Opinion
E053152
11-29-2012
THE PEOPLE, Plaintiff and Respondent, v. SABRINA REYNE MORENO, Defendant and Appellant.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva, and Sharon L. Rhodes, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. FSB056810)
OPINION
APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part with directions.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva, and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Sabrina Reyne Moreno was convicted of multiple counts arising from a gang-related incident in which the victim, John Doe, was assaulted, robbed and kidnapped during the course of a carjacking. She contends that the omission of an instruction on lesser included offenses was prejudicial and alternatively that her conviction on two charged lesser offenses must be reversed because she was also convicted of the greater offense. We find no prejudice stemming from the omitted instruction, but we agree that the conviction on the two lesser offenses must be reversed and the charges dismissed. We also address several sentencing issues raised by the Attorney General.
PROCEDURAL HISTORY
Defendant was charged with kidnapping for purpose of committing robbery (count 1; Pen. Code, § 209, subd. (b)(1)); first degree robbery (count 2; § 211); kidnapping in the commission of carjacking (count 3; § 209.5, subd. (a)); carjacking (count 4; § 215, subd. (a)); and kidnapping (count 5; § 207, subd. (a)). Each count included an allegation that the offense was committed for the benefit of or in association with a criminal street gang, within the meaning of section 186.22, subdivision (b)(1)(C) and that sentencing would be pursuant to section 186.22, subdivision (b)(4). Counts 1, 2 and 5 also included an allegation that a principal in the offense was armed with a handgun within the meaning of section 12022, subdivision (a)(1). As to all counts, the information alleged that defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b).
All statutory citations refer to the Penal Code unless another code is specified.
The prior prison term allegation was dismissed on motion of the prosecutor.
In a jury trial, defendant was acquitted of kidnapping for the purpose of robbery, but was convicted of false imprisonment (§ 236) as a lesser included offense of count 1. The gang allegation was found true as to count 1, but the principal armed allegation was found not to be true. Defendant was acquitted of robbery in count 2. She was convicted of kidnapping during the commission of a carjacking and of carjacking (counts 3 & 4, respectively), and the gang allegation was found true as to both counts. She was acquitted of kidnapping (count 5), but was convicted of false imprisonment as a lesser included offense. The gang allegation was found true as to count 5, but the principal armed allegation was found not to be true.
The court sentenced defendant to a term of 15 years to life on count 3 and a concurrent term of three years on count 1. It imposed and stayed the sentences on counts 4 and 5 pursuant to section 654.
We discuss the sentence in more detail below.
Defendant filed a timely notice of appeal.
FACTS
In June 2006, the victim, John Doe, saw defendant walking down a street in Colton carrying what appeared to be a heavy bag. He offered her a ride home, and she accepted. He drove her a few blocks to her home. They exchanged telephone numbers, and then he left. A few days later, defendant called Doe and asked him to take her to the market. He said he could not take her that night, but that he was planning to shop the next day. She called him the next morning, and they made arrangements to go to the store. Doe picked her up in front of her house and drove her home after she had completed her shopping.
At the house, defendant asked Doe to help her carry the groceries into the house. He brought in two bags and placed them in the entrance to the kitchen. A man came in from another room. He closed and locked the door, and then asked Doe for a cigarette. Doe gave him one and suggested going outside to smoke. He needed to leave to go to work, and he was also afraid that "something bad" was going to happen. The man insisted that they go into the garage. There was another man in the garage. The second man began to pat him down, and Doe "touched" the man to stop him from patting him down. The first man hit him in the face with a pistol. The men took his wallet, credit cards, ATM card and driver's license. They demanded his ATM PIN, and one of the men left with the ATM card. They wrote down his name and address on a piece of paper. They took whatever money he had in his pocket.
Doe recalled being hit only once, but photographs taken after the incident showed several serious facial injuries, including several cuts which required stitches. Doe also testified that one of his teeth was broken and had to be removed.
