Opinion
F077982
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. JOEL VARGAS, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DF012197A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
BACKGROUND
As summarized in our prior opinion, defendant Joel Vargas, an active member of a criminal street gang, threatened the victim in this case with a firearm. (People v. Vargas (Apr. 27, 2018, No. F073682) [nonpub. opn.].) Following a jury trial, defendant was convicted of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); count 1), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), carrying a loaded firearm in public as an active participant in a criminal street gang (§ 25850, subd. (c)(3); count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4). The jury also found true the gang enhancement allegation attached to count 1 (§ 186.22, subd. (b)(1)); that defendant used a firearm within the meaning of section 667, subdivision (e)(2)(C)(iii), as to count 2; and the enhancement allegations for personal use of a firearm attached to counts 1 and 4 (§ 12022.5, subd. (a)).
All further statutory references are to the Penal Code unless otherwise noted.
Effective June 27, 2017, section 29800 was amended to extend application of subdivision (a)(1) to persons with an outstanding felony warrant. (Stats. 2017, § 44, pp. 58-59.)
Defendant's trial counsel entered a waiver of trial by jury on the prior conviction allegations (§ 1025, subd. (b)) and, in a bifurcated proceeding, the trial court found true that defendant suffered a prior juvenile conviction for assault with a firearm (§ 245, subd. (a)(2)) within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and served two prior prison terms (§ 667.5, former subd. (b)).
The trial court also found true that defendant suffered a separate, prior conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) within the meaning of section 667, subdivisions (a) and (e). However, upon realizing defendant's conviction did not qualify as a strike because he pled guilty to assault by means of force likely to cause great bodily injury rather than assault with a deadly weapon, the court vacated its true finding and granted the prosecutor's motion to strike the allegation.
The trial court sentenced defendant to the upper term of nine years on count 1, doubled to 18 years for the prior strike conviction, plus additional consecutive terms of four years for the gang enhancement, four years for personal use of a firearm, and two years for serving two prior prison terms, for a total determinate prison term of 28 years. On counts 2 and 3, the court imposed the upper term of three years for each, doubled to six years for the prior strike conviction, plus additional consecutive terms of two years for serving two prior prison terms, stayed pursuant to section 654. On count 4, the court imposed the upper term of three years, doubled to six years for the prior strike conviction, plus additional consecutive terms of four years for the personal use of a firearm and two years for serving two prior prison terms, stayed under section 654.
In the first appeal, we rejected defendant's claims that the jury's finding he used a firearm in the commission of count 2 was unsupported by substantial evidence and that his jury trial waiver on the fact of his prior convictions was invalid. However, we agreed with defendant that in light of Senate Bill No. 620, he was entitled to remand to allow the court to exercise its discretion regarding whether to strike the firearm enhancement. (Stats.2017, ch. 682, § 1, pp. 1-2 (Senate Bill No. 620).) We also agreed with the People that the trial court erred in imposing prior prison term enhancements under section 667.5, former subdivision (b), on each count rather than on the aggregate sentence.
Therefore, we modified the judgment by striking the two 1-year prior prison term enhancements imposed on counts 1 through 4 and imposing them without reference to any particular count. We also remanded the matter to the trial court to exercise its discretion under section 12022.5, subdivision (c), as amended by Senate Bill No. 620 and, if appropriate following exercise of that discretion, to resentence defendant. Except as modified, we affirmed the judgment.
On remand, the trial court declined to exercise its discretion to strike the firearm enhancement and imposed the same sentences summarized above with the exception of the two 1-year prior prison term enhancements, which the court noted were stricken.
Defendant filed a timely notice of appeal. (§ 1237.) Relying on People v. Le (2015) 61 Cal.4th 416 (Le) and People v. Francis (2017) 16 Cal.App.5th 876 (Francis), he claims that as to count 1, the trial court erred when it imposed both the four-year gang enhancement and the four-year firearm enhancement. (§ 1170.1, subd. (f).) Defendant contends that the court was required to sentence him under subdivision (b)(1)(B) of section 186.22 rather than subdivision (b)(1)(A), the latter of which is limited to nonserious, nonviolent felonies. Once corrected, only the greater of the two enhancements may be imposed, which is the five-year gang enhancement. (§ 1170.1, subd. (f); Le, supra, at pp 422-423; Francis, supra, at p. 882.)
