begun work and had been unemployed since leaving the Inn on June 29. To support himself, he was relying on personal savings and money he had received from his parents. His parents had sent him about $3,000 between May and July 2007.
At approximately 11:00 a.m. on August 7, defendant went home to pack and began drinking Jack Daniels. He then went to several bars, drinking more shots of Jack Daniels and beer. It was going to be his last day of drinking. The last bar he went to, the Lamp Lighter, was near the Inn.
After drinking at the Lamp Lighter, defendant knew he would not be able to drive home, so he went to the Inn so he could pass out and sleep on the roof. When he worked at the Inn, he often drank there and would sleep on the roof or on a couch in a room next to the office.
Defendant walked up the staircase to the roof of the Inn. After lying on the roof for a while, he needed to use the restroom and entered the Inn through an unlocked door. He knew the door did not close properly. By this time, it was around 8:00 p.m. and beginning to get dark outside. After entering the Inn, defendant staggered into the restroom, urinated on the floor and got one of his socks wet, then passed out in a room next to the restroom. Defendant was "very drunk" and did not know how long he had been there.
The next thing defendant knew, someone was grabbing and shaking him on the floor of the banquet room. He got up and tried to run, but hit a wall, a table, or a door. He grabbed a knife from a table setting or side server in the banquet room. There was a lot of "banging and yelling going on," and defendant was frightened. He recognized where he was, but did not understand why he was there or why he was being "yanked like that."
The struggle moved to the hallway. Defendant "jabbed" someone with the knife in reaction to the person's sudden movement or "flinch" toward him. Defendant then dropped the knife, the person tried to pick it up, defendant pushed him, and the person ran. Defendant grabbed his boots and ran outside, threw the knife into an arroyo next to the Inn, got in his car, and drove home.
After defendant arrived home, he saw that he had blood on his left hand and knew he had stabbed someone. He claimed he did not go to the Inn to rob anyone or take money from the safe. He knew the combination to the safe, and if he wanted to take money from it he could have entered the Inn through the unlocked third floor door and taken the money when no one was there. He admitted, however, that the door to the office was normally locked and he no longer had keys. He also knew that Alvarez normally had Tuesdays off, had keys to the office, and would have money collected from the servers.
Defendant claimed that when he stabbed Alvarez he did not aim for his neck or any area of his body, and he did not recall Alvarez turning on any lights. He denied he intended to kill Alvarez so he could get the keys to the office and take the money from the safe, and also denied he decided to kill Alvarez after Alvarez recognized him. By the time of trial, defendant had had a long time to think about what had happened and was "sincerely sorry" for Alvarez and his family. He never thought his alcoholism would have such consequences. When he was arrested, one of the officers told him he smelled like a brewery.
2. Defense Expert Testimony
Dr. Eugene Schoenfeld, a medical doctor practicing psychiatry and specializing in addiction medicine, also testified for the defense. Alcoholism is recognized as a mental disease or disorder, and alcohol intoxication can cause impaired judgment. Some alcoholics have "blackouts," meaning they do not recall what occurred while they were drinking. By a process called confabulation, an alcoholic who has had a blackout may attempt to fill the gaps in his or her memory. Confabulation is not intentional lying; it is an attempt to recall what occurred during a blackout.
3. Defendant's Father's Testimony
Defendant's father sent defendant money whenever defendant needed it or when he thought defendant might need it. He had been making defendant's cellular telephone payments for several years and had been making his car payments since April 2007. He sent defendant about $3,000 between May and August 2007, and defendant also received financial support from his siblings. C. Prosecution Rebuttal Evidence
Around 9:00 p.m. on August 7, Alvarez gave several of his family members a tour of the entire Inn, including the third floor banquet rooms. No one was in any of the banquet rooms or anywhere else on the third floor.
San Bernardino County Sheriff's Sergeant Bill Hope examined the banquet room where defendant said he was sleeping, and found no signs of a struggle or any bloodstains. There were bloodstains in the hallway, however. Sergeant Hope also examined each place setting in the banquet room to determine whether any knives were missing, and no knives were missing. On August 7 and again on August 8, he looked for a knife in and around the parking lot of the Inn and did not find one.