While Doe was in the garage, defendant came into the garage several times. She talked and laughed with the men. She never appeared to be afraid. At one point, a third person came in wearing a mask.
Doe was eventually taken out of the garage and was put into the back seat of his car by defendant and the man who had hit him with the gun. They blindfolded him with some socks that were in the car. The man drove and defendant sat in the front passenger seat. As they drove, defendant and the man (later identified as Louis Hernandez) chatted familiarly, sounding to Doe as though they were a couple. They eventually stopped at a market. Defendant went inside, apparently to buy milk for a baby, but returned a little while later saying that she could not find it.
Hernandez got out of the car, and defendant sat in the driver's seat. Doe had pushed the blindfold up a bit so that he could see a little bit. He saw that defendant had a knife. He decided to try to escape. He pulled the car seat forward and opened the door. Defendant tried to "grab" him with the knife. He got out of the car and ran to a liquor store adjacent to the market. Defendant drove after him but stopped in front of the market. The clerk at the liquor store helped with Doe's injuries and called the police. Other customers in the liquor store told Doe that his car was being driven away. Doe later identified defendant from a photo lineup.
When police went to the house where the incident began, they encountered Alexander Gurule, whom Doe later identified as one of his assailants. During their search of the house, police found a loaded handgun, which Doe later identified as the one used to hit him, a beer can with some drops of blood on it, and a piece of paper with Doe's name and address. They also found a digital camera with photographs of gang-style tattoos. Doe's car was found parked about five miles from the house. There was a sock on the back seat, and the rear seat belt had drops of blood on it. Video surveillance tapes from the market corroborated Doe's account.
The house where the incident began was a known hangout for North Side Colton and East Side Colton gang members. Louis Hernandez is a member of North Side Colton, while his brother Christopher, who rented the house, belongs to East Side Colton. Alexander Gurule is also a North Side Colton gang member. The two gangs jointly claim the area around the residence. West Side Verdugo is affiliated with the other two gangs, and the three gangs commit crimes together. All three, as well as South Side Colton, have ties to the Mexican Mafia. The parties stipulated that North Side Colton and West Side Verdugo are criminal street gangs within the meaning of section 186.22, subdivision (f).
A gang expert testified that as of the date of her arrest for this incident, defendant was an active member of West Side Verdugo, according to her own statements. She has a child with a member of North Side Colton who is a key member of the Mexican Mafia, and another child with Theodore Rios, a Mexican Mafia affiliate and a member of South Side Colton. Based on a hypothetical set of circumstances mirroring the prosecution evidence in this case, the gang expert gave his opinion that the offenses allegedly committed by defendant would have been committed for the benefit of West Side Verdugo as well as for promotion of the female gang member's status within the gang and its affiliates.
Defendant denied having anything to do with the incident in the garage. She testified that while she was once a member of West Side Verdugo, she was no longer in good standing with the gang, and no longer participated in "gang banging." She testified that she is regarded as a snitch because she gave the police information about other gang members' involvement in a murder. She had stayed away from the gang neighborhood for some time because she feared for her safety. She testified that she had begun staying at the house about three days before the incident with John Doe. Her friend, Louis Hernandez, had arranged for her to stay there.
Defendant testified that she had met Doe about two weeks before the incident. He offered her a ride, and they went to a motel and had sex. On the day of the incident, she had asked Doe to take her to the market. When they returned to the house, Doe wanted to have sex with her. She refused, but Doe came into the house with her. She testified that no one was home when she left the house to go to the market and that as far as she knew, no one was home when they returned. When she finished putting the groceries away, she went to the living room where she had left Doe and saw that Doe was gone. His car was also gone, and she thought he had left.
A few minutes later, a man with a mask entered the kitchen and asked for a rag to wipe blood from someone's face. After a minute or two, defendant realized he was referring to Doe. She denied knowing before that what had happened in the garage and denied being involved. However, once she knew what had happened, she could not just "walk away," because any of the people involved would have hurt her because she knew what happened.
