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People v. Munoz

California Court of Appeals, Second District, Seventh Division
Apr 13, 2009
No. B207341 (Cal. Ct. App. Apr. 13, 2009)

Opinion

NOT TO BE PUBLISHED.

Appeal from a judgment of the Superior Court of Los Angeles County. No. LA052535 Darlene E. Schempp, Judge.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmond G. Brown, Jr., Attorney General, Dane Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel and Sarah J. Farhat, Deputys Attorney General, for Plaintiff and Respondent.


WOODS, Acting P. J.

Appellant Ramiro Munoz challenges his convictions and sentences for murder and shooting into an occupied motor vehicle. He argues that the court erred in giving incomplete accomplice jury instructions and by instructing with CALJIC No. 2.11.5. In addition, he argues that his murder conviction and weapons enhancement convictions violate the multiple convictions rule and double jeopardy principles. He also complains the court erred in sentencing him to a 10 year term of imprisonment for the gang enhancement. Only the claim of sentencing error has merit. As we shall explain, the testimony of the purported accomplice was sufficiently corroborated, and thus, Munoz suffered no prejudice as a result of any error in instructing the jury concerning accomplice issues. Moreover, appellant has not demonstrated prejudicial error in instructing the jury with the current version of CALJIC No. 2.11.5. Furthermore, appellant’s double jeopardy and multiple convictions rule arguments are unsound and have been rejected by the California Supreme Court.

BACKGROUND AND PROCEDURAL HISTORY

On the evening of April 21, 2006, Marcos Juarez, Paul Gomez (P. Gomez) and P. Gomez’ cousin Kristian Gomez (K. Gomez) were planning to drive from the San Fernando valley to Las Vegas for a family gathering. They planned to make the trip in Juarez’ black Honda Accord. Juarez drove the car, while P. Gomez sat in the front passenger seat and K. Gomez sat in the backseat. Prior to leaving town they stopped for gasoline and then planned to stop to buy snacks. At about 8:30 p.m., they proceeded in the Honda on Calvert Street in Van Nuys towards a food vendor truck parked on Calvert mid-way between the cross-streets of Hazeltine and Tyrone.

None of the three were gang members.

Appellant (also known as “Criminal”) a member of the Barrio Van Nuys (BVN) criminal street gang, three other BVN gang members, and Clemente Rodriguez (Rodriguez), who was not a gang member, were “hanging out” near the food vendor truck when Juarez drove up in the Honda. P. Gomez got out of the car and approached the vendor truck intending to buy some chips. Juarez and K. Gomez stayed in the car.

According to Rodriguez, while P. Gomez stood at the truck, appellant and another gang member (known as “Merk”) approached the car. They asked Juarez and K. Gomez what neighborhood they were from and then yelled out “Barrio Van Nuys.” Juarez appeared frightened and began to drive down the street away from the vendor truck towards Hazeltine. Appellant and Merk began chasing the car on foot.

Rodriguez testified under a grant of immunity.

According to Rodriguez, earlier in the day, while riding in a car around the neighborhood appellant, Rodriguez and several others had a “road rage” encounter with another car. Rodriguez stated that they believed the other car in that incident to be Juarez’ Honda. Rodriguez stated that the driver of the other car had “flipped them off” after nearly getting into an accident with them. P. Gomez confirmed that Juarez had the encounter with another car earlier that day.

While the exchange between appellant and Juarez occurred, Rodriguez approached P. Gomez who was standing at the vendor truck waiting to make a purchase. Rodriguez testified he recognized P. Gomez as a distant relative. Rodriguez asked P. Gomez the identity of the driver. P. Gomez told Rodriguez that Juarez was his cousin and was not a gang member. Rodriguez stated that after he spoke to P. Gomez, he ran towards appellant to tell him to stop – “not to shoot” – because Juarez was not in a gang.

By this time, Juarez had turned his car around and had begun to drive back towards the vendor truck to pick up P. Gomez. According to Rodriguez by the time he reached appellant, appellant had pulled out a revolver and fired two shots at the car through the passenger side window. Juarez was fatally wounded by the shots; he was struck twice, once in the neck and once in the head. After the shooting Juarez’ car proceeded out of control on Calvert towards Tyrone and eventually crashed into another vehicle.

Rodriguez further stated that he did not know the shooting was going to happen, but also testified that earlier in the evening at appellant’s apartment Rodriguez had seen appellant with the gun used in the shooting.

