Filed 12/20/18 P. v. Dominguez CA4/1
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE,
Plaintiff and Respondent,
v.
JULIAN DOMINGUEZ,
Defendant and Appellant.
| D072771
(Super. Ct. No. SCD268952) |
APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Affirmed as modified and remanded with directions.
Lindsey M. Ball, 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, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Julian Dominguez and a codefendant were convicted of robbery among other charges after a jury trial. The codefendant's case is not before us.
Dominguez was convicted of one count of robbery (Pen. Code,[1] § 211). The jury found the gang allegation (§ 186.22, subd. (b)(1)) to be true. Dominguez admitted one serious felony prior conviction (§ 667, subd. (a)(1)); one strike prior (§ 667, subds. (b)-(i)) and two prison priors (§ 667.5, subd. (b)).
The court sentenced Dominguez to a 16-year determinate term, consisting of the upper term of five years for robbery, doubled to 10 years based upon the strike prior. The court imposed a consecutive five-year term for the serious felony prior and a consecutive one-year term for one of the prison priors. The court stayed the term for one prison prior and stayed the 10-year term for the gang enhancement.
Dominguez appeals challenging only the sentence. He contends the court erred in staying the sentence for the gang enhancement and argues we should strike the enhancement based on the trial court's comments at sentencing. He also contends the abstract of judgment must be amended to show that the restitution ordered is joint and several between Dominguez and his codefendant. The People agree the court erred in staying the term for the gang enhancement. The difference in their position from that of Dominguez is that the People urge us to remand the case for the court to exercise its discretion to either strike or impose the enhancement. The People agree the abstract of judgment should be amended regarding restitution.
On October 25, 2018 we filed our opinion affirming the judgment subject to amending the abstract of judgment.
Our perception was the trial judge was very clear that based upon the nature of the criminal activity in this case, the additional 10-year term was not warranted. There is no doubt the court did not want to impose the enhancement based upon its assessment of the crime and the defendant. We concluded it would be a waste of judicial resources to remand this back for what would be a ministerial act.
The People filed a petition for rehearing asking that we remand the case to the trial court to permit the court to exercise its discretion with regard to imposition of the gang enhancement. We were also informed Dominguez requested that we remand the case for resentencing so that he could seek to persuade the court to dismiss the serious felony prior conviction in light of Senate Bill No. 1393, which grants discretion to trial courts to dismiss serious felony priors in the furtherance of justice. We granted the petition for rehearing, so the trial court could fully exercise its discretion to properly calculate the appropriate sentence.
STATEMENT OF FACTS
Given the limited issues on this appeal, we find it unnecessary to set forth a full statement of facts. We will adopt the summary of facts from the respondent's brief, simply to provide background for the discussion which follows.
Appellant and his codefendant Jaime Arteaga robbed 17-year-old Luis G. at knifepoint as Luis was leaving a volleyball game he had been photographing. They took his Canon camera, some lenses, his tripod, his camera bag, $150 in cash, his watch, and a gold chain from his neck. On the gold chain Luis carried a ring that a friend had given him.
Appellant and his codefendant were both Logan Treinta gang members. The prosecution's expert testified that they committed the robbery to benefit their gang.
Another gang expert testified on behalf of the defense. In his opinion, appellants committed "a personal crime" and not a gang-related offense because they did not announce their gang affiliation when they robbed the victim. Since "nothing was recognized" or "attributed to [a] specific gang," the expert found no "gang connection" to the crime.
DISCUSSION
At the sentencing hearing, the court expressed its reservations regarding imposition of the 10-year term for the gang enhancement. It rejected the prosecutor's argument that striking the enhancement would result in the defendants "walking." The court said, "If you strike the 10 years, you're still arguing that Dominguez gets 17 years, [co-defendant] gets 19 years. I mean, that's no walk in the park."
In People v. Vega (2013) 214 Cal.App.4th 1387, 1396-1397 the court determined that the term under section 186.22, subdivision (b)(1) could not be stayed. Trial courts are required to either impose the term, or strike the enhancement in their discretion. In Vega the court remanded the case for the trial court to exercise its discretion and if the choice was to strike the enhancement, to place the reasons into the court's minutes under the circumstances of that case. The People urge us to remand so that the court can clarify its sentencing choice. (People v. Lua (2017) 10 Cal.App.5th 1004, 1020-1021.)
We have no doubt the trial court was aware of its discretion to impose or not impose the gang enhancement. (People v. Smith (1997) 59 Cal.App.4th 46, 50-51.) On this record, we would ordinarily simply modify the judgment to strike the enhancement which the court improperly stayed, because the court had sufficiently stated reasons for the decision not to impose the enhancement. (People v. Howington (1991) 233 Cal.App.3d 1052, 1060.) However, since the case must be remanded to permit the court to exercise its discretion to strike the serious felony prior, it makes sense to permit the court to exercise its full range of discretion and to either impose the gang enhancement or to strike it.
With regard to the restitution order, we agree with the parties. Restitution here was ordered in accordance with the probation report, which called for joint and several liability for the two defendants. Although we have granted the respondent's request for judicial notice of the modification of the restitution order, done by the superior court on March 21, 2018, there is confusion in the record regarding the amount of restitution. As such, the superior court is to clarify the amount of restitution due during resentencing.
DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing to permit the court to fully exercise its discretion. The court shall also clarify the amount of restitution and amend the abstract of judgment with the amount of restitution. After resentencing the court shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
[1] All further statutory references are to the Penal Code unless otherwise specified.