Defendant asked Hernandez to take her to her father's house, about 10 blocks away. She did not see Doe in the car before she got in, but after she got into the car, she saw him in the back seat, bleeding and blindfolded. Hernandez said he was going to drop Doe off, and that he would drop her off as well. She did not see a gun in the car. She also denied that there was a knife in the car. At the market, when Hernandez asked her to go in and buy some formula for his son, she did not take the opportunity to run away because then Hernandez and the gang would be looking for her. If she ran, Hernandez would have thought she was a snitch "just like the other ones did." She would have had North Side Colton after her as well as West Side Verdugo.
LEGAL ANALYSIS
1.
THE OMISSION OF AN INSTRUCTION ON SEPARATELY CHARGED LESSER INCLUDED OFFENSES DOES NOT REQUIRE REVERSAL OF THE CONVICTION
ON COUNT 3
Whenever greater and lesser included offenses are charged as separate counts, the trial court must instruct the jury with an instruction such as CALCRIM No. 3519, to inform the jury that it cannot convict the defendant of both the greater and the lesser offenses for the same conduct and to instruct it on the applicable procedure. (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1585 [Fourth Dist., Div. Two].) Here, the trial court gave a similar instruction, CALCRIM No. 3517, which explained that the uncharged offense of false imprisonment is a lesser included offense of kidnapping for robbery (count 1) and of simple kidnapping (count 5). It did not, however, instruct that counts 4 and 5—carjacking and kidnapping—are lesser included offenses of count 3, kidnapping in the course of carjacking. Defendant contends that the court's failure to so instruct deprived the jury of the opportunity to consider whether to convict her on either count 4 or count 5, or both, in lieu of convicting her on count 3. Instead, the jury convicted her on all three counts, including the lesser included offense of false imprisonment on count 5. She contends that this was prejudicial because it is reasonably probable that a properly instructed jury would have convicted her only of the lesser offenses.
CALCRIM No. 3519 provides:
"If all of you find that the defendant is not guilty of a greater charged crime, you may find (him/her) guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct.
"[Now I will explain to you which charges are affected by this instruction:]
"[ ______ <insert crime> , as charged in Count ________, is a lesser crime to _______ <insert crime> [as charged in Count ________.]]
"[ _______ <insert crime> , as charged in Count ________, is a lesser crime to ________ <insert crime> [as charged in Count ________.]]
"[ ________ <insert crime> , as charged in Count ________, is a lesser crime to ________ <insert crime> [as charged in Count ________.]]
"It is up to you to decide the order in which you consider each greater and lesser crime and the relevant evidence, but I can accept a verdict of guilty of the lesser crime only if you have found the defendant not guilty of the greater crime.
"[[For (the/any) count in which a greater and lesser crime is charged,] (Y/y)ou will receive verdict forms of guilty and not guilty for [each/the] greater crime and lesser crime. Follow these directions before you give me any completed and signed, final verdict form. Return any unused verdict forms to me, unsigned.
"1. If all of you agree the People have proved beyond a reasonable doubt that the defendant is guilty of the greater crime, complete and sign the verdict form for guilty of that crime. Do not complete or sign any verdict form for the [corresponding] lesser crime.
"2. If all of you cannot agree whether the People have proved beyond a reasonable doubt that the defendant is guilty of the greater crime, inform me of your disagreement and do not complete or sign any verdict form for that crime or the [corresponding] lesser crime.
"3. If all of you agree the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime and also agree the People have proved beyond a reasonable doubt that (he/she) is guilty of the lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for guilty of the [corresponding] lesser crime. Do not complete or sign any other verdict forms [for those charges].
"4. If all of you agree the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater or lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for not guilty of the [corresponding] lesser crime.
