P. v. Brown

Filed 10/16/07 P. v. Brown CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Federico Brown, Ricky Lee Harris, and Joseph Jones appeal from judgments entered after the trial court convicted them of two counts of second degree robbery (Pen. Code,  211)^[1], second degree burglary ( 459), assault with a firearm ( 245, subd. (a)(2)), assault with a semiautomatic firearm ( 245, subd. (b)), and three counts of false imprisonment by violence ( 236) with firearm enhancements ( 12022.53, subd. (b); 12022.5, subd. (a)); 12022, subd. (a)(1)). The trial court also convicted Brown of felon in possession of a firearm ( 12021, subd. (a)(1)), and found that he was a second striker under the Three Strikes Law ( 667, subds. (b)(i); 1170.12, subds. (a)-(d)) and had suffered two prior prison terms within the meaning of section 667.5, subdivision (b).

Appellants cite numerous sentencing errors, many of which are clerical and appear in the July 19, 2006 minute order and abstracts of judgment. We modify the sentences and affirm the judgments as modified. ( 1260; People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may correct clerical errors].)

Facts and Procedural History

On September 13, 2005, Brown and Harris entered a Hollywood pawnshop with handguns. Jones stood at the doorway. Brown pistol whipped the store owner, Alexander Elperin, and vaulted over the counter. Elperin was knocked unconscious but before that he managed to activate a silent alarm.

Harris shoved a semiautomatic firearm in Efrim Palatnik's face (a store employee) and threatened to kill him. Elperin and Palatnik were dragged to a storage room and bound with duct tape. Paul Cusack, a customer, was ordered to lie down in the storage room.

Appellants ransacked the pawnshop, taking money, jewelry, and handguns. They were arrested minutes later near the pawnshop.

The victims identified Brown and Harris, and identified handguns and cell phones used in the robbery. The cell phones had common numbers and walk-talkie functions that enabled appellants to communicate during the robbery.

Appellants were convicted on all counts. Harris admitted suffering two prior prison terms ( 667.5, subd. (b)). In the second phase of trial, the trial court found that Brown had suffered two prior prison terms ( 667.5, subd. (b)) and had suffered a prior serious felony under the Three Strikes Law.^[2]

Brown Sentence

Brown was sentenced to 29 years state prison based on the following sentence calculation: On count 1 for second degree robbery, the trial court imposed a five year upper term, doubled the term under the Three Strikes Law, and added ten years on the firearm enhancement ( 12022.53, subd. (b)). On count 7 for false imprisonment, Brown received a consecutive term of two years eight months, consisting of eight months (one-third the midterm of two years), doubled under the Three Strikes law, plus 16 months (one third the four year midterm) on a firearm enhancement ( 12022.5, subd. (a)). On count 14 for second degree robbery, the trial court imposed a consecutive term of five years four months, consisting of one year (one-third the three year midterm), doubled under the Three Strikes law, plus 40 months (one third the 10 year term) on a section 12022.53, subdivision (b) firearm enhancement. Brown was also sentenced to a consecutive one year term on the prior prison term enhancement ( 667.5, subd. (b)). On counts 2 through 6, the trial court imposed midterm sentences, doubled the sentences under the Three Strikes Law, added four year firearm enhancements ( 12022.5, subd. (a)), and stayed the sentence on each count.

Brown Sentence Errors

Brown asserts, and the Attorney General agrees, that the July 19, 2006 minute order incorrectly reflects that a 10-year firearm enhancement was imposed on count 3 (assault with a firearm) and that a 16-month enhancement was imposed on count 4 (assault with a semiautomatic firearm). The trial court imposed four-year firearm enhancements ( 12022.5, subd. (a)) on counts 3 and 4 and stayed the sentence. (See People v. Stephenson (1974) 10 Cal.3d 652, 656 [reporter's transcript controls over minute order discrepancies].) We direct the trial court to correct the minute order to reflect the sentence imposed.

The trial court is also directed to correct the July 19, 2006 minute order and abstract of judgment as follows:

1. The minute order and abstract of judgment incorrectly state that firearm enhancements were imposed on counts 2 through 7 pursuant to section 12022.53, subdivision (b). The trial court imposed section 12022.5, subdivision (a) enhancements on those counts.

