Opinion
B253135
02-17-2015
The PEOPLE, Plaintiff and Respondent, v. Tyrone TITTLE et al., Defendants and Appellants.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant Tyrone Tittle. Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Jackson. Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant Tyrone Tittle.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Jackson.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
ROTHSCHILD, P.J.Tyrone Tittle and Kevin Jackson appeal from their convictions and sentences on charges of attempted murder, shooting at an inhabited dwelling, and related offenses. We agree that certain sentence enhancements should be stricken and a clerical error should be corrected, but we otherwise affirm.BACKGROUND
The amended information charged Tittle and Jackson with one count of attempted willful, deliberate, and premeditated murder under Penal Code section 187, subdivision (a), and section 664 (count 1) and one count of shooting at an inhabited dwelling under Penal Code section 246 (count 2). It charged each defendant with one count of possession of a firearm by a felon, in violation of subdivision (a)(1) of section 29800 (count 3 as to Jackson and count 4 as to Tittle). It further charged Tittle with one count of attempting to elude a pursuing peace officer with willful or wanton disregard for the safety of persons or property, in violation of subdivision (a) of Vehicle Code section 2800.2 (count 5). It also included firearm use enhancements pursuant to section 12022.53, subdivisions (b), (c), (d), and (e)(1), gang enhancements pursuant to section 186.22, and various prior conviction and prior prison term enhancements.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
Apparently because of a typographical error, counts 3 and 4 of the amended information refer to section 22900 instead of section 29800. (See also Part VI, post .)
Both defendants pleaded not guilty and denied all allegations. The prior convictions allegations were bifurcated, and the charges were tried to a jury. The jury found Tittle and Jackson guilty on all counts and found as to both defendants that the attempted murder in count 1 was willful, premeditated, and deliberate. Also as to count 1, the jury found true the allegations that Jackson personally used and personally and intentionally discharged a handgun within the meaning of section 12022.53, subdivisions (b) and (c). The jury was unable to reach a verdict as to the other special allegations. The prior conviction allegations were tried to the court, which found them true.
The court sentenced Tittle to an indeterminate term of 21 years to life plus a consecutive determinate term of 21 years 4 months, calculated as follows: an indeterminate term of 21 years to life on count 1 (7 years to life, doubled for a prior strike, plus 5 years for a prior serious felony, plus 2 years for two prior prison terms); plus a determinate term of 13 years on count 4 (the upper term of 3 years, doubled for a prior strike, plus 5 years for a prior serious felony; plus 2 years for two prior prison terms); plus a determinate term of 8 years 4 months on count 5 (1 year 4 months, plus 5 years for a prior serious felony, plus 2 years for two prior prison terms). The court also imposed a 7–year sentence for count 2 but stayed it pursuant to section 654. The court imposed various statutory fines and fees, ordered Tittle to provide DNA samples, and credited him with 268 days of presentence custody (234 days actual time and 23 days good time/work time).
The court sentenced Jackson to an indeterminate term of 41 years to life plus a consecutive determinate term of 13 years, calculated as follows: an indeterminate term of 41 years to life on count 1 (7 years to life, doubled for a prior strike, plus 20 years for the firearm enhancement, plus 5 years for a prior strike, plus 2 years for two prior prison terms); plus a determinate term of 13 years on count 3 (upper term of 3 years, doubled for a prior strike, plus 5 years for a prior serious felony; plus 2 years for two prior prison terms). The court also imposed a 7–year sentence for count 2 but stayed it pursuant to section 654. The court imposed various statutory fines and fees, ordered Jackson to provide DNA samples, and credited him with 380 days of presentence custody (335 days actual time and 45 days good time/work time).
The evidence introduced at trial showed the following facts: On January 1, 2013, Dachia Jackson was attending a birthday celebration for her mother at her grandmother's house. There were about 30 or 40 people attending the celebration, including children playing outside in front and in back.
At approximately 4:00 p.m., a silver Mitsubishi SUV arrived. Tittle was the driver, Jackson was in the front passenger seat, and there were two other young men in the car. Tittle's mother testified that earlier in the day, Tittle, Jackson, and two other young men were using her silver Mitsubishi SUV to help her move to a new residence. She was following them in another car but lost them when she stopped at a red light, and she did not see her SUV again until she picked it up at the impound lot several days later.
Jackson got out of the car and was holding a gun in his hand. Two of the people attending the party (one was Jackson's cousin; the other had grown up with Jackson) confronted Jackson and asked him to leave. Jackson got back in the SUV, which then drove away.
