Opinion
C084388
10-04-2018
THE PEOPLE, Plaintiff and Respondent, v. HARRIS MAYNARD RIDDLE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TF16-000037)
While returning from a trip to Reno with his wife, defendant Harris Maynard Riddle pulled their car over on Interstate 80 near Donner Lake and shot his wife through the leg while she sat in the passenger seat of their car. They had been arguing throughout the trip. After shooting his wife, defendant got out of the car and shot at the vehicle 19 more times. Although defendant and his wife claimed the shooting was an accident, a jury convicted defendant of assault with a firearm (Pen. Code, § 245, subd. (a)(2)—count I), corporal injury to a spouse (§ 273.5, subd. (a)—count II), shooting at an occupied motor vehicle (§ 246—count III), and discharge of a firearm with gross negligence (§ 246.3, subd. (a)—count IV). Enhancements for personal use of a firearm (§ 12022.5, subds. (a), (d)), personal infliction of great bodily injury (§ 12022.7, subd. (a)), and personal infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)), which were attached to the assault with a firearm charge and the corporal injury to a spouse charge, were also found true. The court sentenced defendant to an aggregate term of 10 years in state prison.
Undesignated statutory references are to the Penal Code.
Defendant raises several issues on appeal, including that (1) the matter should be remanded to allow the trial court to exercise newly granted discretion over whether to strike the firearm enhancements; (2) the section 12022.5 firearm enhancement, which defendant claims was attached to the count III shooting at an occupied motor vehicle offense, was unauthorized since firearm use is an element of that offense; (3) his conviction for discharging a firearm with gross negligence must be reversed because it is a lesser included offense of shooting at an occupied motor vehicle; (4) because the section 246.3 conviction for discharging a firearm with gross negligence cannot stand, fines and fees based on that conviction are improper; (5) and the fine imposed pursuant to section 1202.5 was unauthorized because defendant was not convicted of any of the qualifying offenses under the statute. Defendant also requests that the court's minute order and abstract of judgment be corrected accordingly.
We conclude that the recent legislative amendments giving trial courts discretion to strike firearm enhancements apply retroactively to defendant and we shall remand to the trial court to determine whether to exercise its discretion under the new law. We further conclude that the court improperly sentenced defendant to a full low term of three years for one of the firearm use enhancements, that defendant's count IV conviction for discharge of a firearm with gross negligence, which is a lesser included offense of defendant's count III conviction for shooting at an occupied motor vehicle, must be reversed, and that corrections to the fines and fees imposed below is warranted. We therefore affirm defendant's remaining convictions, and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A May 2016 information charged defendant with assault with a firearm (count I), corporal injury to a spouse or cohabitant (count II), shooting at an occupied motor vehicle (count III), and discharge of a firearm with gross negligence (count IV). For counts I through IV, it was alleged that defendant personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d). For count II, it was alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e).
The complaint originally included an attempted murder charge, but the trial court found insufficient evidence at the preliminary hearing to hold defendant to answer on that count.
The evidence at trial showed the following:
Defendant and his wife, D.R., lived in Stockton. In January 2016, they drove their minivan to Reno for a visit. They argued along the way. Shortly after arriving in Reno, they turned around and headed back to Stockton along Interstate 80 while continuing to argue.
While driving through Truckee, it began to snow. Defendant pulled the minivan over at a vista point overlooking Donner Lake. D.R. was in the front passenger seat. The couple continued to argue, and defendant eventually pulled out a semiautomatic handgun and shot D.R. through the left thigh. The bullet traveled through her leg, through the passenger seat, and out the passenger door. D.R. remained in the front passenger seat, and defendant got out of the car. Upset, he fired 19 shots at the vehicle, flattening the back tire on the driver's side and hitting the car several more times. Defendant returned to the car, and he and D.R. crawled into the back and fell asleep.
The next morning, California Highway Patrol Officer Demarcus Lack saw the minivan parked at the vista point. Later in the day, the officer returned to the vista point and checked on the van. Thinking that the van had been abandoned, Officer Lack approached the vehicle and noticed it had a flat tire and multiple bullet holes. Officer Lack knocked on the window, and defendant and D.R. emerged from the van. Officer Lack asked defendant about the bullet holes on the van. Defendant initially said the van was not his and that he did not know the source of the bullet holes. Defendant then changed his story and said someone had shot the vehicle during the night, but that he did not know the shooter. Defendant next stated that his wife's family was crazy and that they shot the van. Eventually, defendant said his wife was having an "episode" and that he lost his temper and shot the vehicle.