2. The minute order incorrectly states that a four year "upper term" was imposed on count 5 (Elperin) for false imprisonment with violence. The trial court imposed a two year midterm sentence. ( 18; 236; 237, subd. (a).) There was no allegation or finding to support a four year term based on Elperin's age ( 237, subd. (b); 368, subd. (f).) The trial court is directed to correct the minute order to reflect the imposition of a two year midterm on count 5, doubled under the Three Strikes Law, plus a four year firearm enhancement ( 12022.5, subd. (a)), and that the sentence is stayed ( 654).

3. On Count 14 for second degree robbery, the abstract and minute order state that a three-year firearm enhancement was imposed pursuant to section 12022.53, subdivision (b). The trial court, however, imposed a 40 month enhancement which is one-third the 10 year term provided by section 12022.53, subdivision (b).

4. The abstract of judgment incorrectly states that two prior prison enhancements were imposed. ( 667.5, subd. (b).) The trial court is directed to amend the abstract of judgment to reflect that only one prior prison term enhancement was imposed.

5. The trial court is directed to amend the abstract of judgment to reflect that Brown's total aggregate sentence is 29 years rather than 29 years 8 months.

Brown- Count 3 & 4 Firearm Enhancements

Brown asserts that the firearm enhancement ( 12022.5, subd. (a)) on counts 3 and 4 (assault with firearm and assault with semi-automatic firearm) should be stricken because use of a firearm is an element of the assault offenses. Section 12022.5, subdivision (d), however, provides that the use enhancement shall be imposed "for any violation of Section 245 if a firearm is used." The trial court did not err in imposing the enhancement. (People v. Harper (2000) 82 Cal.App.4th 1413, 1417; People v. Joachim (1995) 38 Cal.App.4th 1526, 1530; People v. Johnson (1996) 51 Cal.App.4th 1329, 1332-1334; 3 Witkin & Epstein, Cal. Criminal Law, Punishment (3rd ed. 2000)  321, pp. 415.)

Brown - Upper Term Sentences

Citing Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), Brown argues that the upper term sentences on count 1 (robbery), count 2 (commercial burglary), count 3 (assault with firearm) and count 8 (felon in possession of firearm) violate his Sixth Amendment right to jury trial.^[3] The Cunningham court stated that "the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]" (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860].) The court concluded that, under California's Determinate Sentencing Law, the prescribed statutory maximum sentence is the middle term. (Id., at p. ___ [127 S.Ct at. p. 871.)

Here the trial court imposed upper terms based on the following aggravating factors: (1) Brown assumed a leader role in a take-over robbery that was sophisticated, professionally staged, and extraordinarily dangerous, (2) Brown engaged in gratuitous violence, (3) a large amount of jewelry of great monetary value was taken, (4) the offenses involved great violence and a great threat of bodily harm, (5) Brown has a criminal history with juvenile and adult convictions of increasing seriousness, (6) Brown was on parole when he committed the offenses, and (7) Brown was a recidivist felon who engaged in criminal violence.

An upper term sentence may be imposed based on a defendant's criminal history and parole status without a jury finding thereon. (People v. Black (2007) 41 Cal.4th 799, ___ [2007 DJAR 11041, 11047-11048]; see also People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) In People v. Black, supra, __ Cal.4th at page __ [2007 DJAR at p. 11045] our Supreme Court recently held that the presence of one aggravating factor is sufficient to render a criminal defendant eligible for an upper term sentence. "[I]mposition of the upper term does not infringe upon defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior conviction." (Id., at p.  __ [2007 DJAR at pp. 11046-11047].)

Brown's prior conviction, his criminal history, and his status as a second strike offender and parolee support the upper term sentences. There was no violation of his Sixth Amendment right to jury trial.

Jones Sentence

Jones was sentenced to eight years state prison based on the following sentence calculation: Selecting count 4 (assault with a semiautomatic firearm) as the principal term, the trial court imposed a six year midterm. On count 1 for second degree robbery, the court imposed a consecutive one year term (one-third the three year midterm), plus four months on a firearm enhancement (one-third the one year midterm; 12022, subd. (a)(1)). On count 7 for false imprisonment, the trial court imposed a consecutive term of eight months (one third the midterm of two years) and struck the firearm enhancement. The trial court imposed midterm sentences plus one-year firearm enhancements ( 12022, subd. (a)(1)) on count 2 (commercial burglary), count 3 (assault with firearm), count 5 (false imprisonment), count 6 (false imprisonment), and count 14 (second degree robbery), and stayed the sentence on those counts.