Rodriguez stated that after appellant shot into the car, both he and appellant ran to appellant’s nearby apartment. Appellant asked Rodriguez to urinate on his hands to remove any evidence that appellant had recently fired a gun. Rodriguez complied. They both took showers and then went out for the rest of the evening.

Appellant was arrested and charged with one count of murder and a second count of shooting at an occupied motor vehicle. The information further alleged as to both charges that appellant personally used (and intentionally) discharged a firearm which caused great bodily injury and death under Penal Code sections 12022.5 and 12022.53 and that the crimes were committed for the benefit of a criminal street gang under Penal Code section 186.22.

During the trial in addition to the testimony of Rodriguez, P. Gomez and K. Gomez testified. P. Gomez testified that he saw Juarez drive away from the vendor truck and thought he was pulling a “prank.” He also observed several people chasing the car and then heard the gunfire, at which point P. Gomez ran for cover into the apartment building next to the vendor truck. P. Gomez did not see the shooting and could not identify the shooter. P. Gomez further testified that when Rodriguez approached him at the vendor truck Rodriguez stated that Juarez was the person that had “flipped him off” earlier in the day and that P. Gomez denied it because he did not want anything to happen to Juarez. P. Gomez also denied discussing with Rodriguez whether Juarez was in a gang.

Similarly, K. Gomez who sat in the backseat of the car could not identify the shooter. He did, however, confirm that two people had approached the car and shouted something about BVN; that Juarez drove away and then turned around to pick up P. Gomez; and that several shots were fired and that the car crashed after Juarez was struck.

The prosecution also presented testimony of other people who were present on Calvert Street at the time of the shooting. Raquel Ochoa, who lived on Calvert adjacent to where the vendor truck had parked, was outside standing on Calvert when the incident occurred. She testified that she saw the black Honda pull up and saw P. Gomez get out and walk towards the vendor truck. She further saw several young men, including “Merk” yell out to the car asking what neighborhood they were from. She saw the Honda accelerate and saw “Merk” and appellant chase the car. She further testified that she saw Merk toss appellant a gun. She then heard shots, though she said she did not see appellant fire the gun. Afterwards she saw appellant run towards his apartment. Raquel Ochoa further testified that she and her family then ran into her sister Gabriela Ochoa’s apartment building. Shortly thereafter, P. Gomez also ran into her building and knocked on the door asking to be let in because he was afraid he was being pursued by the shooter.

Raquel Ochoa’s sister, Gabriela Ochoa also testified at trial. Gabriela Ochoa had known appellant for a number of years. She testified that she was standing on the street that evening and witnessed appellant shoot into the car. Raquel Ochoa stated that she had seen her sister Gabriela out on the street at some point prior to the shooting, but did not see her when the shooting occurred.

Irma Gonzalez, who lived in the apartment next to Gabriela Ochoa testified at trial that at 8:30 p.m. on the evening of the shooting Gabriela picked her up at the Greyhound bus terminal in Los Angeles. Gonzalez testified that en route in the car on the way back to Van Nuys, Gabriela Ochoa received a telephone call and became nervous. Gonzalez stated that by the time they arrived at Calvert Street the police had the area under police control. She testified that when they arrived at the apartment, Raquel Ochoa was there along with several other family members.

Amanda Lipscomb also testified during the trial. She stated that she was standing further down the street on Calvert. She testified that she saw a black car drive down the street towards Hazeltine. She then heard yelling and saw two men, whom she could not identify, chasing the car. Thereafter she saw the vehicle driving the other direction on Calvert towards Tyrone and then heard several shots fired.

The jury convicted appellant on both counts and found all of the special allegations true. Appellant was sentenced to a total of 50 years to life, plus 10 years.

Appellant timely filed this appeal.

DISCUSSION

Before this court, appellant asserts the trial court erred in instructing the jury on accomplice issues involving Rodriguez and in instructing with CALJIC No. 2.11.5. In addition, he claims that his convictions violate multiple conviction prohibition and federal and state constitutional double jeopardy principles. Finally he claims the court erred in sentencing him for the gang enhancement. We address these matters in turn.

I. Claims of Instructional Error.

Background.