Officer Lack asked defendant where the weapon was located, and defendant told him under the mattress in the back of the minivan. Officer Lack retrieved a loaded nine-millimeter handgun from under the mattress.
Defendant was placed under arrest. He spontaneously stated that his wife had been shot in the leg and that she needed medical attention. When Officer Lack asked D.R. if she had been shot in the leg, she declined medical assistance saying she had not been shot in the leg; she showed the officer her right leg. Officer Lack later learned that D.R. showed him the wrong leg; she had actually been shot in the left leg. D.R. was escorted to the hospital and treated.
That night, D.R. was interviewed by police. The recorded interview was played for the jury. Throughout the interview, D.R. repeatedly claimed that the shooting was an accident. She admitted that she and defendant had argued, but said that defendant did not intend to shoot her; the gun accidentally went off when she put her hand on his. Defendant had pointed the gun towards the floor and she pushed it away, causing it to accidentally discharge. Defendant then got out of the van and started shooting at the vehicle. After the shooting, they slept in the van. D.R. later admitted that before defendant shot her, he threatened to shoot her in the leg so that she could not leave him for another man. She did not want to call police because she thought he would go to jail.
D.R. failed to respond to a trial subpoena, and the court deemed her an unavailable witness. Her preliminary hearing testimony was read to the jury. During that testimony, D.R. claimed defendant had pulled out his gun because a car had pulled in behind them at the vista point and she was afraid they were going to be robbed. She was confused because she had not taken her prescribed anxiety medication for several days. According to D.R., the gun "just went off" when her hand touched defendant's as she turned around to look at the car behind them. The bullet ricocheted off the radio and into her leg. When she told him she had been shot, defendant apologized that it was an accident. Defendant got out of the car, and D.R. heard him shoot the tire once.
Defendant was also interviewed by police. During the interview, defendant stated that he and D.R. drove from Stockton to Reno to visit a friend. They searched for a hotel room, but because D.R. was "having some spells" and verbally abusive, they decided to return to Stockton. D.R. continued screaming at defendant. Defendant eventually pulled over at the vista point near Donner Lake on Interstate 80. While there, D.R. talked about demons and yelled into the air conditioning vent. Defendant grabbed two magazines for his handgun. He loaded a magazine and chambered a round in the gun. Defendant had the gun by his side, and as he was getting out of the car the gun accidentally discharged, striking D.R. in the leg.
The transcript of defendant's interview was admitted into evidence by stipulation, but because the actual recording was difficult to understand, it was not played for the jury.
After shooting D.R., defendant got out of the car and fired nine rounds into the van. He then reloaded and fired an additional 10 shots at the van. He was upset and could not take D.R.'s yelling anymore. Afterwards, he got back in the van and fell asleep with D.R.
California Highway Patrol Investigator Matthew Sprague testified at trial that there was no evidence that a bullet had struck the car's radio or front dash area. He further opined that defendant's statement about how he held the gun down by his side before the claimed accidental shooting was not consistent with the trajectory of the bullet fired within the minivan.
The jury found defendant guilty on all counts. The jury also found true the firearm use enhancements associated with count I (assault with a firearm) and count II (corporal injury of a spouse). Additionally, the jury found true great bodily injury enhancements associated with counts I and II. (§ 12022.7, subds. (a), (e).)
During closing argument, the prosecutor said the firearm use enhancements only applied to counts I and II and the jury was so instructed. Thus, the jury did not decide whether the arming enhancements alleged in the information for counts III and IV were true.
The section 12022.7, subdivision (a) enhancement was not included in the information, but the jury was asked to decide if the enhancement as well as the section 12022.7, subdivision (e) enhancement that was alleged in the information were true. (People v. Strickland (1974) 11 Cal.3d 946, 961 [defendant was "charged in the commission with the use of a firearm under section 12022.5, thus had notice that his conduct [could] also be in violation of section 12022' "]; see People v. Fialho (2014) 229 Cal.App.4th 1389, 1397 [section 11701, subdivision (e) does not require the prosecution to include specific statutory references for enhancement allegations; only the factual allegations underlying an enhancement must be pleaded unless the relevant statute provides otherwise].)