The People agree the trial court erred in this regard, but they argue that because assault with a firearm is both a serious felony and a violent felony, the trial court was required to impose a 10-year sentence under subdivision (b)(1)(C) of section 186.22. Additionally, the People argue that in our prior opinion, we imposed the two 1-year prior prison term enhancements on the aggregate sentence but, on remand, the trial court struck them in the absence of jurisdiction to do so.
Defendant did not file a reply brief.
We agree with the parties that pursuant to section 1170.1, subdivision (f), and the California Supreme Court's decision in Le, the trial court erred in imposing the gang enhancement under section 186.22, subdivision (b)(1)(A), and the firearm enhancement under section 12022.5, subdivision (a). (Le, supra, 61 Cal.4th at pp. 424-425.) We also agree with the People that it is the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), that applies in this case. (Le, supra, at pp. 422-423.) Finally, we need not reach the People's jurisdictional argument because, as the parties agree in supplemental letter briefs filed pursuant to Government Code section 68081, the prior prison term enhancements under section 667.5, former subdivision (b), must be stricken under Senate Bill No. 136, effective January 1, 2020. (Stats. 2019, ch. 509, § 1, pp. 1-4 (Senate Bill No. 136).)
Accordingly, on count 1, the judgment is modified to reflect one, imposition of the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), and two, the firearm enhancement under section 12022.5, subdivision (a), is stayed under section 1170.1, subdivision (f). The judgment is further modified to reflect that the prior prison term enhancements are stricken in light of the amendment to section 667.5, subdivision (b), under Senate Bill No. 136. Except as modified, the judgment is affirmed.
DISCUSSION
I. Imposition of Both Firearm Enhancement and Gang Enhancement
A. Unauthorized Sentence
As summarized above, the jury convicted defendant on count 1 of assault with a firearm under section 245, subdivision (b), and found true that he committed the offense "for the benefit of, at the direction of, or in association with a[] criminal street gang" under section 186.22, subdivision (b)(1), and that he personally used a firearm in the commission of the offense under section 12022.5, subdivision (a). The trial court sentenced defendant to the upper term of nine years, doubled to 18 years for the prior strike offense, and imposed the upper term of four years for the gang enhancement under section 186.22, subdivision (b)(1)(A), and the middle term of four years for the firearm enhancement.
Although defendant did not object to the sentence in the trial court or raise the issue in his first appeal, "a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Errors of this type are "'clear and correctable' independent of any factual issues presented by the record at sentencing." (Ibid., citing People v. Welch (1993) 5 Cal.4th 228, 235.) Therefore, "[a] claim that a sentence is unauthorized ... may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court." (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6, citing People v. Scott, supra, at p. 354.)
B. Analysis
The parties agree that the trial court was precluded from sentencing defendant to the upper four-year term under subdivision (b)(1)(A) of section 186.22, which applies only to nonserious, nonviolent felonies, and that the court was also precluded as a matter of law from imposing both the gang enhancement and the firearm enhancement because only the greater of the two may be imposed. (§ 1170.1, subd. (f); Le, supra, 61 Cal.4th at p. 425.)
Relying on Francis, defendant contends that the trial court was required to impose the five-year serious-felony gang enhancement under subdivision (b)(1)(B) of section 186.22. (Francis, supra, 16 Cal.5th at p. 880.) The People, however, maintain that because assault with a firearm is both a serious felony and a violent felony, a point defendant does not dispute, the trial court was required to sentence him under section 186.22, subdivision (b)(1)(C), resulting in a 10-year enhancement. As defendant did not file a reply brief, we treat the People's argument as undisputed. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364 ["If a party's briefs do not provide legal argument and citation to authority on each point raised, '"the court may treat it as waived, and pass it without consideration. [Citations.]"'"].)
After a review of the parties' arguments and in accordance with the California Supreme Court's decision in Le, we agree with the People. (Le, supra, 61 Cal.4th at pp. 422-423.) Section 1170.1, subdivision (f), provides, "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury." (Italics added.) It is settled that where, as here, a defendant is convicted of assault with a firearm under section 245, subdivision (b), section 1170.1, subdivision (f), applies to preclude a trial court from imposing both a firearm enhancement under section 12022.5, subdivision (a), and a gang enhancement for a serious or violent offense under section 186.22, subdivision (b)(1)(B) or (b)(1)(C). (Le, supra, 61 Cal.4th at p. 425; People v. Rodriguez (2009) 47 Cal.4th 501, 508-509 (Rodriguez).) Under section 1170.1, subdivision (f), only the greater of the two enhancements may be imposed. (Le, supra, at p. 425; Rodriguez, supra, at pp. 508-509.)
