Filed 08/22/17 P. v. Espinoza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired Judge of the Tulare Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On April 17, 2015, defendant Alejandro Romero Espinoza was sentenced in four separate criminal cases arising out of convictions for assault, conspiracy to commit assault, weapons charges and drug possession.[1] He advances four claims on appeal relating to three of those four cases.

In 2011, defendant was charged in the first case with carrying a concealed firearm. (Former Pen. Code, § 12025, subd. (a)(1).)[2]^, [3] He pled no contest to the charge, and the trial court sentenced him to 180 days in jail and placed him on probation for three years.

In 2013, officers conducting a probation search of defendant’s bedroom located a gun under his mattress. This probation violation led to new charges in the second case: possession of a firearm by a felon and possession of a controlled substance. (Pen. Code, § 29800, subd. (a)(1); Health & Saf. Code, § 11377, subd. (a).) Defendant pled no contest to the two new charges, and the trial court sentenced him to 365 days in jail and placed him on probation. He also admitted the probation violation, and the court sentenced him to 180 days in jail, which was deemed served, and reinstated probation.

In 2014, defendant violated probation in the first and second cases when he failed to contact probation, participate in a substance abuse program and abstain from drug use. Approximately one month later, new charges were filed against defendant in the third and fourth cases. In the third case, defendant was charged with attempted murder (§§ 664/187, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), assault with a deadly weapon (pipe) (§ 245, subd. (a)(1)) and conspiracy to commit assault (§§ 664/182, subd. (a)(1)).[4] In the fourth case, defendant was charged with possession of a sawed-off shotgun (§ 33215), possession of a firearm by a felon (§ 29800, subd. (a)(1)), possession of ammunition by a felon (§ 30305, subd. (a)(1)) and giving false information to a police officer (§ 148.9, subd. (a)).

The trial court found defendant violated his probation in the first two cases, but trailed sentencing pending disposition in his third and fourth cases. In the fourth case, defendant pled no contest to possession of a sawed-off shotgun and possession of a firearm by a felon, and the charges for ammunition possession and giving false information to a police officer were dismissed. Defendant’s third case then went to trial. The jury acquitted him of attempted murder and assault with a firearm (counts 1 & 2), but convicted him of assault with a deadly weapon and conspiracy to commit assault with a deadly weapon (counts 3 & 4). The jury also found the gang enhancement allegation attached to the assault and conspiracy counts true, but found the firearm enhancement allegation not true. (§§ 186.22, subd. (b), 12022.5, subd. (a).)

At sentencing, the trial court imposed an aggregate term of 12 years 4 months in state prison, as follows. In the third case, the court sentenced defendant to the upper term of four years for assault with a deadly weapon, plus five years for the gang enhancement, and one year (one-third of the middle term) for conspiracy to commit assault, plus one year eight months for the gang enhancement. In the fourth case, defendant was sentenced to a consecutive term of eight months (one-third of the middle term) for possession of a firearm by a felon and a concurrent term of two years for firearm possession. Defendant was then sentenced in the first case to a concurrent term of two years for firearm possession and in the second case to a concurrent term of two years for firearm possession and 180 days for misdemeanor possession of a controlled substance (deemed served).

On appeal, defendant claims that in his third case, the trial court erred when it failed to instruct the jury on the definition of deadly weapon and failed to stay his sentence for the conspiracy under section 654. The People dispute the instructional error claim, but concede the conspiracy sentence should have been stayed under section 654. The parties disagree, however, on the remedy concerning the $6,000 restitution fine imposed in the case under section 1202.4, subdivision (b). Defendant seeks remand for a recalculation of the restitution fine, but the People argue that because the total per-case restitution fine imposed was within the discretionary range permitted under the statute, defendant did not suffer any prejudice and remand for recalculation is unnecessary.

Additionally, defendant claims on appeal that the trial court erred in calculating his presentence custody credits in the first case and that the abstract of judgment contains a clerical error regarding the sentence imposed for firearm possession in his fourth case. The People concede these errors as well.

We conclude that any error in failing to define deadly weapon for the jury was harmless beyond a reasonable doubt. We concur with the parties that the trial court erred in failing to stay the conspiracy sentence under section 654 and we order the sentence stayed. Regarding the $6,000 restitution fine imposed, we reject the People’s prejudice argument and remand the matter for recalculation of the fine amount. On remand, the defendant’s presentence custody credits must also be recalculated and the trial court shall issue an amended abstract of judgment correcting these errors along with the clerical error pertaining to defendant’s firearm possession sentence in the fourth case.

DISCUSSION

I. Failure to Instruct Jury on Definition of Deadly Weapon

A. Background

1. Assault with a Deadly Weapon

In his third case, defendant was convicted by jury of violating section 245, subdivision (a)(1), which prohibits assault with a deadly weapon or instrument other than a firearm. Under the statute, “a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029; accord, People v. Perez (2016) 3 Cal.App.5th 812, 824, review granted Jan. 11, 2017, S238354.) Some objects, including dirks and daggers, are deadly weapons as a matter of law while other objects, including the metal pipe at issue in this case, are not deadly per se but “may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (People v. Aguilar, supra, at p. 1029; accord, People v. Perez, supra, at p. 824.) The object need not actually be used with deadly force (In re D.T. (2015) 237 Cal.App.4th 693, 699), and actual injury to the victim is not required, although any resulting injuries are relevant to the inquiry (People v. Brown (2012) 210 Cal.App.4th 1, 7).

