Opinion
E079995
11-30-2023
THE PEOPLE, Plaintiff and Respondent, v. OCTAVIANO MENDOZA SANCHEZ, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI21001163, Shannon L. Faherty, Judge. Affirmed in part, vacated in part, and remanded in part with directions.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I. INTRODUCTION
Defendant and appellant Octaviano Sanchez punched his girlfriend in the face and attacked her ex-boyfriend with an axe. When he was arrested days later, police found a small .22 caliber gun in his car. A jury convicted him of various offenses, and the trial court sentenced him to 23 years, four months in prison. Defendant argues the trial court erroneously instructed the jury and committed five sentencing errors, three of which the People agree with. We affirm the judgment of conviction, but vacate defendant's sentence, and remand with instructions.
II. FACTUAL AND PROCEDURAL BACKGROUND
At the time of the incident, A.R. had been dating defendant for about a year. A.R. went to visit her storage locker with her ex-boyfriend, O.B., who was going to help her carry items to the locker and take a bicycle in the locker that A.R. no longer wanted. While they were at the storage facility, defendant appeared and began yelling at O.B. He accused A.R. of cheating on him with O.B., went to his vehicle, and returned with a 19-inch brush axe. O.B. pulled out a small hatchet from his waistband to defend himself, but he dropped it when defendant swung at him. Defendant punched O.B. and struck him with the axe multiple times in the head, then punched A.R. in the face. After he was taken to the hospital, O.B. received 19 staples on the back of his head. When police arrested defendant three days later, they found a .22 caliber small pocket derringer in his vehicle.
A jury convicted defendant of attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), possessing a firearm as a felon (§ 29800, subd. (a)(1); count 3), possessing a concealed firearm in a vehicle (§ 25400, subds. (a)(1), (c)(1); count 4), and misdemeanor domestic battery (§ 243, subd. (e)(1); count 6). As to counts 1 and 2, the jury found true the enhancement allegation that O.B. suffered great bodily injury (§ 12022.7, subd. (a)). The trial court later found true the allegation that defendant had suffered a strike prior (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
The trial court imposed a total aggregate sentence of 23 years, four months, calculated as follows: 18 years for count 1 (the upper term of 9 years, doubled because of the strike prior), plus 3 years for the great bodily injury enhancement alleged as to that count, 16 months for count 3 (1/3 the midterm of 2 years, doubled because of the strike prior), and 365 days for the misdemeanor domestic battery. Counts 2 and 4, as well as the enhancement alleged as to count 2, were stayed under section 654. The court also imposed fines and assessments totaling $580.
III. DISCUSSION
Defendant argues the trial court erred by: (1) erroneously instructing the jury as to count 4 by failing to define the term "firearm capable of being concealed on the person," (2) declining to dismiss one of the two great bodily injury enhancements on counts 1 and 2, (3) imposing a sentence of 365 days instead of 364 days on count 6, (4) imposing an unauthorized sentence that included misdemeanor punishment as part of the total aggregate felony prison sentence, (5) imposing the fines and assessments, and (6) referring to one-third consecutive middle terms for counts 2 and 4, which were stayed under section 654, in the abstract of judgment.
The People concede the instructional error but argue it was harmless. We agree. Although we disagree with defendant that the trial court had to dismiss one of the great bodily enhancements, the trial court had the discretion to do so under certain circumstances. For the reasons outlined below, we find it appropriate to vacate his sentence and remand so the trial court can exercise its discretion and decide whether to dismiss one of the great bodily injury enhancements and resentence defendant accordingly. On remand, defendant may raise with the trial court the sentencing issues he has raised on appeal.
A. Instructional Error
Count 4 charged defendant with possessing a concealed firearm in a vehicle. (§ 25400, subds. (a)(1), (c)(1).) CALCRIM No. 2521, as given to the jury, correctly instructed the jury on the elements of the offense as follows: "To prove that the defendant is guilty of this crime, the People must prove that: (1) the defendant carried within a vehicle a firearm capable of being concealed on the person; (2) the defendant knew the firearm was in the vehicle; (3) the firearm was substantially concealed within the vehicle; and (4) the vehicle was under the defendant's control or direction." The instruction also stated, "The term firearm capable of being concealed on the person is defined in another instruction."
But that term was not defined in any of the other instructions. The parties thus agree that the trial court should have provided a definition of the term consistent with section 16530, which provides that a firearm capable of being concealed upon the person includes "any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in length." (§ 16530.)