"5. If all of you agree the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime, but all of you cannot agree on a verdict for the lesser crime, complete and sign the verdict form for not guilty of the greater crime and inform me about your disagreement on the lesser crime.]"
Because kidnapping during the course of a carjacking in violation of section 209.5, subdivision (a) requires a completed carjacking, carjacking is a lesser included offense of kidnapping during the course of a carjacking. (People v. Contreras (1997) 55 Cal.App.4th 760, 765.) Kidnapping is also a lesser included offense of kidnapping during the course of a carjacking. (See People v. Medina (2007) 41 Cal.4th 685, 700 [attempted kidnapping is lesser included offense of attempted kidnapping during the course of a carjacking].) Because there is no evidence of either a carjacking separate from the one alleged in count 3 or a third kidnapping in addition to those alleged in counts 1 and 3, we conclude that counts 4 and 5 were intended to be lesser included alternatives to count 3. A trial court must instruct on lesser included offenses as part of its duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) Accordingly, an instruction such as CALCRIM No. 3519 should have been given. (People v. Arevalo-Iraheta, supra, 193 Cal.App.4th at p. 1585.)
In a noncapital case, we review an erroneous omission of instructions on lesser included offenses under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman, supra, 19 Cal.4th at p. 165.) Under that standard, the error requires reversal if "an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Ibid.)
Defendant contends that the error requires reversal because "by finding [defendant] guilty of kidnap [sic] for carjacking [count 3], but not simple kidnapping [count 5], the jury necessarily agreed that [defendant] deprived John Doe of his liberty by confining, holding, and detaining him against his will while traveling in his car, but it further agreed that she did not kidnap him. If the jury did not find that [defendant] kidnapped Doe, then it could not, under a proper instruction on the law, find that she kidnaped [sic] him during a carjacking." We disagree. On the contrary, the jury did find that defendant both carjacked Doe (count 4) and that she kidnapped him during the course of the carjacking (count 3). Accordingly, we cannot say that the verdict on count 5 reflects a lack of belief that defendant kidnapped Doe during the carjacking. Rather, it appears that the jury, which was given no guidance by either the court or the arguments of counsel on this point, viewed count 5 as alleging a kidnapping which occurred after the carjacking was completed. In any event, it is not reasonably probable that if the omitted instruction had been given, the jury would have acquitted defendant on count 3 and convicted her only of false imprisonment on count 5. On the contrary, it is probable that the jury would have convicted defendant on count 3 and would have returned no verdict on count 4 or count 5, in accordance with CALCRIM No. 3519.
We think it is more probable that the jury based the verdict on count 5 on defendant's act of holding Doe in the car against his will after the car had been parked at the market for some period of time while first defendant and then Hernandez went inside to shop. In the absence of any instruction or argument explaining the relationship of count 5 to count 3, it is probable that the jury reasoned that the kidnapping and the carjacking were complete at that point because there was no further movement of defendant, and that because the car had been stationary for some time, the crime defendant committed by holding him in the car at knifepoint was false imprisonment.
2.
THE CONVICTIONS ON COUNTS 4 AND 5 MUST BE REVERSED
A defendant may not be convicted of both a greater offense and a necessarily included lesser offense. (People v. Medina, supra, 41 Cal.4th at p. 700.) Defendant contends, and the Attorney General concurs, that defendant's convictions on counts 4 and 5 must be reversed because both offenses were included lesser offenses of kidnapping during the course of a carjacking. We agree.
3.
SENTENCING ERRORS
The Attorney General points out that the abstract of judgment does not correctly reflect the sentence imposed, in that it erroneously reflects that the gang enhancement imposed on count 3 was stayed.