The court sentenced defendant to an aggregate prison term of 10 years, calculated as follows: the low term of three years for the count III shooting at an occupied vehicle offense, a consecutive one year (one-third the midterm) on the count II corporal injury to a spouse offense, the low term of three years for a personal use enhancement, plus the low term of three years for a great bodily injury enhancement. Pursuant to section 654, the court imposed and stayed the low term of two years on count I and imposed and stayed the low term of 16 months on count IV; the court also imposed and stayed the punishments on the remaining enhancements. Defendant timely appealed.
DISCUSSION
1.0 Firearm Enhancements
Defendant contends recent legislative amendments require remand for the court to consider whether to exercise newly granted discretion to strike the firearm enhancements found true by the jury. The People concede the legislation applies retroactively to defendant, and that remand is proper under the circumstances. We agree.
As we have noted, defendant's sentence in this case includes a three-year term for a section 12022.5 enhancement for personally using a firearm. When defendant was sentenced, the trial court had no discretion to strike the firearm enhancement. Recent amendments to section 12022.5, which became effective January 1, 2018, now give trial courts the discretion "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.5, subd. (c).)
We agree that Senate Bill No. 620 (2017-2018 Reg. Sess.) applies retroactively as explained in People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091. We also agree with defendant that the trial court must be afforded the opportunity to exercise this sentencing discretion. Unless the record reveals a clear indication that the trial court would not have dismissed or stricken the firearm enhancement even if at the time of sentencing it had the discretion to do so, remand is required. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.) Unlike the court in People v. Gutierrez (1996) 48 Cal.App.4th 1894, here, we cannot say "the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations" (id. at p. 1896). In sentencing defendant, the court stated: "I think [defendant] gets some benefit from me for his military service and for the diagnosis by Dr. Roeder. Yes, there are some aggravating facts here as well, but I think on balance his age, his military service, and his mental condition serve to justify a low term on count III . . . which will be the principal term." On this record, we must remand to afford the trial court the opportunity to exercise its new sentencing discretion.
2.0 Firearm Use Element of Offense of Shooting at an Occupied Motor Vehicle
Defendant contends the trial court erroneously imposed a three-year term for the section 12022.5 firearm use enhancement, which he claims was attached to count III (shooting at an occupied motor vehicle), the count chosen as the principal term by the court. He argues that the court could not have imposed the firearm use enhancement on count III because use of a firearm is an element of the section 246 offense.
Section 246 provides in relevant part: "Any person who shall maliciously and willfully discharge a firearm at an . . . occupied motor vehicle . . . is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year."
While we agree that firearm use is an element of the offense of shooting at an occupied motor vehicle under section 246 (People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2), and that the court could not have attached a firearm enhancement to count III (§ 12022.5, subd. (a) [firearm use enhancement does not apply if firearm use is an element of the underlying offense]), the record does not establish that the trial court imposed the section 12022.5 firearm use enhancement on count III when calculating defendant's sentence.
During closing, the prosecutor argued that the firearm enhancements applied only to counts I and II. The jury was similarly instructed. The jury verdict forms, moreover, have the firearm enhancements attached to counts I and II, but not to counts III and IV. The jury returned true findings on the section 12022.5 enhancements on counts I and II. No similar findings were made for counts III or IV. Finally, the amended abstract of judgment does not identify a particular count that is associated with the firearm enhancement imposed.
Nevertheless, as the People argue, it is apparent from the record that defendant's overall sentence was unlawful. We shall therefore remand for resentencing.
Section 1170.1 "refers to two kinds of enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense." (People v. Tassell (1984) 36 Cal.3d 77, 90 (Tassell), overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 390, 386-387, 401-402.) The first kind of enhancement—those that are related to the nature of the offender—do not attach to any particular counts and are added only once in calculating an aggregate sentence. (Tassell, at p. 90.) These include enhancements for prior convictions and prior prison terms under section 667.5. (Tassell, at p. 90.)
The second kind of enhancements—those that arise from the circumstances of the crime—are offense related, and are added to the counts to which they apply. (Tassell, supra, 36 Cal.3d at p. 90.) Offense-related enhancements include use of a firearm or infliction of great bodily injury (ibid.)—the enhancements the jury found true here for counts I and II, assault with a firearm (§ 245, subd. (a)(2)) and corporal injury to a spouse (§ 273.5, subd. (a)). "Enhancements of the second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence." (Tassell, at p. 90.)