III. DISCUSSION
A. Substantial Evidence Shows That the Attempted Murder Was Willful, Deliberate, and Premeditated
Defendant claims that insufficient evidence supports the jury's finding that the attempted murder of Alvarez was willful, deliberate, and premeditated. Instead, he claims the evidence showed only that his act of stabbing Alvarez was a "'mere unconsidered and rash impulse.'" Thus, he argues, the premeditation finding must be reversed and his sentenced reduced accordingly.
1. Applicable Law
Our standard of review is well settled. We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence— that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could have found beyond a reasonable doubt that the attempted murder was willful, deliberate, and premeditated. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.) In determining whether the record contains substantial evidence of premeditation and deliberation, we draw all reasonable inferences in support of the finding. (People v. Perez (1992) 2 Cal.4th 1117, 1124, citing People v. Johnson, supra, at p. 578.)
"'[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.'" (People v. Smith (2005) 37 Cal.4th 733, 739.) An attempted murder is "premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.) "Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection." (People v. Cook (2006) 39 Cal.4th 566, 603.) "'"'Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .'"'" (People v. Stitely, supra, at p. 543.)
In accordance with these principles, CALCRIM No. 601 instructed the jury that defendant "acted willfully if he intended to kill when he acted," "deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill," and "premeditated if he decided to kill before acting."
The instruction also told the jury that: "The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved."
The court in People v. Anderson (1968) 70 Cal.2d 15 (Anderson), after surveying a number of cases involving the sufficiency of the evidence to support findings of premeditation and deliberation, identified three types or categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. (People v. Perez, supra, 2 Cal.4th at p. 1125.) The Anderson court observed that courts typically sustain premeditation and deliberation findings "'when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).'" (People v. Perez, supra, at p. 1125, quoting Anderson, supra, at p. 27.)
In other words, courts have generally found sufficient evidence of premeditation and deliberation when "'(1) there is evidence of planning, motive, and a method of killing that tends to establish a preconceived design; (2) extremely strong evidence of planning; or (3) evidence of motive in conjunction with either planning or a method of killing that indicates a preconceived design to kill.'" (People v. Tafoya (2007) 42 Cal.4th 147, 172.) These categories of evidence are not the exclusive means of establishing premeditation and deliberation, however. (Ibid.)
Indeed, the goal of Anderson was not to establish bright-line rules, but to aid reviewing courts in assessing the ultimate question of whether the evidence supports an inference that the killing was the result of "'a pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed.'" (Anderson, supra, 70 Cal.2d at p. 27.) Thus, the three categories of evidence identified in Anderson "need not be present in any particular combination to find substantial evidence of premeditation and deliberation." (People v. Stitely, supra, 35 Cal.4th at p. 543.) Other types or combinations of evidence may also support a premeditation finding. (People v. Perez, supra, 2 Cal.4th at p. 1125; Anderson, supra, at pp. 26-27.) When all three Anderson factors are present, however, a finding of premeditation and deliberation will generally be upheld. (People v. Stitely, supra, at p. 543.)
2. Analysis
Defendant maintains the prosecution presented no evidence that he engaged in any type of reflection before he stabbed Alvarez. Instead, he argues "[t]here was simply no time to reflect, weigh the considerations for and against his actions and then decide to act," and his act of stabbing Alvarez was an "impulsive, rash reaction made without consideration or thought" in response to Alvarez's sudden movement or turning of his head to the right. We disagree.
Defense counsel argued this theory to the jury, but the jury rejected it and reasonably concluded, based on substantial evidence, that defendant's attempted murder of Alvarez was premeditated and deliberate. As the prosecutor argued, Alvarez recognized defendant as soon as the hallway lights came on. Then, around 10 seconds after the lights came on, Alvarez turned his head to the right to see where he was going, and defendant immediately stabbed him. Though the jury could have reasonably concluded that defendant's act of stabbing Alvarez was an unconsidered, rash impulse in response to Alvarez turning his head to the right, it also could have reasonably concluded, and apparently did conclude, that the lapse of 10 seconds between the moment Alvarez recognized defendant and the moment defendant stabbed Alvarez gave defendant sufficient time to reflect on, consider, and weigh the consequences for and against murdering Alvarez. (Cf. People v. Solomon (2010) 49 Cal.4th 792, 829 [premeditation and deliberation do not occur "in a 'flick of an eye'"].)
