Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF139226. Lawrence W. Fry, Judge. Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.
Peter Dodd, 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, Robin Derman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
INTRODUCTION
A jury convicted defendant and appellant Robert Lee Meraz of carjacking (count 1; Pen. Code, § 215, subd. (a)), robbery (count 2; § 211), dissuading a witness (count 3; § 136.1, subd. (b)(1)), and misdemeanor resisting a peace officer (count 4; § 148, subd. (a)(1)). The jury also found that defendant personally used a firearm (§ 12022.53, subd. (b)) as to counts 1 and 2, but not count 3. Defendant contends that (1) sentencing him consecutively on the witness dissuasion count violated his right to a jury trial; (2) the trial court misunderstood its discretion to strike or run the sentence on the witness dissuasion count concurrently; and (3) there was insufficient evidence to support the use of a firearm enhancement. We disagree with the first and third contentions, but agree with the second. Accordingly, we reverse with instructions to resentence.
Unless otherwise indicated, further statutory references are to the Penal Code.
BACKGROUND
On October 8, 2007, the victim parked his vehicle two spots away from the entrance to a store. The victim returned to his car after patronizing the store. Just after starting the engine, the victim felt the cold metal from defendant placing a gun right behind his ear. The victim tried to glance at defendant but was told, “Don’t look at me,” and was also told to give defendant his money. After the victim gave defendant his cash, credit cards, and wallet, defendant dug the gun further into the victim’s head and the victim heard the gun make a clicking noise. The victim told defendant to take anything he wanted, including the car, and defendant then opened the car door and pulled the victim out by grabbing his shirt and pulling his shoulder. Defendant then put the gun in the middle of the victim’s back, told the victim again not to look at him, and walked the victim around to the side of the store. At the side of the store, defendant told the victim, “Don’t look back, don’t look back.” The victim then heard his car start and saw it leave on the same side of the building. Defendant drove the vehicle back, stopped the car, and told the victim, “I have your wallet. I know where you live. Don’t say shit.” The victim responded, “that’s fine, just leave” and turned to face the wall of the store so that he would not see the direction defendant drove. The victim never saw the gun, but was later able to identify the clicking noise as the sound of a gun being dry fired. Defendant was later apprehended by a police officer after fleeing from the victim’s car.
Dry firing is pulling the trigger on an unloaded firearm; this causes a noise when the hammer strikes the firing pin, which depresses into an empty chamber.
The People’s sentencing brief argued that, pursuant to section 1170.15, defendant had to be sentenced to two consecutive years for the witness dissuasion count. At the October 3, 2008, sentencing hearing, defendant’s trial counsel agreed with the People’s analysis that the sentence on the witness dissuasion count had to be full midterm consecutive. The trial court sentenced defendant to the midterm of five years for the carjacking count, with 10 consecutive years for the firearm use enhancement; and the midterm of three years, concurrent, for the robbery count. The court sentenced defendant to two years consecutive for the witness dissuasion count because it understood from counsel that “this needs to be a consecutive term.” A one-year concurrent sentence was imposed for the misdemeanor resisting a peace officer. This resulted in a total sentence of 17 years.
DISCUSSION
Defendant contends that (1) sentencing him consecutively on the witness dissuasion count violated his right to a jury trial; (2) the trial court misunderstood its discretion to strike or run the sentence on the witness dissuasion count concurrently; and (3) there was insufficient evidence to support the use of a firearm enhancement. We disagree with the first and third contentions, but agree with the second.
A. Section 1170.15 Is an Alternative Sentencing Scheme
Defendant contends that sentencing him consecutively violated his rights to due process and a jury trial. To the extent defendant challenges the validity of People v. Black (2007) 41 Cal.4th 799, 823 (Black II), and the entire consecutive sentencing scheme in California, we note that we remain bound by Black II. Thus, we only address defendant’s contention as it applies to his argument that imposing a consecutive sentence pursuant to section 1170.15 requires a jury finding of fact. As to that issue, we disagree with defendant.
The right to a jury trial extends to “ ‘any fact that exposes a defendant to a greater potential sentence’ ” than the sentence “ ‘a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ ” (Black II, supra, 41 Cal.4th at p. 809.) “[A] trial court’s imposition of consecutive sentences does not violate a defendant’s Sixth Amendment right to jury trial. [Citations.]” (Id. at p. 821-822.)