Below when counsel and the court discussed the instructions to be given to the jury, appellant’s counsel noted his objection to the aiding and abetting and accomplice instruction. Although the transcript does not disclose the precise basis of the objection, the court stated in response: “[I]t is my opinion that the witness that was given immunity could be considered an aider and abettor or an accomplice, and we will give a stipulation that he was given immunity when we are out in front of the jury.” The court subsequently instructed the jury with CALJIC Nos. 3.00 (definition of principals), 3.01 (definition of aiding and abetting) and 3.10 (definition of accomplice). The court also instructed the jury with CALJIC No. 2.11.5, informing that there may be another person involved in the crimes and cautioning jurors not to speculate as to why the other perpetrator is not being prosecuted in that trial. The jury was also instructed with CALJIC No. 1.01 telling the jury to consider the instructions as a whole, and CALJIC No. 2.20 instructing the jury that it can consider any evidence of witness credibility, including the existence of a bias, interest, or other motive.

After appellant was convicted and just prior to his sentencing, appellant’s counsel asserted an oral motion for a new trial. Counsel argued that the trial court erred in instructing the jury on aiding and abetting and accomplice evidence. Specifically counsel complained that in view of the fact that the court decided to give the aiding and abetting and accomplice definition instructions to the jury, the court had a sua sponte duty to also instruct the jury with CALJIC No. 3.11 informing the jury that the testimony of an accomplice required corroboration. Counsel argued that Rodriguez’ testimony was not sufficiently corroborated and the jury did not have any instructions on how to assess his testimony. The defense argued, among other points, that Rodriguez did not constitute an accomplice—that there was no evidence that he was aware that the appellant was going to commit these crimes and once Rodriguez learned the identity of the victim, Rodriguez tried to stop appellant. The court denied the motion, remarking that it was for the jury to assess the credibility of Rodriguez testimony; that the evidence against appellant was overwhelming, and that in the court’s view the additional instruction would not have made a difference in the final verdict.

Claims before this Court.

On appeal, appellant argues the trial court erred in failing to instruct the jury with the full panoply of relevant jury instructions on accomplice issues. Specifically, he complains that in addition to the definitional instructions given, the court should have instructed with CALJIC Nos. 3.11 (instructing that corroboration of accomplice testimony is required), 3.12 (describing that sufficient evidence is required to corroborate accomplice testimony), 3.14 (indicating that the accomplice must have the requisite criminal intent for the commission of the crime), and 3.18 (instructing that the testimony of an accomplice must be viewed with caution).

Appellant also argues to this court that the court erred in instructing the jury with CALJIC No. 2.11.5, asserting that instruction undermined other instructions, namely CALJIC No. 2.20, informing the jury that in assessing Rodriguez’ credibility they could consider the fact that Rodriguez was testifying under a grant of immunity.

In response, the Attorney General argues that except for the argument about CALJIC No. 3.11, appellant waived any complaint about the other instructions because he failed to assert them below. Appellant counters that he can assert his complaints on appeal either because (1) the court had a sua sponte duty to give complete accomplice instructions and a corresponding duty to not give CALJIC 2.11.5; or (2) his counsel was ineffective for failing to assert these claims below.

Irrespective of how we analyze appellant’s arguments, either through the prisms of sua sponte duties or ineffective counsel, our conclusion is the same. As we shall explain fully below, appellant has not convinced us that the failure to receive additional accomplice instructions or that any error in instructing with CALJIC No. 2.11.5 resulted in prejudicial error. (See People v. Breverman (1998)19 Cal.4th 142, 178 [“[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on... theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d 818, 836.] A conviction of the charged offense may be reversed in consequence of this form of error only if, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred. [Citation.]”; People v. Ledesma (1987) 43 Cal.3d 171, 217-218 [to prevail on a claim of ineffective counsel, appellant must demonstrate counsel’s conduct was both incompetent and that but for the errors there is a reasonable probability that the result of the proceeding would have been different].)

Accomplice Instructions.

