Opinion
D072507
07-27-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS ERNESTO SOLIZ, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith White and Laura A. Baggett, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN352641) APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Remanded for resentencing, and in all other respects affirmed. Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith White and Laura A. Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Jesus Soliz guilty of (1) one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), along with true findings that he inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a dangerous and deadly weapon (§ 1192.7, subd. (c)(23)); and (2) three counts of attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)). The trial court made a true finding that Soliz incurred six prior prison terms (§§ 667.5 subd. (b), 668), and it sentenced Soliz to prison for a term of 12 years.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Soliz contends (1) this matter should be remanded for resentencing because the trial court did not recognize it had the discretion to order that the sentence for the three counts of attempting to dissuade a witness from testifying be served concurrently to the term for the assault with a deadly weapon count; (2) pursuant to section 654, the trial court was required to stay the sentence on one of the counts of attempting to dissuade a witness from testifying; and (3) the trial court erred in staying rather than striking the sentence that it imposed for four of the six prior prison term enhancements. In addition to the contentions raised by Soliz, the People argue in their respondent's brief that the trial court imposed an unauthorized sentence as to one of the counts of attempting to dissuade a witness from testifying when it erroneously stayed that sentence pursuant to section 654.
We conclude that the trial court imposed an unauthorized sentence by staying the sentence on one count of attempting to dissuade a witness from testifying. We further agree with Soliz that the trial court was required to either impose or strike the prior prison term enhancements, but was not authorized to stay them. Soliz's remaining arguments lack merit. Accordingly, we remand this matter for resentencing, and in all other respects we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On November 12, 2015, Soliz stabbed Joshua C. in the neck in front of the mobile home of Soliz's girlfriend, R.G, apparently because Soliz believed that Joshua was intimately involved with R.G. Surveillance video from the mobile home park recorded the assault, and several witnesses testified at trial to witnessing the assault, including R.G. who was standing nearby when the assault occurred. R.G. spoke with police shortly after witnessing the attack.
We use first names and initials to refer to the victims and witnesses involved in this matter in order to protect their privacy, and we intend no disrespect by doing so.
While Soliz was in jail awaiting trial, he telephoned R.G. on three separate occasions to ask her not to testify. In a February 2, 2016 telephone call, Soliz stated several things to R.G. related to her upcoming trial testimony. Among other things, he told her not to show up to trial. He also suggested that if she did attend the trial, she should testify in a certain way. In a February 7, 2016 telephone call, Soliz made similar statements to R.G. about not showing up to the trial, and he told her to testify in a certain way. In a February 17, 2016 telephone call, Soliz repeatedly told R.G. not to testify.
Soliz stated: "Look it is better that you don't come. Try not to come. You know what I mean?" and "[i]t would be better if you didn't go."
Specifically, Soliz told R.G. to state "that you were drinking that day, and that way they can drop all charges," "[a]nd tell them that you don't see me with anything in my hands. That I didn't have anything in my hands, nothing," and "[t]hat you were mad, and that you said it was me because you were mad at me because I was with someone else."
Soliz told R.G., "hey babe don't come—don't go," and "it would be best if you didn't come."
Soliz stated, "just say that you were mad at me and that's why you told them that," and "look just tell them, I don't even remember. I was fucken—man I was high as fuck before that fool got there."
Among other things Soliz stated: "[Y]ou can't come babe. You know what I mean? . . . Don't go, don't go babe." "Hey, because you are the only witness—so if no one goes, then no one goes. You know what I mean?" "Well, just don't go babe." "Hey, you can't go babe. Alright?"
Soliz was charged with attempted murder (§§ 187, subd. (a), 664), assault with a deadly weapon (§ 245, subd. (a)(1)), and three counts of attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)). It was also alleged that Soliz incurred six prison priors. (§§ 667.5, subd. (b), 668.)
The jury found Soliz not guilty of attempted murder and the lesser included offense of attempted voluntary manslaughter, but it found him guilty of assault with a deadly weapon and three counts of attempting to dissuade a witness from testifying. With respect to the assault count, the jury also found that Soliz inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a dangerous and deadly weapon (§ 1192.7, subd. (c)(23)). The trial court made a true finding that Soliz incurred six prison priors. (§§ 667.5, subd. (b), 668.)