Under section 1170.1, if a sentencing court elects to impose consecutive sentences when a defendant is convicted of multiple offenses, it must impose an aggregate sentence composed of a principal term and subordinate terms. (§ 1170.1, subd. (a).) The statute provides in relevant part: "The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Ibid., italics added.) "As used in Section 1170.1, the term 'specific enhancement' means an enhancement that relates to the circumstances of the crime. It includes, but is not limited to, the enhancements provided in Sections . . . 12022.5 . . . [and] 12022.7 . . . ." (§ 1170.11.)
In this case, the court designated count III as the principal term, designated count II as a subordinate term, and imposed and stayed the sentences on counts I and IV under section 654. The court imposed the low term of three years on count III and one year (one-third the midterm) on count II. For the firearm and great bodily injury enhancements, the court stated the following: "On the enhancement . . . [for section] 12022.5, that one is a 36-, 48-, 120-month triad. Consistent with the selection of low term on the principal term, I'm going to select low term there, 36 months consecutive." The court continued: "Then with respect to [section] 12022.7[, subdivision] (e) . . . that's a 36-, 48-, 60-month triad. I'm going to select the low term consistent with the choice on the principal term, that's an additional 36 months consecutive." Finally, "[w]ith respect to the enhancements for [section] 12022.7[, subdivision] (a) . . . that's 36 months, that's [section] 654 to the [subdivision] (e) enhancement, so it will be stayed pursuant to . . . section 654."
In light of the above, it appears the trial court failed to impose a term for each of the specific enhancements found true by the jury. The court was required to do so for each of the enhancements on counts I and II. (People v. Alford (2010) 180 Cal.App.4th 1463, 1469 [" 'If section 654 applies to a particular count, the court should impose the term normally applicable to the crime, including any count-specific conduct enhancements, then stay the sentence' " (original boldface)].)
As previously noted, for count I (assault with a firearm), the jury found true the enhancements for personal use of a firearm (§ 12022.5, subds. (a), (d)), personal infliction of great bodily injury (§ 12022.7, subd. (a)), and personal infliction of great bodily injury under circumstances of domestic violence (§ 12022.7, subd. (e)). The jury found the same three enhancements true for count II (corporal injury on a spouse). Although the jury found two firearm use enhancements true, the court only imposed a full low term of 36 months on one of those enhancements, and it is not clear from the record to which count the enhanced sentence applies. Even if we assume the court imposed the firearm use enhancement on count II, since the court stayed the sentence on count I, the court could not have imposed the full low term of three years because count II was designated as a subordinate term. (§ 1170.1, subd. (a) [subordinate terms are one-third the middle term and attached enhancements to those subordinate terms are one-third the enhancement term]; People v. Moody (2002) 96 Cal.App.4th 987, 994 [term for firearm use enhancement on subordinate term is one-third the term].) Accordingly, unless the court had designated count II as the principal term, it could not have sentenced defendant to a full low term of three years for the firearm use enhancement on that count.
While the personal infliction of great bodily injury enhancements (§ 12022.7, subds. (a), (e)) were found true as to both counts I and II, the abstract of judgment erroneously lists these enhancements as attached to count III.
Given the error, both parties agree, and we concur, that remanding the matter for resentencing is appropriate. Because a defendant's aggregate prison term under the determinate sentencing law " 'cannot be viewed as a series of separate independent terms, but rather must be viewed as one prison term made up of interdependent components,' " " '[t]he invalidity of some of those components necessarily infects the entire sentence . . . .' " (People v. Burns (1984) 158 Cal.App.3d 1178, 1183.) "If correction of a sentencing error may affect the trial court's discretionary decisions in determining an appropriate sentence, the remedy is to reverse and remand for resentencing." (People v. Edwards (2011) 195 Cal.App.4th 1051, 1060; People v. Rodriguez (2009) 47 Cal.4th 501, 509 ["Remand will give the trial court an opportunity to restructure its sentencing choices in light of our conclusion that the sentence imposed here violated section 1170.1's subdivision (f)."].) When reconfiguring the sentence upon remand, the trial court may not impose a sentence that exceeds defendant's original sentence of 10 years. (People v. Hanson (2000) 23 Cal.4th 355, 357 ["When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing."].)
3.0 Lesser Included Offense
Defendant contends his conviction on count IV, discharge of a firearm with gross negligence (§ 246.3), must be reversed because it is a lesser included offense of his conviction on count III for shooting at an occupied motor vehicle (§ 246). We agree.