Penal Code section 1111 provides, “[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is... defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

To be chargeable with the same crime as the defendant: “... it would be necessary for the witness to be considered a principal under the provisions of section 31, which includes ‘[a]ll persons concerned in the commission of a crime... whether they directly commit the act constituting the offense, or aid and abet in its commission, or not being present, have advised and encouraged its commission....’” (People v. Hoover (1974) 12 Cal.3d 875, 879; People v. Stankewitz (1990) 51 Cal.3d 72, 90 [definition of an accomplice “encompasses all principals to the crime including aiders and abettors and coconspirators”].) An accessory, however, is not liable to prosecution for the identical offense and therefore is not an accomplice. (People v. Hoover, supra, 12 Cal.3d at p. 879.) To be an accomplice, a witness must have “‘guilty knowledge and intent with regard to the commission of the crime....’” (People v. Daniels (1991) 52 Cal.3d 815, 866-867, citations omitted; People v. Stankewitz, supra, 51 Cal.3d at pp. 90-91 [accomplice must act “‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging, or facilitating commission of, the offense’”].)

The defense has the burden of proof regarding the factual issue whether a witness is an accomplice. (People v. Fauber (1992) 2 Cal.4th 792, 834; see, e.g., People v. Frye (1998) 18 Cal.4th 894, 969 [the accomplice status of a witness is a collateral fact issue having no bearing on the guilt or innocence of the accused; thus courts have uniformly held it is proper to allocate to the defendant the burden of proving a witness is an accomplice].) Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn from the facts. (People v. Tewksbury (1976) 15 Cal.3d 953, 960.) Moreover, where the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony. (People v. Horton (1995) 11 Cal.4th 1068, 1114).

Before this court, appellant argues that because the trial court found Rodriguez to be an accomplice and because the court gave the basic definitions of principal, aider and abettor and accomplice to the jury, the court should have given all of the accomplice instructions implicated by the evidence, including CALJIC Nos. 3.11, 3.12, 3.14 and 3.18. The Attorney General argues, however, that none of the instructions were required because, as a matter of law, Rodriguez was not an accomplice.

In our view, whether or not Rodriguez was an accomplice is not entirely clear or free from doubt. On the one hand, Rodriguez was not in the BVN gang, he did not approach or did not chase the car, and he disclaimed any awareness that appellant planned to commit the murder. Indeed knowledge that a crime might be committed by the defendant in the future does not amount to aiding and abetting of the commission of a crime. (People v. Horton, supra, 11 Cal.4th at p. 1115.) According to Rodriguez he tried to stop appellant from harming the driver. If Rodriguez’ testimony is fully credited, then at most his conduct might give rise to a charge of an accessory after the fact.

On the other hand, Rodriguez was not an innocent bystander. He admitted on cross-examination that he wanted to be in the BVN gang, and gave a different and incomplete story to police when originally questioned; he did not divulge all that he witnessed until he was granted immunity. In addition, Rodriguez was involved in the confrontation earlier in the day with Juarez, and had seen appellant with the gun earlier in the evening. Furthermore Rodriguez’ actions in approaching P. Gomez at the vendor truck could possibly support an inference that Rodriguez shared appellant’s criminal purpose or intended to commit, facilitate, or encourage the crime. Indeed, the trial court, after hearing all of the evidence, also found that Rodriguez could be considered an accomplice or aider and abettor and on that basis decided to give CALJIC Nos. 3.00, 3.01 and 3.10.

Ultimately we need not resolve this issue, because even assuming section 1111 applied to Rodriguez, we find that the court did not commit prejudicial error by failing to instruct on the principles contained in the CALJIC accomplice instructions appellant has cited on appeal. In our view sufficient evidence presented at trial corroborated Rodriguez’ testimony and thus any error in failing to instruct on corroboration is harmless.

Accomplice testimony must be corroborated. (§ 1111.) Corroborative evidence must come in by means of the testimony of a nonaccomplice witness. (People v. Tewksbury, supra, 15 Cal.3d at p. 958.) It must tend to implicate the defendant, but need not corroborate every fact to which the accomplice testified or establish the corpus delicti. (People v. Szeto (1981) 29 Cal.3d 20, 27.) It is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. (People v. Sully (1991) 53 Cal.3d 1195, 1228.) Corroborative evidence may be slight and entitled to little consideration when standing alone. (People v. Fauber, supra, 2 Cal.4th at p. 835.) Moreover, the requisite corroboration may be established entirely by circumstantial evidence. (People v. Miranda (1987) 44 Cal.3d 57, 100.) If there is ample evidence corroborating the accomplice’s testimony, an error in failing to give accomplice instructions is harmless. (People v. Sully, supra, 53 Cal.3d at p. 1228.)