As in this case, the defendant in Le was convicted, in relevant part, of assault with a firearm with an attached gang enhancement and enhancement for personal use of a firearm. (Le, supra, 61 Cal.4th at p. 420.) Also as in this case, the prosecutor in Le generically charged the gang enhancement under section 186.22, subdivision (b)(1). (Le, supra, at pp. 420-421.) Assault with a firearm is categorized as both a serious offense and a violent offense under the gang statute (§ 186.22, subd. (b)(1)(B)-(C)), and under the holding in Rodriguez, the trial court was precluded from imposing both the gang enhancement for violent offenses under section 186.22, subdivision (b)(1)(C), and the firearm enhancement under section 12022.5, subdivision (a) (Rodriguez, supra, 47 Cal.4th at p. 509).
To evade the reach of Rodriguez, the prosecutor in Le argued that the trial court should treat the generically charged gang enhancement as a serious felony under section 186.22, subdivision (b)(1)(B). (Le, supra, 61 Cal.4th at p. 421.) The trial court rejected the People's position and concluded that because the assault was in fact a violent felony under the gang statute, Rodriguez was controlling and it imposed the 10-year gang enhancement and stayed the firearm enhancement. (Le, supra, at pp. 421-422.) The Court of Appeal affirmed the trial court. (Id. at p. 422.) On the People's petition for review, the California Supreme Court affirmed the Court of Appeal (id. at p. 429), and, assuming without deciding that the trial court had the discretion to designate the felony as serious rather than violent, it extended Rodriguez to serious felonies involving use of a firearm (Le, supra, at pp. 425-426).
As set forth in Le, the gang statute "provides different levels of enhancement for the base felony if that felony is 'committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members ....' (§ 186.22, subd. (b)(1).) If the base felony qualifies as a violent felony under the list of felony crimes contained in section 667.5, then 'the person shall be punished by an additional term of 10 years.' (§ 186.22, subd. (b)(1)(C).) If the base felony qualifies as a serious felony under the list of felony crimes contained in section 1192.7, then 'the person shall be punished by an additional term of five years.' (§ 186.22, subd. (b)(1)(B).) If the base felony qualifies neither as serious nor violent, then 'the person shall be punished by an additional term of two, three, or four years at the court's discretion.' (§ 186.22, subd. (b)(1)(A).) Section 186.22, subdivision (b)(1)'s three sentence provisions, therefore, reflect the intention to impose progressively longer sentence enhancements based on the severity of the felony categorized across three tiers. It is also important to note that the sentence enhancements in section 186.22, subdivision (b)(1) are mandatory—all three provisions specify that the additional punishment 'shall' be imposed." (Le, supra, 61 Cal.4th at pp. 422-423.)
Here, the trial court imposed the upper term of four years for the gang enhancement under section 186.22, subdivision (b)(1)(A), which provides, "Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion." (Italics added.) However, as previously noted, defendant's conviction for assault with a firearm is a serious felony under section 1192.7, subdivision (c)(1)(8), (c)(1)(23) and (c)(1)(31), and it is a violent felony under section 667.5, subdivision (c)(8), by virtue of the jury's finding that defendant personally used a firearm under section 12022.5, subdivision (a). As explained in Le, summarized above, the gang statute provides for progressive, mandatory punishment depending on the severity of the felony offense and it follows that the trial court was required to sentence defendant under subdivision (b)(1)(C) of section 186.22 rather than under subdivision (b)(1)(A), which applies only to nonserious, nonviolent felonies. (Le, supra, 61 Cal.4th at pp. 422-423; Francis, supra, 16 Cal.App.5th at p. 880 ["[T]he gang enhancement for nonserious, nonviolent felonies cannot be appended to a serious or violent felony because serious and violent felonies fall within that provision's excepting clause."].)