At sentencing, the trial court stated that it was imposing a middle-term sentence of three years on the assault count, along with a three-year sentence for the great bodily injury enhancement (§ 12022.7, subd. (a)). On the three counts of attempting to dissuade a witness from testifying (counts 3, 4, and 5), the trial court stated that it was imposing the middle term of two years for each of those counts, but it would "stay" the sentence on count 5. The abstract of judgment states that the stay of the sentence on count 5 was pursuant to section 654. With respect to the one-year enhancements for each of the six prior prison terms (§ 667.5, subd. (b)), the trial court stated it was imposing all six one-year terms, but would "stay punishment" on four of the prior prison term enhancements. As a result, Soliz was sentenced to a total prison term of 12 years.
II.
DISCUSSION
A. The Record Does Not Establish That the Trial Court Failed to Understand Its Discretion to Impose Concurrent Sentences on Counts 3, 4 and 5
In counts 3, 4 and 5, Soliz was convicted of attempting to dissuade a witness from testifying in violation of section 136.1, subdivision (a)(2), which the trial court sentenced as subordinate terms to the principal term for assault with a deadly weapon. Soliz contends that the trial court did not understand that it had the discretion to order that the sentences for those counts be served concurrently with the sentence for the assault with a deadly weapon count, and that we should accordingly remand this matter for the trial court to decide how to exercise its discretion.
As background to this issue, we first review the unique sentencing rules applicable to convictions for attempting to dissuade a witness from testifying in violation of section 136.1. The generally applicable sentencing provisions for determinate prison terms state that "[t]he 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." (§ 1170.1, subd. (a).) However, the Penal Code provides an exception for convictions under section 136.1, stating that each consecutive sentence shall consist of a full middle-term sentence. Specifically, as relevant here, section 1170.15 states that "if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 . . . and that was committed against . . . a witness or potential witness with respect to . . . the first felony, . . . the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed . . . ." Case law establishes that "[t]his language requires the trial court to impose the full middle term of imprisonment only if a consecutive sentence is imposed. The section does not require the trial court to impose a consecutive sentence, but instead indicates that if the trial court chooses consecutive sentencing it must impose a full-term sentence for the witness dissuasion count." (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479, italics added.)
Soliz contends that, based on the sentencing proceedings, it is apparent that the trial court did not understand that it had discretion to impose a concurrent sentence of one-third the middle-term sentence on counts 3, 4 and 5 instead of a consecutive sentence based on the full middle term. As we will explain, based on the record of the sentencing proceedings, we disagree.
As an initial matter, we note both the probation officer's report and Soliz's sentencing brief failed to identify the requirement for full middle-term sentences for counts 3, 4, and 5, as provided in section 1170.15, and instead assumed that the generally applicable approach of imposing a sentence of one-third the middle-term sentence for subordinate counts was applicable. Based on that misunderstanding of the law, Soliz's sentencing brief requested that the trial court impose a sentence of one-third the middle term for count 3, and that it order the sentences on counts 4 and 5 to run concurrently, for a total prison term on all counts of six years, five months.
In contrast, the People's sentencing memorandum correctly set forth the law by identifying that section 1170.15 applied to counts 3, 4 and 5, and it also suggested that the trial court had the discretion to impose consecutive or concurrent sentences for those counts. Specifically, the People stated that "[p]ursuant to . . . section 1170.15, the defendant shall be sentenced to the full middle term, which is two years, for each violation of . . . section 136.1[, subdivision] (a)(2) that is imposed to run consecutive to the principal term." (Italics added.) Further, the People stated that Soliz's "subordinate term exposure" was six-years for counts 3, 4, and 5, not that the trial court was required to impose a six-year consecutive sentence.