Substantial evidence also showed that while defendant was walking Alvarez down the hallway, he was holding onto Alvarez with his right hand while holding the knife in his left hand. According to Alvarez, defendant was holding his left hand "behind him, up high" or "raised up toward his shoulder level." This reasonably indicated that defendant was prepared to stab Alvarez as he was walking him down the hallway, and had reflected on and considered stabbing Alvarez even before the lights turned on and Alvarez recognized him.
Concomitantly, all three Anderson factors are present. As indicated, "'evidence of motive in conjunction with either planning or a method of killing [or attempted killing] that indicates a preconceived design to kill'" is generally sufficient to uphold a finding of premeditation and deliberation. (People v. Tafoya, supra, 42 Cal.4th at p. 172.) Here, evidence of motive, in conjunction with planning and the method and circumstances of the attack on Alvarez, all indicated a preconceived design to kill.
After Alvarez recognized him, defendant had a motive to kill Alvarez in order to avoid prosecution for burglary, attempted robbery, and assault with a deadly weapon. Defendant knew the Inn's closing procedures, knew there would be money in the safe, and brought a knife with him to the Inn. The stabbing of Alvarez in the neck, a vital part of his body, after Alvarez recognized him, coupled with the lapse of 10 seconds between the moment Alvarez recognized him and the moment defendant stabbed him in the neck, together with the evidence that defendant "went for the knife" after it fell to the floor during the struggle with Alvarez, supported a reasonable inference that the attempted murder of Alvarez was premeditated and deliberate. In sum, the evidence of a motive to kill, coupled with the evidence that the robbery and attack were planned, and the manner and circumstances of the near-fatal attack on Alvarez, all indicated that defendant reflected on and considered killing Alvarez before he stabbed him in the neck. B. Defendant's Romero Motion Was Properly Denied
Defendant next claims the trial court abused its discretion in denying his motion to strike his 1988 prior strike conviction, which also constituted a prior serious felony conviction, for purposes of sentencing. We find no abuse of discretion.
1. Relevant Background
The court found that defendant had one prior strike conviction (§ 667, subds. (b)-(i)), which also constituted a prior serious felony conviction (§ 667, subd. (a)), based on defendant's December 16, 1988, guilty plea and conviction for armed robbery in New Mexico. Defendant was sentenced to five years for the armed robbery conviction, but ultimately performed only community service. According to defendant, he used an unloaded .357-magnum handgun, which he had taken from his father, to commit the 1988 armed robbery.
In 1991, defendant suffered a second degree burglary conviction in New Mexico, which violated the terms of his parole on his 1988 conviction, but the 1991 conviction was not alleged as a prior strike or prior serious felony conviction. According to defendant, the conviction resulted from a party he and others had at a restaurant where he was employed, without the owner's permission. All but 16 days of defendant's 18-month sentence for the burglary conviction was suspended. In 1996 or 1997, defendant was convicted of driving under the influence in New Mexico and referred to alcohol screening.
Defendant had lived in New Mexico most of his life before moving to California in March 2007. He was 40 years old at the time of sentencing. After graduating from high school, he attended community college for about two years, focusing on courses in business and restaurant management. He had multiple certifications in the field and had worked in the restaurant business for years. He began drinking during his senior year in high school and by the age of 21 was "seriously involved" with alcohol.
In his Romero motion, defendant pointed out that his 1988 prior strike was remote in time, occurring nearly 20 years before his current offenses. His 1988 armed robbery and 1991 second degree burglary convictions occurred when he was only 19 to 21 years old, and aside from his mid-1990's misdemeanor driving under the influence conviction, he had not suffered any convictions for nearly 20 years.