"When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed." (People v. Sanders (2012) 55 Cal.4th 731, 736; People v. Montoya (2004) 33 Cal.4th 1031, 1034 [a judicially created exception to section 954, which generally allows conviction of multiple charges arising from a single act or course of conduct, "prohibits multiple convictions based on necessarily included offenses"].)
The crime of shooting at an occupied motor vehicle (§ 246—count III) cannot be committed without also committing a grossly negligent shooting (§ 246.3, subd. (a)—count IV). (People v. Ramirez (2009) 45 Cal.4th 980, 985; People v. Overman (2005) 126 Cal.App.4th 1344, 1358.) Thus, the latter is a necessarily included lesser offense of the former. (Ramirez, supra, at p. 990.)
In this case, the trial court, citing section 654, stayed the punishment on count IV because of the punishment imposed on count III. The trial court thus implicitly concluded that counts III and IV arose out of the same act or course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789 [section 654 prohibits punishment for multiple statutory violations based on the same act or same course of conduct].) The prosecutor also conceded that punishment on count IV should be stayed under section 654. Because defendant's count IV conviction is a necessarily included lesser offense to count III and arose out of the same act or course of conduct, the conviction must be reversed.
4.0 Fines and Fees Based on Reversed Count
Reversing defendant's count IV conviction for discharge of a firearm with gross negligence necessitates recalculating the court operations assessment under Penal Code section 1465.8 and the court facilities assessment under Government Code section 70373 imposed by the court.
Section 1465.8 requires a trial court to impose a $40 assessment for each criminal conviction. (§ 1465.8, subd. (a)(1).) Similarly, Government Code section 70373 mandates that a trial court impose a $30 court facilities assessment for each felony criminal conviction. (Gov. Code, § 70373, subd. (a)(1).) Because we reverse count IV, defendant has only three remaining felony convictions. Thus, defendant's total court operations assessment is reduced to $120 ($40 for each conviction), and his total court facilities assessment is reduced to $90 ($30 for each conviction).
5.0 Section 1202.5 Fine Unauthorized
Defendant contends the abstract of judgment improperly lists a $1,950 fine pursuant to section 1202.5, which is unauthorized as he was not convicted of any qualifying offenses under that statute and the trial court did not orally impose the fine during sentencing. We agree.
Section 1202.5, subdivision (a), which imposes an additional fine for local crime prevention programs, provides in part: "In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, subdivision (a) of Section 487a, or Section 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed." Here, defendant was not convicted of any of the enumerated offenses for which a local crime prevention program fine may be imposed.
Nor did the trial court orally pronounce such a fine at the sentencing hearing. (People v. Zackery (2007) 147 Cal.App.4th 380, 385 ["Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls."].) The $1,950 fine "per PC 1202.5" listed on the abstract of judgment was therefore unauthorized and must be stricken.
6.0 Correction of Minute Order and Abstract of Judgment
Defendant's contention that the abstract of judgment and sentencing minutes should be corrected to conform to the trial court's oral pronouncement of judgment is rendered moot given that the matter shall be remanded to the trial court for resentencing. Upon remand, the new abstract of judgment and sentencing minutes must conform to the court's oral pronouncement of judgment at the resentencing hearing. (People v. Zackery, supra, 147 Cal.App.4th at pp. 387-388 ["The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment."].)
DISPOSITION
Defendant's count IV conviction for discharge of a firearm with gross negligence is reversed and the $40 court operations assessment under Penal Code section 1465.8 and the $30 court facilities assessment under Government Code section 70373 on that count are stricken. The local crime prevention program fine under section 1202.5 is also stricken. Defendant's remaining convictions are affirmed. The sentence is vacated in its entirety and the matter is remanded to the trial court for resentencing so the court may consider whether to exercise its discretion to strike the section 12022.5 firearm enhancements found true by the jury, and to determine how to restructure defendant's sentence given the sentencing errors concerning the firearm use enhancements and the personal infliction enhancements found true as to both counts I and II, as identified in this opinion. Upon resentencing, the clerk shall prepare a new abstract of judgment that conforms to the court's oral pronouncement of judgment at the resentencing hearing, and shall forward a certified copy of the abstract of judgment to the Department of Corrections and Rehabilitation.
BUTZ, J. We concur: HULL, Acting P. J. MURRAY, J.