Section 1170.15 provides: “Notwithstanding subdivision (a) of Section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony,... the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed....”
“Section 1170.15 does not create an enhancement, but an alternative sentencing scheme.” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1835.) Accordingly, “section 1170.15 need not be specifically pleaded and proven.” (Ibid.)
The application of section 1170.15 does not require any additional jury fact finding. It applies whenever a jury finds a defendant guilty of a felony and of dissuading a victim of, or witness to, that felony. Thus, application of the statute does not depend on factual findings in addition to, or different from, those made by the jury. Section 1170.15 is applicable to the present case because the jury convicted defendant of robbing and carjacking the victim, and dissuading the victim.
B. Section 1170.15 Does Not Mandate a Consecutive Sentence
Defendant contends the trial court misunderstood its discretion to strike or run the sentence on the witness dissuasion count concurrently. We agree that the trial court did not understand that it had the discretion to impose a concurrent sentence.
The trial court adopted the understanding of both prosecution and defense trial counsel that the sentence for the witness dissuasion count had to be consecutive.
However, the plain language of section 1170.15, ante, indicates that a sentencing court has discretion to impose either a concurrent sentence or a consecutive sentence where, as here, a defendant is convicted of a felony and a violation of section 136.1 against the same victim. Section 1170.15 does not require the trial court to impose a consecutive term. Section 1170.15 is triggered only when the court chooses a consecutive sentence for the conviction of section 136.1. In that event, the sentence must be the full middle term, not one-third of the middle term, as required by section 1170.1, subdivision (a).
The People correctly note that defendant forfeited this claim because defense counsel affirmatively agreed that the sentence had to be consecutive. However, we disagree with the People’s contention that defense counsel’s assistance was objectively reasonable for tactical reasons or that there was no reasonable probability of a different result. This is because defendant’s trial counsel unreasonably adopted the prosecution’s erroneous interpretation of section 1170.15 and, if trial counsel had raised a proper interpretation, there is a reasonable probability that the trial court may have exercised its discretion to sentence concurrently.
Because defendant’s trial counsel was ineffective when she failed to point out that the trial court had discretion to sentence count 3 either concurrently or consecutively, and because the trial court erroneously believed it was required to impose a consecutive full middle term, the trial court must resentence defendant.
C. Substantial Evidence Supports the Firearm Use Enhancement
Defendant contends that the evidence does not establish that he used a firearm because the victim did not see the gun and did not have prior firearm experience to identify the clicking noise. We disagree.
We review claims of insufficiency of evidence by examining “ ‘the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value.’ ” (People v. Story (2009) 45 Cal.4th 1282, 1296.) The standard is the same even if circumstantial evidence was relied upon. (Ibid.) Because it is the trier of fact, and not the appellate court, that must be convinced, “ ‘ “ ‘ “ ‘[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ” ’ ” (Ibid.) In examining the evidence, we focus on the evidence that did exist rather than on the evidence that did not. (See id. at p. 1299.) The scope of the evidence includes both the evidence in the record, as well as “reasonable inferences to be drawn therefrom.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89.)
A victim’s inability to say conclusively that an object was a firearm and not a toy or imitation “does not create a reasonable doubt, as a matter of law, that the gun was a firearm.” (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1437.) A “defendant’s conduct and words in using [an object] may constitute sufficient circumstantial evidence to support a finding that it was a firearm within the meaning of section 12022.53, subdivision (b).” (Ibid.)
The victim testified to feeling the cold metal of an object he thought was a gun being pressed into his head, the object making a clicking noise he later thought comparable to dry firing, and the object being pressed into his back after he was forced out of his car. The victim’s testimony regarding the use of the object and his impressions of the clicking noise provide substantial evidence from which the jury could conclude that the object defendant used in a menacing manner was a firearm.
DISPOSITION
The imposed sentence is reversed. The trial court is directed to conduct a new sentencing hearing where it may exercise its discretion in selecting between a consecutive or concurrent sentence on count 3. In all other respects, the judgment is affirmed.
We concur: McKINSTER J. KING J.