At sentencing, the trial court observed that it had received numerous letters attesting to defendant's good character. Nevertheless, the court denied the motion to strike the 1988 armed robbery conviction, pointing out that it was a violent crime and involved the use of a handgun to steal money from a person, even though the handgun was unloaded. The court also noted that defendant served little to no jail time for the 1988 robbery, and if he had served a significant amount of jail time he may not have committed his current offenses.
"[M]ore than anything else," the court said it was persuaded not to strike the 1988 armed robbery because defendant's current offenses were "an escalation" from, or were more serious and violent than, the 1988 offense. The 1988 and current offenses both involved the use of a weapon, but the current offenses also involved defendant's personal infliction of great bodily injury, and Alvarez could "very well likely have died" as a result of defendant's actions.
2. Applicable Law and Analysis
We review a trial court's refusal to dismiss a prior strike conviction for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The defendant has the burden of establishing an abuse of discretion. (Id. at p. 376.) The trial court will not have abused its discretion unless its decision "is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
As explained in Romero, "the Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders." (Romero, supra, 13 Cal.4th at p. 528.) The trial court's discretion to strike a qualifying strike is therefore guided by "established stringent standards" designed to preserve the legislative intend behind the "Three Strikes" law. (People v. Carmony, supra, 33 Cal.4th at p. 377; § 1385, subd. (a).) "[T]he court . . . must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant contends the trial court abused its discretion by refusing to strike his 1988 conviction. He argues he falls outside the spirit of the Three Strikes law because his 1988 armed robbery conviction occurred when he was only 19 years old and nearly 20 years before his current offenses; he has been crime-free ever since 1988 with the exception of his 1991 second degree burglary conviction and his 1996 misdemeanor driving under the influence conviction; and the 1991 and 1996 convictions occurred as a result of his chronic alcoholism.
Though defendant presents a good argument for why he should be deemed outside the spirit of the Three Strikes law, it cannot be said that the trial court's contrary decision and refusal to dismiss his 1988 prior strike conviction was irrational or arbitrary. (People v. Carmony, supra, 33 Cal.4th at p. 377.) To the contrary, the record showed that defendant's attempted murder of Alvarez was premeditated, and more serious and violent than his 1988 armed robbery conviction or his 1991 second degree burglary conviction. The record also showed that defendant had long suffered from alcoholism but had repeatedly failed to address his alcohol problem—despite the help and support of many family members and friends.
Relying on People v. Garcia (1999) 20 Cal.4th 490 at page 503, defendant further argues that the court erroneously failed to consider the length of his sentence with and without the strike prior in determining whether to strike the strike prior. He points out that, had the court dismissed his prior strike, it still would have been required to sentence him to life in prison with an MPEP of seven years, plus a minimum additional sentence of 12 years. But in refusing to strike the strike, the court sentenced him to life with an MPEP of 14 years, plus 18 years.
More specifically, defendant argues that if the court had dismissed his prior strike, it still could have sentenced him to life in prison on count 1, plus five years for the prior serious felony conviction on count 1. And on count 2, the court could have sentenced him to two years, plus five years for the prior serious felony conviction, for a total sentence of life with an MPEP of seven years, plus 12 years.
Defendant maintains that the lesser sentence of life with an MPEP of seven years, plus 12 years, would have adequately punished him for his current offenses and his recidivism. He points out that he is required to serve 85 percent of his sentence because his current offenses were violent. Thus, even under the lesser sentence, he would not be eligible for parole for at least 10 years and would almost certainly be denied parole for up to 15 years.
Still, we find no abuse of discretion. Garcia involved a defendant whose criminal history did not include any actual violence, and his current convictions consisted of two counts of first degree burglary. (People v. Garcia, supra, 20 Cal.4th at pp. 493, 503.) By contrast, defendant's strike prior was an armed robbery, a violent felony, and his current convictions also included violent felonies—even premeditated attempted murder. C. Sentencing Issues
Defendant claims the court made two additional sentencing errors—first, in imposing two separate five-year terms on counts 1 and 2 based on his single prior serious felony conviction (§ 667, subd. (a)), and second, in imposing consecutive terms on counts 3 and 4 while also staying the sentences on counts 3 and 4.