The SUV returned a few minutes later, with Tittle still driving. Jackson got out and fired multiple shots toward the yard, wounding one person in the leg. A witness testified that just before Jackson started shooting, Tittle said to him, “Spray everything.” Another witness testified that she observed the driver of the SUV holding a rifle but did not see it fired.After one of the witnesses called 911, police officers responded to the scene of the shooting and then broadcast by radio a description of the suspects and the SUV. Other officers, who were on their way to respond to the 911 call, then heard the description and spotted a silver SUV matching it. The officers followed, activated the patrol car's lights and siren, and attempted to pull over the SUV, but the SUV sped away. In the course of the chase, the SUV ran two red lights and was going approximately 60 miles per hour in a 35 mile per hour zone.
The SUV eventually crashed, and its occupants scattered. Three of them were detained near the scene of the crash, but the fourth (Tittle) was not arrested until April 2013. Officers searched the SUV after the crash and found a rifle and a submachine gun on the floor in the back seat.
DISCUSSION
See footnote *, ante .
III. Recidivism Enhancements for Each of Multiple Determinate Sentences
Tittle argues that the trial court erred by adding sentence enhancements for prior prison terms (under section 667.5) and a prior serious felony (under section 667, subdivision (a)) to the determinate sentences imposed for both counts 4 and 5. According to Tittle, those enhancements should have been added to only the base term, which was imposed for count 4. We disagree.
Tittle's argument is based largely on People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1, which concerned multiple determinate sentences imposed pursuant to section 1170.1. Tassell held that, in that context, enhancements based on the characteristics of the current offense (such as firearm use) could be added to the determinate term for each applicable count, but enhancements based on the defendant's status (such as prior convictions or prior prison terms) could be added only once, to the aggregate sentence. (Tassell, supra, 36 Cal.3d at p. 90, 201 Cal.Rptr. 567, 679 P.2d 1.)
Tassell is distinguishable, however, because Tittle was sentenced under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12), not under section 1170.1. In People v. Williams (2004) 34 Cal.4th 397, 19 Cal.Rptr.3d 619, 98 P.3d 876, the Supreme Court explained that “[t]he Three Strikes Law, unlike section 1170.1, does not draw any distinction between status enhancements, based on the defendant's record, and enhancements based on the circumstances of the current offenses, and the Three Strikes Law generally discloses an intent to use the fact of recidivism to separately increase the sentence imposed for each new offense.” (Id. at pp. 404–405, 19 Cal.Rptr.3d 619, 98 P.3d 876.) Accordingly, the Court held that “under the Three Strikes Law, section 667(a) enhancements are to be applied individually to each count of a third strike sentence.” (Id. at p. 405, 19 Cal.Rptr.3d 619, 98 P.3d 876.)
Although Williams is not directly on point, because it dealt with indeterminate sentences imposed on third strike offenders rather than determinate sentences for second strike offenders, its reasoning strongly suggests that the result for second strike offenders would be the same. Moreover, some of the Court's discussion in Williams directly addressed second strike sentences, noting that under the Three Strikes Law, “[f]or a defendant with a single qualifying prior conviction [i.e., a second strike offender], the sentence for each new offense is double what it otherwise would be.” (Williams, supra, 34 Cal.4th at p. 404, 19 Cal.Rptr.3d 619, 98 P.3d 876.) Again, the Court's discussion confirms the statutory intent to increase the sentence for each of the current qualifying offenses on the basis of the defendant's recidivism, even for second strike offenders.
People v. Misa (2006) 140 Cal.App.4th 837, 44 Cal.Rptr.3d 805 (Misa ) took that approach. Misa applied Williams and held when a second strike offender received both an indeterminate sentence (for one count of torture) and a determinate sentence (for one count of assault), a prior conviction enhancement under section 667, subdivision (a), was properly added to each sentence. (Misa, supra, 140 Cal.App.4th at p. 847, 44 Cal.Rptr.3d 805.)
Misa too is distinguishable, because it did not address the imposition of recidivism enhancements for each of several determinate sentences. But we conclude that the reasoning of Williams compels the same result here as in Misa . Tittle was sentenced under the Three Strikes Law, not under section 1170.1. Williams is therefore controlling, and Tassell is inapplicable. Under Williams, the intent of the Three Strikes Law is to impose recidivism enhancements for each of the defendant's current qualifying offenses, in the case of both third strike offenders and second strike offenders. We therefore conclude that the trial court properly imposed prior conviction and prior prison term enhancements as to both counts 4 and 5.
We note that this issue is presently pending before the California Supreme Court in People v. Sasser, review granted May 14, 2014, S217128.
See footnote *, ante .
DISPOSITION
As to counts 3, 4, and 5, the five-year enhancements under subdivision (a)(1) of section 667 are stricken. The trial court is directed to enter an order modifying, nunc pro tunc, the minute orders of November 19, 2013, to reflect that count 3 (Jackson) and count 4 (Tittle) charged violations of subdivision (a)(1) of section 29800. The court shall also prepare new abstracts of judgment, correcting those sentencing and clerical errors, and forward copies to the Department of Corrections and Rehabilitation.
We concur:
JOHNSON, J.
Judge of the Los Angeles Superior Court, Assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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