Jones Sentencing Errors

Jones argues and the Attorney General agrees that the abstract of judgment incorrectly states that Jones was convicted of section 245, subdivision (a)(2) on count 4. Jones was convicted of assault with a semi-automatic weapon, a violation of section 245, subdivision (b). The trial court is directed to amend the abstract of judgment to reflect the proper subdivision.

Jones argues that the abstract of judgment incorrectly states that a concurrent sentence was imposed on count 5 for false imprisonment with violence. The Attorney General concedes the abstract of judgment should be amended to reflect that count 5 and the corresponding 12022, subdivision (a)(1) firearm enhancement were stayed.

The Attorney General agrees that the abstract of judgment incorrectly states that firearm enhancements were imposed on counts 3, 5, and 6 pursuant to section "120221(A)(1)." On counts 5 and 6, the trial court imposed one year firearm enhancements pursuant to section 12022, subdivision (a)(1). On count 3, the trial court found the firearm enhancement was not true but erroneously imposed a one year firearm enhancement ( 12022, subd. (a)(1)). The trial court is directed to amend the abstract of judgment to list the imposition of section 12022, subdivision (a)(1) firearm enhancements on counts 5 and 6, and to strike the firearm enhancement on count 3.

Jones argues that the firearm enhancements on counts 2, 5, 6, and 14 were stricken. The reporter's transcript indicates that the trial court stayed the firearm enhancements on counts 2, 5, 6, and 14, as reflected in the abstract of judgment. The trial court did not strike the enhancements.^[4]

Harris Sentence

Harris was sentenced to 22 years 4 months state prison based on the following sentence calculation: Selecting count 4 (assault with semiautomatic firearm) as the principal term, the trial court imposed a six year midterm plus 10 years on the section 12022.53, subdivision (b) firearm enhancement. On count 1 for second degree robbery, Harris received a consecutive one year term (one-third the three year midterm), plus 40 months on a firearm enhancement (one-third the 10 year term). On count 7 for false imprisonment by violence, Harris received a consecutive eight month term (one-third the two year midterm), plus 16 months (one-third the four year midterm) on the section 12022.5, subdivision (a) firearm enhancement. The trial court imposed and stayed midterm sentences on counts 2, 3, 5, 6, 12 and 14, and struck the prior prison term enhancements ( 667.5, subd. (b)).

Harris Sentencing Errors

The Attorney General acknowledges that the minute order and abstract of judgment incorrectly state that firearm enhancements were imposed on counts 2, 3, 5, 6 and 7 pursuant to section 12022.53, subdivision (b). The minute order and abstract of judgment are ordered amended to reflect that section 12022.5, subdivision (a) four-year midterm enhancements were imposed on counts 2, 3, 5, and 6. On count 7, the trial court imposed a 16 month firearm enhancement pursuant to section 12022.5, subdivision (a) (i.e., one-third the four year midterm) These corrections should be reflected in the minute order and amended abstract of judgment.

The trial court is also directed to amend the minute order and abstract of judgment as follows:

1. On count 1 (second degree robbery), to reflect that a consecutive one year sentence was imposed (one-third the three year midterm) plus a 40 month firearm enhancement pursuant to section 12022.53, subdivision (b) (i.e., one-third the 10 year enhancement term).

2. To reflect that the section 667.5, subdivision (b) prior prison term enhancements were stricken. The July 19, 2006 minute order and abstract of judgment incorrectly state that a one-year enhancement was imposed pursuant to section 667.5, subdivision (b).

3. To reflect that the total aggregate sentence is 22 years 4 months state prison. The abstract of judgment incorrectly states that the sentence is 22 years.

Harris Supplemental Letter Brief

After counsel filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436), Harris submitted a letter brief raising the following issues. Harris claims that the 10 year "upper term" on the count 4 firearm enhancement violates Cunningham because the trial court relied on aggravating factors not determined by the jury. We reject the argument. The 10-year firearm enhancement was imposed pursuant to section 12022.53, subdivision (b) which provides for "an additional and consecutive term of imprisonment in the state prison for 10 years." Cunningham does not apply where the enhancement has no middle term or upper term.