Accordingly, we conclude the trial court erred in sentencing defendant under subdivision (b)(1)(A) of section 186.22 and should have instead sentenced him under subdivision (b)(1)(C), which applies to violent felonies. (Le, supra, 61 Cal.4th at p. 423.) Although defendant seeks remand for resentencing, because the trial court here imposed the upper term on count 1, we need not remand the matter for resentencing. (Id. at p. 428; Francis, supra, 16 Cal.App.5th at p. 887.) The judgment on count 1 is modified to reflect imposition of a 10-year sentence for the gang enhancement under section 186.22, subdivision (b)(1)(C), rather than a four-year sentence under section 186.22, subdivision (b)(1)(A); and pursuant to section 1170.1, subdivision (f), the four-year firearm enhancement imposed under section 12022.5, subdivision (a), is stayed.
II. Imposition of Prior Prison Term Enhancements
A. Error in Treating Prior Prison Term Enhancements as Stricken Moot
At the time of the original sentencing, the trial court had discretion to strike the additional punishment for the two prior prison term enhancements "in the furtherance of justice" but it did not do so. (§ 1385, subd. (b)(1) [§ 1385, former subd. (c)(1)].) On review, we concluded that the court erred in attaching the punishment to each count rather than attaching it to the aggregate sentence. We struck the prior prison term enhancements imposed on counts 1 through 4 and ordered them imposed without reference to a specific count, and we remanded the matter to allow the court to exercise its discretion to strike the firearm enhancement under Senate Bill No. 1393. The court declined to strike the firearm enhancement and noted that the prior prison term enhancements were stricken, overlooking their imposition on the aggregate sentence.
Citing People v. Vizcarra (2015) 236 Cal.App.4th 422, 441 and People v. Murphy (2001) 88 Cal.App.4th 392, 396-397, the People assert that under the terms of the remand order, the court lacked jurisdiction to strike the prior prison term enhancements. We need not reach this jurisdictional argument, however, because, as the parties agree, the issue is now moot. We reiterate that the court acted based on an erroneous interpretation of the remand order rather than in a purported exercise of its sentencing discretion. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [exercise of discretion must be informed].) Regardless, as discussed next, Senate Bill No. 136 precludes imposition of the prior prison term enhancements as a matter of law. Therefore, we shall direct the court to correct its records to reflect that the prior prison term enhancements are stricken in light of the amendment to section 667.5, subdivision (b), by Senate Bill No. 136.
B. Senate Bill No. 136
Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant here, trial courts are required to impose a three-year sentence for each prior, separate prison term served by the defendant for a violent felony where the current offense is also a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant to former subdivision (b), and subject to exceptions not relevant here, trial courts are required to impose an additional one-year term for each prior, separate prison term or county jail felony term. As amended by Senate Bill No. 136, subdivision (b) of section 667.5 limits imposition of the additional one-year term to each prior, separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
In accordance with the California Supreme Court's decision in In re Estrada (1965) 63 Cal.2d 740, 744, "'"[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].'" (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v. DeHoyos (2018) 4 Cal.5th 594, 600.) Judgment is not yet final in this case and we agree with the parties that Senate Bill No. 136 applies retroactively. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342; accord, People v. Jennings (2019) 42 Cal.App.5th 664, 681-682.)
In this case, the prior prison term enhancements are based on defendant's convictions for possession of a firearm under former section 12031, subdivision (a)(2)(F), and for second degree burglary under section 460, subdivision (b). Neither is a qualifying offense under section 667.5, subdivision (b), as amended, and, therefore, they must be stricken. Accordingly, the trial court shall correct its records to reflect that the enhancements are stricken pursuant to Senate Bill No. 136.
Effective January 1, 2012, section 12031 was repealed and recodified as section 25850. (Stats. 2010, ch. 711, §§ 4, 6.) Former section 12031, subdivision (a)(2)(F), is now section 25850, subdivision (c)(6).
Remand for resentencing is not necessary because the trial court imposed the upper terms on all counts. (People v. Buycks (2018) 5 Cal.5th 857, 893, 896, fn. 15; People v. Lopez, supra, 42 Cal.App.5th at p. 342.) --------
DISPOSITION
The judgment is modified to reflect imposition of a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), and the firearm enhancement imposed under section 12022.5, subdivision (a), is stayed, resulting in a total determinate term of 28 years on count 1. The judgment is further modified to reflect that the two 1-year prior prison term enhancements are stricken in light of the amendment to section 667.5, subdivision (b), under Senate Bill No. 136. The trial court shall issue an amended abstract of judgment and forward it to the appropriate authorities. Except as modified, the judgment is affirmed.