P. v. Arreygue

Filed 7/17/07 P. v. Arreygue CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Susan M. Speer, Judge. Affirmed as modified.

Alisa A. Shorado, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Michael Arreygue was convicted of one count of attempted premeditated murder (count 1), three counts of assault with a firearm (counts 2, 3, and 4), one count of shooting at an occupied motor vehicle (count 6), and related allegations. He was sentenced to an indeterminate term of 40 years to life on count 1, consecutive to a determinate term of 33 years on counts 2, 3, and 4.[1] He argues, and respondent concedes, that count 6 must be stricken due to the statute of limitations. Appellant and respondent further agree that there are problems with the length of the street gang enhancements that were imposed on counts 3 and 4. The only disputed issue is the effect of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856](Cunningham) on imposition of the upper term on count 2.

We strike count 6, modify the sentence on the gang enhancements on counts 3 and 4, and otherwise affirm.

FACTS

On the evening of November 24, 2000, Joel G. visited his friend, Isaac V. at Isaacs home. Joel and Isaac were current or former members of the Haskell Street Locos street gang.

Joels girlfriend, Charlene, arrived in her car to pick up Joel. In the backseat of her car were the couples 18-month-old daughter, Angelina, and their 2-month-old baby, Andrea. Joel left Isaacs house and sat down in the front passengers seat of Charlenes car. Angelina was behind him, and Andrea was behind Charlene.

A car pulled up. Its driver was the codefendant, Javier Payan, who is not a party to this appeal. Appellant was in the passengers seat. He and Payan belonged to the same street gang, Barrio Van Nuys, which was a rival of the Haskell gang. They had entered the territory of the Haskell Street Locos gang, which was not their gangs territory.

Appellant pointed a gun at Charlenes head. Charlene asked him not to shoot and told him that her children were in the car. Trying to escape, she pulled into reverse, as there was a parked car in front of her. Appellant got out of Payans car and stepped in front of Charlenes car. He stopped when he was standing in front of Joel. He yelled out a derogatory statement about Joels gang, pointed the gun at Joels face, and starting shooting. He fired two or three shots from a distance of four or five feet. Joel tried to cover Charlene with his body. The car went up the curb and hit a tree. Appellant ran back to Payans car and rode off with Payan.

Charlenes car would not move as one of the shots had punctured a tire. Joel and Charlene were not injured. They grabbed their daughters and started to run. They then realized that Andrea, the baby, had been shot through the torso, and her intestines were out. Andrea received emergency surgery and spent a month in the hospital. Five years later, at the time of the trial, she still had scars and a rib which popped out at the spot where the bullet passed through her.

Charlenes car had a broken front window on the passengers side and bullet holes on the front passenger seats headrest and right fender.

Joel knew appellant and Payan, as he had gone to school with them. For a variety of reasons, he and Charlene did not tell the police who perpetrated the crimes until December 2003. They identified both of the defendants at the trial.

DISCUSSION

The issues in this case all concern appellants sentence. It was computed in this manner:

Count 1, premeditated attempted murder of Joel: an indeterminate sentence of 15 years to life, plus 25 years for firearms discharge causing great bodily injury.

Count 2, assault with a firearm on Andrea: upper term of 9 years, plus 10 years for a street gang allegation.

Count 3, assault with a firearm on Angelina: midterm of 2 years, plus 5 years for a street gang allegation.

Count 4, assault with a firearm on Charlene: midterm of 2 years, plus 5 years for a street gang allegation.

The determinate sentences on counts 2, 3 and 4 are to be served consecutively with each other. The indeterminate sentence on count 1 will be served after the 33-year sentence on counts 2, 3 and 4 is completed.

Pursuant to Penal Code section 654,[2] the court stayed: (1) count 6, shooting at an occupied motor vehicle; (2) a great bodily injury allegation on count 2, and (3) firearms allegations on counts 2, 3, 4, and 6.

1. Count 6

Count 6, shooting at an occupied motor vehicle ( 246), was stayed pursuant to section 654. The partiesagree that the count must be stricken or vacated, as the applicable statute of limitations for that crime was three years and the filing of the information exceeded that time period by six months. ( 801, 805; People v. Williams (1999) 21 Cal.4th 335, 341.)