Rodriguez’ testimony was sufficiently corroborated by Raquel Ochoa who testified that she saw the black Honda pull up and saw P. Gomez get out and walk towards the vendor truck. She further saw several young men, including “Merk” yell out to the people in the black Honda asking what neighborhood they were from. She saw the Honda accelerate and saw “Merk” and appellant chase the car. She further testified that she saw Merk toss appellant a gun and then heard the gun shots, and afterwards saw appellant run away. Although she said she did not see appellant actually fire the gun, her testimony standing alone and without reference to Rodriguez’ testimony, implicates appellant and connects him to the commission of the crimes. It thus serves as sufficient corroboration for Rodriguez’ testimony under Penal Code section 1111. Likewise, certain aspects of Rodriguez’ version of the events are also supported at least in part by other witnesses such as Amanda Lipscome, and the Gomezs.

We note that Raquel Ochoa’s sister, Gabriela Ochoa’s testimony also corroborates Rodriguez’ testimony. However, the veracity of Gabriela Ochoa’s eyewitness account is cast in doubt by neighbor Irma Gonzalez, whose testimony strongly suggests that Gabriela Ochoa was picking Mrs. Gonzalez up from the train station at the time the shooting occurred and thus Gabriela Ochoa could not have been an eyewitness to the shooting. We do not (and need not) rely on Gabriela Ochoa’s testimony in reaching our conclusion with respect to the corroboration issue.

Likewise we observe that the jury was given other instructions, including CALJIC Nos. 2.20 and 2.92 which advised them that they consider various factors involved in eyewitness testimony and witness credibility including any bias, interest or motive of Rodriguez in testifying, any prior inconsistent statements he may have given about the events, the facts Rodriguez had been granted immunity and had prior contacts with the appellant. Thus, there was no prejudicial error in failing to remind the jurors of the requirement of corroboration for accomplice testimony.

In view of the foregoing and measured by the standards governing the assessment of corroborating evidence to support accomplice testimony, we conclude appellant did not suffer prejudice by the court’s failure to give additional accomplice instructions.

CALJIC No. 2.11.5

Appellant also contends that the trial court erred in instructing the jury with CALJIC No. 2.11.5 because the instruction prevented them from considering the fact that Rodriguez had been granted immunity in exchange for his testimony, thus effectively “neutralizing” CALJIC No. 2.20 (informing the jury it could consider the grant of immunity in assessing his credibility). Appellant also cites the Use Note to CALJIC No. 2.11.5, which admonishes: “Do not use this instruction if the other person is a witness for either the prosecution or the defense.” (Use Note to CALJIC No. 2.11.5 (2008) p. 46.) The Attorney General argues there was no error, but if there was, it was harmless.

We see no error. The trial court used the 2004 version of CALJIC No. 2.11.5, which provides: “There has been evidence in this case indicating that a person other than the defendant was or may have been involved in the crime for which that defendant is on trial. [¶] There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial.”

In addition to the Use Note for 2.11.5, appellant premises his claim of error on cases considering a pre-2004 version of CALJIC No. 2.11.5. While the 2004 version instructs the jury not to “speculate or guess,” the earlier instruction told the jury: “do not discuss or give any consideration as to why the other person is not being prosecuted.” The problem with the language in the earlier version arises when a non-prosecuted participant testifies at trial. Then, the earlier version might cause a jury to feel that it could not give consideration to admitted evidence that, for example, the witness had been granted immunity in exchange for testimony, since the grant of immunity was the reason the witness was not being prosecuted. A grant of immunity would be highly probative of witness bias and therefore is appropriate for a jury to consider. (People v. Fonseca (2003) 105 Cal.App.4th 543, 549.) A number of courts examining prior versions of CALJIC No. 2.11.5 found error in the use of the instruction when an unjoined perpetrator testified during the trial. (See People v. Fonseca, supra, 105 Cal.App.4th at p. 548, citing cases.)

In general, jury instruction “Use Notes” provide trial courts with helpful guidance on how and when to use instructions. They are not, however, statutes and therefore do not embody controlling legal authority.

The Fonseca court further observed that in no published opinion on the subject had a court found that giving the instruction when an unjoined perpetrator testified amounted to prejudicial error because in each of those cases the court had also given the jury all otherwise appropriate general instructions regarding witness’ credibility. (Id. at p. 549; see People v. Crew (2003) 31 Cal.4th 822, 845; People v. Lawley (2002) 27 Cal.4th 102, 162-163.)