At the sentencing hearing, the trial court first discussed the issue of the sentence to impose for counts 3, 4, and 5 in the context of observing that defense counsel and the probation officer's report made a mistake on that issue by not identifying section 1170.15. The trial court stated, "Before I let you argue, I do believe that [the prosecutor] has correctly pointed out that with regard to the [section] 136 in this case, that it would—if I were to impose them, it would be full strength, not one-third the midterm." (Italics added.) Implicitly acknowledging that even under section 1170.15, it could still order the sentence on counts 4 and 5 to run concurrently to the sentence on counts 2 and 3, as defense counsel had suggested, the trial court stated, "So that would even potentially change what I could do under your proffered resolution, [defense counsel], which would, by my calculations, bring yours to not six years, five months, but eight years." During defense counsel's argument at the sentence hearing, he asked the trial court to order that the sentence on counts 3 through 5 run concurrently.
Later during the hearing, the trial court stated that it believed the People's sentencing memorandum had "correctly stated the law."
After hearing argument, the trial court sentenced Soliz on counts 3, 4 and 5 as follows: "I do agree that when you have crimes which Mr. Soliz was convicted of, like counts 3, 4 and 5, trying to dissuade a witness, there's a particular issue that the legislature tried to address by removing the one-third-the-midterm analysis and imposing those as full strength. In this particular . . . case . . . , Mr. Soliz was convicted of three separate counts. I am going to impose the middle term on Count 3 of two years, and that will be full strength to the six. I am also, for a separate date of offense, going to impose two years for Count 4, for another two years. I could, but am choosing not to, do the same with Count 5. I will impose the two years but stay that."
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. . . . Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. . . . [¶] Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. . . . Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. . . . ' "[A] trial court is presumed to have been aware of and followed the applicable law." ' " (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229 (Brown), citations omitted.)
Here, we see no indication in the proceedings we have recounted above that the trial court believed that it lacked the discretion to order that the sentences for counts 3, 4 and 5 be served concurrently. Indeed, several items in the record suggest that the trial court understood it had that discretion. First, the People's sentencing memorandum, which the trial court described as a correct recitation of the law, appeared to indicate that the trial court did have such discretion. Second, when defense counsel requested that the trial court order the sentences to run concurrently, the trial court commented that if it did so, the total sentence for all of the counts would be eight years. Moreover, at no point did the trial court make any comment suggesting that it believed it was required to impose consecutive sentences for counts 3, 4 and 5. At most, because the trial court did not expressly address the issue, the record is silent on that matter, but we will not presume error from a silent record. (Brown, supra, 147 Cal.App.4th at p. 1229.) Accordingly, we reject Soliz's contention that the trial court did not understand that it had the discretion to order concurrent sentences on counts 3, 4 and 5. B. The Trial Court Was Not Required to Stay the Sentence on Count 4 Pursuant to Section 654
As we have explained, for each of Soliz's three convictions for attempting to dissuade a witness from testifying in counts 3, 4 and 5 (§ 136.1, subd. (a)(2)), the trial court imposed a two-year sentence, but only on count 5 did it order that the sentence be stayed. The abstract of judgment states that count 5 was stayed pursuant to section 654. Soliz contends that the trial court erred because it did not stay the sentence on count 4 pursuant to section 654 as well. As we will explain, section 654 does not apply here, and accordingly, Soliz's contention lacks merit.
Section 136.1, subdivision (a)(2) makes it a crime to "[k]nowingly and maliciously attempt[] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." Soliz was convicted of three counts of violating section 136.1, subdivision (a)(2) based on telephone conversations he had with R.G. on three different days (February 2, 7, and 17, 2016). During each separate telephone call, Soliz told R.G. that she should not show up to testify at trial.
Under section 654, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Under section 654, "the relevant question is typically whether a defendant's ' "course of conduct . . . comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." ' " (People v. Correa (2012) 54 Cal.4th 331, 335 (Correa).) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (Id. at p. 336.) Where section 654 applies, "the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Soliz contends that "the sentence on count 4 . . . should have been stayed pursuant to section 654 since it comprised an indivisible course of conduct committed pursuant to the same criminal intent or objective as in count 3."
Here, for two independent reasons, section 654 does not apply to bar separate punishment for Soliz's convictions on count 3 and count 4.
First, as our Supreme Court has held, "[b]y its plain language section 654 does not bar multiple punishment for multiple violations of the same criminal statute." (Correa, supra, 54 Cal.4th at p. 334.) Counts 3 and 4 are convictions for violation of the same criminal statute, namely section 136.1, subdivision (a)(2). Accordingly, section 654 does not support Soliz's contention that the trial court should have stayed the sentence on count 4 in light of the sentence imposed on count 3.