2. The Street Gang Enhancements on Counts 3 and 4

Counts 3 and 4 involved assaults with a firearm on Angelina and Charlene ( 245, subd. (b)). The trial court properly imposed consecutive sentences for the underlying crimes based on one-third of the midterm, but then added five-year terms for the street gang enhancements ( 186.22, subd. (b)(1)). The parties agree that the sentence for the enhancements should have been one-third of the full term of the enhancement ( 1170.1, subd. (a)), and the correct full term was 10 years, rather than five years ( 186.22, subd. (b)(1)(C)).[3]

Thus, on count 3 and count 4, instead of imposing five years for the section 186.22 enhancements, the court should have imposed one-third of 10 years, or three years and four months, for those enhancements.

Respondent asks that we remand for resentencing to give the trial court an opportunity to rethink the entire sentence. That result is unnecessary when correction of the error results in so little actual change in the length of the total sentence. In the interest of judicial economy, we order the appropriate modification.

3. The Cunningham Issue

The only contested issue concerns imposition of the upper term of nine years on count 2, assault with a firearm on Andrea.

Appellant contends that the trial court engaged in sentence-elevating factfinding, which is precluded by Cunningham, supra, 127 S.Ct. 856, and Blakely v.Washington (2004) 542 U.S. 296 (Blakely).

The trial court gave this statement of reasons for its sentence choice:

THE COURT: All right. In determining whether to impose the high term and consecutive sentences, the court considered California Rules of Court 4.425, 4.421 and 4.423. [] As to choosing the consecutive terms as to the facts of the case, the court looked at factors of aggravation. The court finds that these were acts of violence or threats of violence against four separate victims. [] As to the decision to impose high term, all the crimes involved great violence, threat of great bodily injury, and a high degree of viciousness, cruelty and callousness. The defendant used a firearm obviously. All victims were particularly vulnerable. They were taken by surprise. They were unarmed. They were seated or strapped inside a stationary vehicle and two of the victims were children that were strapped to car seats. [] The defendant induced co-defendant Payan to participate in this crime. [] The defendant has been convicted of other crimes, namely attempted murder, to which consecutive sentences could be imposed, for which a concurrent sentence is going to be imposed. [] The crime involved planning and sophistication. [] As to factors pertaining to the defendant, the defendant has engaged in violent conduct which indicates a serious danger to society. The defendants prior convictions were serious and increasing in severity. [] The defendant has served a prior prison term for the same offense under similar circumstances^[[4]^] and any one of these, in addition to the totality of these factors, would justify high term in the courts opinion. [] As to factors in mitigation, the court could find none related to the crime or the defendant. Clearly the factors in aggravation outweigh the absence of any factors in mitigation. (Italics added.)

It appears that the trial court engaged partly in the type of judicial factfinding that is forbidden by Blakely and Cunningham, at least as to the factors that are italicized above. However, on the particular facts of this case, any error was harmless, under Chapman v. California (1966) 386 U.S. 18, 24, as one of the reasons for the upper term was appellants prior convictions and prior prison term. The jury trial principles discussed in Blakely and Cunningham apply to facts that increase the penalty,  [o]ther than the fact of a prior conviction.  (Blakely, supra, 542 U.S. at p. 301; see also Cunningham, supra, 127 S.Ct. at p. 868.) Recidivism is distinguishable from other matters that are used to enhance punishment, because (1) recidivism traditionally has been used by sentencing courts to increase the length of an offenders sentence, (2) recidivism does not relate to the commission of the charged offense, and (3) prior convictions result from proceedings that include substantial protections. (People v. McGee (2006) 38 Cal.4th 682, 698.) Since the recidivism factors constituted a separate, permissible basis for the upper term here, and the court specifically stated that any of the aggravating factors it named justified the upper term, any error regarding the nonrecidivism factors was harmless.

DISPOSITION

The judgment is modified to (a) strike count 6, and (b) on count 3 and count 4, change the penalty for the two enhancements under section 186.22, subdivision (b)(1) to three years and four months each.

The clerk of the superior court shall prepare an amended abstract of judgment to reflect those modifications and forward the amended abstract of judgment to the Department of Corrections.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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[1] Count 5 pertained only to the codefendant.

[2] Further code references are to the Penal Code unless otherwise stated.

[3] We commend counsel for both sides, for the way they have approached the issues in this case.

[4] The probation report does not explicitly state that appellant had previously served a prior prison term for a similar offense. It shows that appellant was placed on probation for driving a vehicle without the owners consent (Veh. Code, 10851), but probation was terminated and he was sentenced to prison on case number LA039382-07. The trial court indicated at the sentencing hearing that it had read the legal file on both of appellants prior cases. It therefore appears that the state prison case, LA039382-07, is the prior similar attempted murder to which the judge referred in the statement of reasons.