The abstract of judgment for the indeterminate term on counts 3 and 4 does show that the section 186.22 enhancement was stayed, while the abstract of judgment for the determinate sentence on counts 1 and 5 shows that a 15-year enhancement pursuant to section 186.22, subdivision (b)(4) was imposed on count 3. The sentencing minutes, on the other hand, state that the court imposed a sentence of 15 years to life on count 3 and that it also imposed a concurrent term of 15 years to life for the section 186.22 enhancement on count 3. Neither document correctly reflects the trial court's oral pronouncement of judgment. At sentencing, the court stated: "On Count 3, base term, kidnapping during carjacking . . . with [the allegation] under section 186.22[, subdivision] (b)(4) having been found true[,] the term of 15 years to life with a minimum 15-year must serve prior to be eligible for parole." When there are discrepancies between the minutes and/or the abstract of judgment, the court's oral pronouncement of judgment prevails. (People v. Zackery (2007) 147 Cal.App.4th 380, 386-387, 389.) Accordingly, the Attorney General is correct that these clerical errors must be corrected.
There are also errors in the sentence itself which must be corrected. First, the information alleged that sentencing on all counts, including count 3, was to be pursuant to section 186.22, subdivision (b)(4), based on the crime charged in count 1, and the trial court imposed sentence pursuant to that provision. However, subdivision (b)(4) applies only to specific offenses enumerated in that statute. Neither the offense charged in count 1—kidnapping for robbery—nor false imprisonment, the lesser offense of which defendant was convicted on count 1, is among the offenses specified in subdivision (b)(4). Nor is kidnapping during the course of a carjacking one of the offenses specified in subdivision (b)(4). Rather, section 186.22, subdivision (b)(5) applies to count 3. Subdivision (b)(5) provides that "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." Kidnapping during the course of a carjacking in violation of section 209.5, subdivision (a) carries a mandatory sentence of life with the possibility of parole. Accordingly, the sentence imposed is correct, although it is erroneously based on subdivision (b)(4). Sentencing under an incorrect sentencing provision in subdivision (b) results in an unauthorized sentence which can be corrected at any time, by the trial court or a reviewing court. (See People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295 [Fourth Dist., Div. Two].) Accordingly, we will direct the trial court to further correct the sentencing minutes and the abstract of judgment to show that on count 3, defendant was sentenced under section 186.22, subdivision (b)(5).
Section 186.22, subdivision (b)(4) provides:
"Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:
"(A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph.
"(B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.
"(C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1."
Miscitation in the information of the applicable sentencing provision under section 186.22 is not an error which renders the information defective, as long as the defendant was put on notice that an enhancement under that section would be sought. (People v. Sok (2010) 181 Cal.App.4th 88, 96, fn. 8.) The particular enhancement which applies is a question of law, not a question of fact which the prosecution must plead and prove.
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Finally, we will direct the trial court to further correct the sentencing minutes and abstract of judgment to state that on count 3, defendant was sentenced to life with a minimum parole ineligibility period of 15 years pursuant to section 186.22, subdivision (b)(5). Although courts sometimes refer to a life sentence with a minimum parole ineligibility period as "X years to life," the sentence under section 186.22, subdivision (b)(5) is more accurately described as a life term subject to a specified period of parole ineligibility.
DISPOSITION
The conviction for violation of Penal Code section 215, subdivision (a), carjacking, in count 4, is reversed. The conviction for violation of Penal Code section 236, false imprisonment, in count 5, as an included lesser offense of the charged offense of carjacking in violation of Penal Code section 215, subdivision (a), is also reversed. On remand, the superior court is directed to dismiss counts 4 and 5 as charged in the first amended information. The judgment is otherwise affirmed.
The superior court is directed to issue an amended abstract of judgment and sentencing minutes which reflect the dismissal of counts 4 and 5 and which describe the sentence on count 3 as life with a minimum parole ineligibility period of 15 years pursuant to Penal Code section 186.22, subdivision (b)(5). The superior court shall provide a copy of both the amended abstract of judgment and the amended sentencing minutes to the parties and to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
Acting P. J.
We concur: RICHLI
J.
CODRINGTON
J.