Second, "if a series of acts are committed within a period of time during which reflection was possible . . . section 654 does not apply." (People v. Kelly (2016) 245 Cal.App.4th 1119, 1136, citation omitted.) "Under section 654, 'a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. . . .' . . . This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken." (People v. Gaio (2000) 81 Cal.App.4th 919, 935, citations omitted.) "Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Here, the trial court could reasonably conclude that section 654 did not apply because the telephone calls that gave rise to count 3 and count 4 were separated by five days, giving Soliz ample time to reflect and renew his intent before committing the next offense of attempting to dissuade R.G. from testifying.
In sum, we conclude that there is no merit to Soliz's contention that the sentence on count 4 should have been stayed pursuant to section 654. C. The Trial Court Imposed an Unauthorized Sentence in Staying the Sentence on Count 5 Pursuant to Section 654
The trial court stated at sentencing that it was staying the two-year sentence that it imposed on count 5, and the abstract of judgment indicates that the stay was pursuant to section 654. In their respondent's brief, the People point out that for the same reason that it would be improper for the trial court to have stayed the sentence on count 4 pursuant to section 654, it was also improper for the trial court to stay count 5 pursuant to section 654. The People contend that the trial court accordingly imposed an unauthorized sentence by staying count 5, and we should remand for resentencing on that count. As we will explain, we agree.
As an initial matter, we note that the legal analysis we set forth above concerning the inapplicability of section 654 to count 4 applies equally to count 5. Both count 4 and count 5 are convictions for attempting to dissuade a witness from testifying in violation of section 136.1, subdivision (a)(2). Further, as with count 4, the telephone call that forms the factual predicate for count 5 took place several days after the telephone calls that gave rise to the other counts of attempting to dissuade a witness from testifying. Accordingly, for the same reasons we have set forth with respect to count 4, there is no legal basis for the trial court to have concluded that a stay of sentence pursuant to section 654 is applicable to count 5.
As our Supreme Court has explained, "[i]t is well settled . . . that the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays . . . execution of a sentence under section 654." (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) "[W]hen the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court. When the mistake is discovered while the defendant's appeal is pending, the appellate court should remand the case for a proper sentence." (People v. Benton (1979) 100 Cal.App.3d 92, 102.) Although Soliz argues that we should not disturb the sentence because the People did not file an appeal from the sentence, that argument lacks merit. "When a trial court pronounces a sentence that is unauthorized by law, the People may raise the point on defendant's appeal as they did here." (People v. Vizcarra (2015) 236 Cal.App.4th 422, 431.)
Accordingly, because the trial court imposed an unauthorized sentence by staying the sentence on count 5 pursuant to 654, we will remand to the trial court so that it may impose a proper sentence on count 5. D. The Sentence on Four of the Prior Prison Term Enhancements Should Have Been Stricken Rather Than Stayed
As the People point out, it is possible that the trial court intended to order that the sentence on count 5 run concurrently to the sentence on the other counts. We express no view on how the trial court should exercise its sentencing discretion on remand. --------
Soliz's final contention is that the trial court erred in ordering that the one-year sentence enhancements under section 667.5, subdivision (b) for four of his six prior prison terms be stayed rather than ordering that they be stricken.
The trial court may strike a prior prison term enhancement in the interest of justice. (§ 1385, subd. (c); People v. Garcia (2008) 167 Cal.App.4th 1550, 1561.) "Prior prison term enhancements may be imposed or stricken but not stayed." (People v. Jordan (2003) 108 Cal.App.4th 349, 368, italics added; see also People v. Jones (1992) 8 Cal.App.4th 756, 758 ["such an enhancement, if not imposed, must be stricken"].) "The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal." (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
Here, based on the legal principles set forth above, the People agree that the trial court was required to either impose or strike the prior prison term enhancements, but it was not authorized to stay them. Accordingly, we direct that, on remand, the trial court should decide whether to impose or strike the enhancements on the prior prison terms that it erroneously ordered to be stayed.
DISPOSITION
This matter is remanded for resentencing consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR: NARES, Acting P. J. GUERRERO, J.