The People and we agree that the court erroneously ordered the terms on counts 3 and 4 to run consecutive to counts 1 and 2 because it also stayed the terms on counts 3 and 4. We therefore correct defendant's sentence to eliminate the order that counts 3 and 4 be run consecutive to counts 1 and 2. We also conclude the court erroneously imposed a 20-month term (one-third of five years) for the prior serious felony conviction on count 4, because it also imposed a five-year term for the prior serious felony conviction on another determinate term—defendant's four-year base term for the attempted robbery in count 2. We therefore strike the 20-month term imposed for the prior serious felony conviction on count 4.
1. Relevant Background
Defendant's sentence consists of a life term with an MPEP of 14 years on count 1, plus four years for the great bodily injury and personal use enhancements on count 1, plus five years for the prior serious felony conviction, or nickel prior, on count 1, for a total indeterminate term of life in prison with an MPEP of 14 years, plus nine years, on count 1. On count 2, the court imposed a consecutive determinate term of four years, plus five years for the nickel prior on count 2, and imposed but stayed additional terms on the great bodily injury and personal use enhancements on count 2, on counts 3 and 4, on the great bodily injury enhancement on count 4. The court also imposed but stayed a 20-month term (one-third of five years) for the nickel prior on count 4. Thus, defendant's total, unstayed sentence consists of an indeterminate term of life in prison with an MPEP of 14 years, plus a determinate term of 18 years.
The People mistakenly argue that the court did not impose any term for the prior serious felony conviction on count 4. The record plainly shows that the court imposed but stayed a 20-month term (one-third of five years) for the prior serious felony conviction on count 4. (People v. Alford (2010) 180 Cal.App.4th 1463, 1469 [trial court must impose sentence on all counts but stay execution of sentence to prevent multiple punishment].)
2. Counts 3 and 4 Should Not Have Been Run Consecutive to Counts 1 and 2
As the People concede, the trial court erroneously ordered the terms on counts 3 and 4 to run consecutive to the terms on counts 1 and 2, because the court also stayed the base terms and enhancements it imposed on counts 3 and 4. Whenever a term is stayed, it cannot also be run consecutive to the term imposed on any other count.
As explained in People v. Cantrell (2009) 175 Cal.App.4th 1161 at page 1164 [Fourth Dist., Div. Two], "the imposition of a 'consecutive' and 'stayed' sentence would be meaningless because the stayed sentence would only operate if the principal count were eliminated. Therefore, a stayed sentence cannot be consecutive to a principal sentence."
We therefore modify defendant's sentence to eliminate that portion of the sentence directing that the terms imposed on counts 3 and 4 run consecutive to the terms imposed on counts 1 and 2. (People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court's authority to modify judgment includes authority to correct sentencing error]; § 1260.) We do not disturb that portion of the sentencing order staying the terms imposed on counts 3 and 4.
3. The 20-Month Term Was Erroneously Imposed on Count 4
Relying on People v. Tassell (1984) 36 Cal.3d 77, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401, defendant claims the trial court erroneously imposed a 20-month term for his prior serious felony conviction on count 4 because it already imposed a five-year term for the same prior serious felony conviction on his determinate term in count 2. We agree. Under Tassell, the five-year section 667, subdivision (a) enhancement can only be imposed once on an aggregate determinate sentence, regardless of the number of determinate terms that make up the aggregate determinate sentence. (People v. Tassell, supra, at p. 90; People v. Williams (2004) 34 Cal.4th 397, 400-405; People v. Misa (2006) 140 Cal.App.4th 837, 844-847.) Accordingly, the 20-month term on count 4 must be stricken.
IV. DISPOSITION
The matter is remanded to the trial court with directions to prepare an amended abstract of judgment showing that the terms imposed but stayed on counts 3 and 4 are not to run consecutive to the terms imposed on counts 1 and 2, and that the 20-month section 667, subdivision (a) enhancement on count 4 (one-third of five years) has been stricken. The trial court is further directed to forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
Richli
Acting P.J.
Codrington
J.