The 2004 version of CALJIC No. 2.11.5 does not prohibit discussion or consideration, only speculating or guessing. Jurors should not speculate or guess on any topic. We see no potential problems with the language in the 2004 version. It simply reminds jurors to consider only the evidence presented at trial. The 2004 version of CALJIC No. 2.11.5 does not, in our view, prevent the jurors from considering Rodriguez’ credibility in light of a fact stipulated at trial—that he had received a grant of immunity. Consequently because the 2004 version of CALJIC No. 2.11.5 does not preclude the jury from considering evidence of possible bias, including a grant of immunity on the part of a nonprosecuted participant who testifies at trial, it in no way undermines or neutralizes CALJIC No. 2.20.

II. Double Jeopardy Claims

Before this court, appellant asserts two errors with respect to his conviction for murder and the true finding on the firearm enhancement in Penal Code section 12022.53, subdivision (d).

First, he argues that his murder conviction and firearm enhancement violate the “multiple conviction rule” embodied in People v. Ortega (1998) 19 Cal.4th 686, 692-694 and People v. Pearson (1986) 42 Cal.3d 351, 355, 359-360 and constitutional double jeopardy principles because the factual element essential for the firearm enhancement—proximately causing the death of the victim—is subsumed within the elements necessary for a murder conviction. Additionally, appellant asserts that enhancements must be considered in connection with the multiple conviction rule in light of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and People v. Seel (2004) 34 Cal.4th 535. Appellant acknowledges that the California Supreme Court has twice recently rejected these arguments in People v. Sloan (2007) 42 Cal.4th 110, 115-124, and People Izaguirre (2007) 42 Cal.4th 126, 130-134, but believes these cases were wrongly decided. We are bound by these holdings. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, we agree with the analysis contained in these precedents.

Second, appellant argues that in view of Apprendi and Sattazahn v. Pennsylvania (2003) 537 U.S. 101 federal double jeopardy protections should be applied within a unitary trial to enhancements. This argument lacks merit. First, United States Supreme Court precedent clearly provides that double jeopardy protections apply in successive prosecutions, not for multiple punishment within a unitary trial. Moreover, appellant has cited no authority for the proposition that sentencing enhancements should be treated the same as offenses for the purposes of double jeopardy, nor is there anything in Apprendi or Sattazahn to suggest otherwise.

I. Claim of Sentencing Error

Appellant claims the trial court erred in sentencing him to both the 25-years-to-life in prison on the first degree murder conviction and a consecutive 10-year sentence on the gang enhancement. He argues that in view of his sentence on the murder conviction, the sentence on the gang enhancement ran afoul of Penal Code section 186.22, subdivision (b)(1). Appellant is correct.

In People v. Lopez (2005) 34 Cal.4th 1002, 1004, the California Supreme Court considered whether a person suffering a conviction for first degree murder punishable by a term of 25-years-to-life could also be sentenced to the additional 10-year gang enhancement under Penal Code 186.22, subdivision (b)(1)(C). The Court held that: “first degree murder is a violent felony that is punishable by imprisonment in the state prison for life and therefore is not subject to a 10-year enhancement under section 186.22(b)(1)(C).” (Id. at p.1004.) Instead, the Court found the 15-year minimum parole eligibility term in section 186.22, subdivision (b)(5) applied. (Id. at pp. 1006-1007.)

In view of the foregoing, appellant’s sentence on the gang enhancement cannot stand and this matter must be remanded to the trial court to delete the 10-year gang enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(C) and to correct the abstract of judgment.

DISPOSITION

This matter is remanded to the trial court. On remand, the trial court is directed to vacate the abstract of judgment; and to order the Clerk of the Superior Court to prepare a new abstract of judgment consistent with this opinion. The court is further ordered to direct the Clerk of the Superior Court to send the new abstract of judgment to the Department of Corrections. The judgment is affirmed in all other respects.

We concur: ZELON, J., JACKSON, J.


Summaries of

People v. Munoz

California Court of Appeals, Second District, Seventh Division
Apr 13, 2009
No. B207341 (Cal. Ct. App. Apr. 13, 2009)
Case details for

People v. Munoz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAMIRO MUNOZ, Defendant and…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Apr 13, 2009

Citations

No. B207341 (Cal. Ct. App. Apr. 13, 2009)