Harris argues that the imposition of a consecutive insubordinate term on count 1 (second degree robbery) violates section 654 because the robbery and armed assault (count 4) involve the same firearm. Section 654, however, does not preclude multiple punishment where the crimes have different victims. (People v. Robinson (1988) 198 Cal.App.3d 674, 678.) Count 4 (assault with a semiautomatic weapon) was based on appellant's assault of Efim Palatnik, the pawnshop employee. Count 1 was based on the robbery of the pawnshop owner, Alexander Elperin. Section 654 does not bar punishment for each crime.

Harris - $10,000 Restitution Fine^[5]

Harris claims that he was denied due process because the trial court imposed a $10,000 restitution fine without conducting a hearing on his ability to pay. Harris failed to object or argue that he lacked the ability to pay at the sentencing hearing. Having waived the issue, he is precluded from raising it on appeal. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; People v. McMahan (1992) 3 Cal.App.4th 740, 750.)

All Appellants - $20 Court Security Fee

The Attorney General argues that the trial court erred in not imposing a $20 court security fee for each offense. (Infra, fn. 4.) We agree. Section 1465.8, subdivision (a)(1) requires that a $20 security fee be imposed "on every conviction for a criminal offense. . ." (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The judgments are modified to impose a $20 court security fee on each count. ( 1465.8, subd. (a)(1); 1260.)

All Appellants - Theft Fine and Surcharges

Harris and Brown were ordered to pay a $20 theft fine pursuant to section 1202.5 rather than the $10 proscribed amount. The trial court failed to order Jones to pay a $10 theft fine, which is required as a matter of law. ( 1202.5.) The trial court is directed to amend the minute orders and abstracts of judgment to reflect that Harris, Brown, and Jones are ordered to pay a $10 theft fine pursuant to section 1202.5.

The trial court also failed to impose mandatory penalty assessments and surcharges which were not waived by the People. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Turner (2002) 96 Cal.App.4th 1409, 1414-1416.) In the interest of judicial economy, we impose the following penalty assessments and surcharges^[6]to be reflected in the amended abstracts of judgment and trial court's minute order:

1. A $10 penalty assessment pursuant to section 1464, subdivision (a).)

2. A $7 penalty assessment pursuant to Government Code section 76000, subdivision (a).

3. A $2 surcharge pursuant to section 1465.7.

4. A $13.50 state court construction penalty pursuant to Government Code section 70372, subdivision (a).

The trial court is directed to correct the July 19, 2006 minute order and to amend the abstracts of judgment in accordance with this opinion, and to forward certified copies of the amended abstracts of judgment to the Department of Corrections. As to appellant Brown, the unstayed aggregated term of imprisonment is 29 years. As to appellant Jones, the unstayed aggregate term of imprisonment is 8 years. As to appellant Harris, the unstayed aggregate term of imprisonment is 22 years and 4 ,onths. As modified, the judgments are affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Michael E. Pastor, Judge

Superior Court County of Los Angeles

______________________________

Matthew W. Alger, under appointment by the Court of Appeal, for Mathew Alger, Defendant and Appellant.

David L. Polsky, under appointment by the Court of Appeal, for Ricky Lee Harris, Defendant and Appellant.

Richard J. Moller, under appointment by the Court of Appeal, for Joseph J. Jones, Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.

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Analysis and review provided by San Diego County Property line attorney.

^[1]All statutory references are to the Penal Code.

^[2]The abstracts of judgment incorrectly reflect that Brown was convicted by plea and that Jones and Harris were convicted by jury.

^[3]Appellant Brown did waive jury trial but contends on appeal that it was not a knowing waiver because it predated the Cunningham ruling. We elect to reach his contention on the merits.

^[4]Appellant cites the trial court's statement that it was striking "any and all other enhancement allegations pursuant to Penal Code section 12022(A)(1), for purposes of sentencing in this case . . . . " The trial court was referring to counts 1, 4, and 7. On counts 2, 5, 6, and 14, the trial court imposed midterm sentences plus one year firearm enhancements, and stayed the sentence on those counts.

^[5]Harris, Brown, and Jones were ordered to pay a $20 court security fee ( 1465.8, subd. (a)(1)), a $10,000 restitution fine ( 1202.4, subd. (b)), and a $10,000 parole revocation fine ( 1202.45).

^[6]Any party wishing to contest these issues may petition for rehearing. (Gov. Code,  68081.)