We conclude, however, that the instructional error was harmless beyond a reasonable doubt. (See People v. Flood (1998) 18 Cal.4th 470, 501-503, 505.) The gun found in defendant's vehicle was a ".22 caliber derringer firearm" manufactured by "Davis Arms." There was testimony that it had "a very small barrel" and was a "tiny little handgun." The prosecutor called it "a very small firearm," and the trial court described it as "capable of being concealed." The gun was brought into the courtroom and shown to the jury, and a picture of it was admitted into evidence, showing that it was about 2.5 inches long. No reasonable jury could possibly find that the gun was longer than 15 inches long and thus incapable of being concealed on defendant's person. The trial court's error in failing to define "capable of being concealed on the person" was therefore harmless beyond a reasonable doubt.
B. Enhancements
At sentencing on August 26, 2022, the trial court imposed a total aggregate sentence of 23 years, four months, which included three years for the great bodily injury enhancement alleged as to count 1 and a stayed three-year term for the same enhancement alleged as to count 2.
Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) amended section 1385 to include subdivision (c). (Stats. 2021, ch. 721.) Section 1385, subdivision (c)(1) provides that "[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." (§ 1385, subd. (c)(1); Stats. 2021, ch. 721.) Section 1385, subdivision (c)(2) then provides: "In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others." As relevant here, one of the mitigating circumstances is: "Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed." (§ 1385, subd. (c)(2)(B).)
Defendant argues that the trial court was required to dismiss one of his two great bodily injury enhancements under section 1385, subdivision (c)(2)(B). In his view, the court had no discretion to stay one of the enhancements, and instead had to "dismiss all enhancements beyond a single enhancement." We disagree.
Section 1385 "subdivision (c)(2)(B) does not obligate trial courts to automatically dismiss all but one enhancement whenever a jury finds multiple enhancements to be true." (People v. Walker (2022) 86 Cal.App.5th 386, 396, review granted Mar. 22, 2023, S278309.) Other courts, including this court, have concluded that similar "shall" language in section 1385, subdivision (c)(2)'s list of mitigating circumstances likewise does not mandate trial courts to dismiss all but one enhancement. (See e.g., People v. Anderson (2023) 88 Cal.App.5th 233, 241, review granted Apr. 19, 2023, S278786 ; People v. Lipscomb (2022) 87 Cal.App.5th 9, 17-18; People v. Mendoza (2023) 88 Cal.App.5th 287, 291.) We agree with these decisions and follow them here. We therefore conclude the trial court was not required to dismiss one of defendant's two enhancements under section 1385, subdivision (c)(2)(B), as defendant insists.
Because the California Supreme Court granted review of this case, we cite it only for its persuasive value. (Cal. Rules of Court, rule 8.1115(e)(1).)
See footnote 2, supra.
We note, however, that under People v. Lipscomb, supra, 87 Cal.App.5th at page 285, and this court's decision in People v. Mendoza, supra, 88 Cal.App.5th at page 297, a trial court need not dismiss an enhancement under section 1385, subdivision (c)(2) if the court finds that dismissal would endanger public safety. Defendant does not acknowledge these holdings or the "endanger public safety" language in section 1385, subdivision (c)(2). In fact, he does not mention "public safety" in his briefs, even though the People argue in their respondent's brief that the trial court properly declined to dismiss one of defendant's enhancements because the court impliedly found that doing so would endanger public safety. We nonetheless will address the issue sua sponte.
The trial court here did not expressly find that dismissing one of defendant's enhancements would endanger public safety. When ruling on defendant's motion to dismiss one of the enhancements under section 1385, the trial court stated, "Having heard this trial, the injuries that were suffered by the victim were quite significant. And I think that the great bodily injury enhancement is -- well, I think that it is appropriate to impose the time from it and I will decline your invitation to dismiss per [section] 1385."
Although we agree with the People that the trial court's ruling could suggest that the court impliedly found that dismissing one of the enhancements would endanger public safety, the ruling is not clear. We find it appropriate to remand the case to the trial court to determine whether to dismiss one of the enhancements unless the court finds that dismissal would endanger public safety.
In light of this conclusion, we vacate defendant's sentence and remand for resentencing. We therefore need not address defendant's remaining arguments, all of which concern his now-vacated sentence. He may raise the issues with the trial court on remand if he elects to do so.
IV. DISPOSITION
The judgment of conviction is affirmed, but defendant's sentence is vacated, and the case is remanded for resentencing consistent with this opinion. After the trial court resentences defendant, the clerk of the superior court is directed to issue an amended abstract of judgment reflecting these modifications and send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: RAMIREZ, P. J., MENETREZ, J.