2. Facts Underlying Assault Conviction

Victim P.M., a Sureño gang member, and defendant, a Norteño gang member, lived near one another in Exeter in Tulare County. Shortly before noon on April 18, 2014, P.M. walked to the nearby 98 Cent Store to buy markers and a lighter. On his way to the store, P.M. saw people in front of defendant’s house and spotted a truck belonging to Cesar Santilan, who is a Norteño gang member. On his way home from the store, P.M. noticed the people were gone from defendant’s house, as was Santilan’s truck.

P.M. was then jumped by several individuals. Defendant was present and standing at a street corner. Santilan’s truck was in the roadway, blocking an alley and there was a third person there holding a metal pipe in his hand. The person with the pipe swung it at P.M. and hit him in the back of the head, leaving a big bump. P.M. testified that when he was hit, things went “fuzzy.”[5] After a scuffle over the pipe ensued, P.M. started running. Defendant allegedly pulled out a gun and fired. P.M. ran around Santilan’s truck and down the alley, escaping.

One witness heard a gunshot and called 911. Another witness heard a loud noise and found a metal pipe behind his garage that had not been there earlier in the morning. Police did not locate a gun or bullet casings, but found one hole in the ground that was consistent with a bullet shot. P.M. testified he has a scar from the bullet wound and he went to the hospital for the head injury.

B. Trial Court’s Sua Sponte Instructional Duty

Trial courts have a sua sponte duty to instruct “‘on those general principles of law that are closely and openly connected with the facts before the court and necessary for the jury’s understanding of the case.’” (People v. Simon (2016) 1 Cal.5th 98, 143, citing People v. Price (1991) 1 Cal.4th 324, 442; accord, People v. Cruz (2016) 2 Cal.App.5th 1178, 1183.) “[C]ommonly used words that have no technical meaning peculiar to the law impose no obligation on the court to provide definition in the absence of a request.” (People v. Lucas (2014) 60 Cal.4th 153, 292, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53–54, fn. 19; accord, People v. Nguyen (2015) 61 Cal.4th 1015, 1050–1051.) In contrast, “[a] word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.] Thus, … terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance.” (People v. Estrada (1995) 11 Cal.4th 568, 574-575; accord, People v. Jennings (2010) 50 Cal.4th 616, 670.)

C. Any Error Was Harmless

Citing People v. Pruett (1997) 57 Cal.App.4th 77, 82 and People v. Cabral (1975) 51 Cal.App.3d 707, 711, the parties agree the trial court erred in failing to instruct the jury on the definition of a deadly weapon.[6]^, [7] The parties disagree, however, on whether the error was harmless beyond a reasonable doubt under the federal standard articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman).

The trial court’s failure to instruct the jury on the definition of deadly weapon is subject to harmless error analysis (Neder v. United States (1999) 527 U.S. 1, 9–10; Hedgpeth v. Pulido (2008) 555 U.S. 57, 60–62; People v. Merritt (2017) 2 Cal.5th 819, 821–822) and, under the Chapman standard, we “must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error” (People v. Merritt, supra, at p. 831; accord, Neder v. United States, supra, at pp. 15–16; People v. Gonzalez (2012) 54 Cal.4th 643, 663). “n order to conclude that an instructional error ‘“did not contribute to the verdict”’ within the meaning of [i]Chapman [citation] we must ‘“find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record”’ [citations].” (People v. Brooks (2017) 3 Cal.5th 1, 70.)

In this case, we have no difficulty concluding that any error in failing to instruct the jury on the definition of a deadly weapon was harmless. We are unpersuaded by defendant’s characterization of the injury as essentially a bruise, and we do not agree with his contention that “the injury actually inflicted discredits a finding that the pipe as used qualified as a deadly weapon” or that the pipe was not sufficiently described. The jury saw a photo of the metal pipe, which was approximately three feet long, and P.M. testified the individual wielding the pipe hit him on the back of the head with it, causing a large bump. Although no medical evidence was presented, P.M. testified the blow made everything fuzzy and, at some point, he went to the hospital. An officer who observed the injury said it was a lump approximately one inch in diameter and consistent with being struck with a heavy object.

Although the jury inquired during deliberation whether P.M. suffered a concussion, as defendant states, we do not agree with him that this inquiry suggests jurors would have been “swayed” had deadly weapon been defined under CALCRIM No. 875 as “any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” The trial court, after conferring with the parties, informed the jury there was nothing in the record regarding a concussion and the jury had been instructed correctly that defendant’s act need not have caused any injury. (People v. Brown, supra, 210 Cal.App.4th at p. 7.) The jury was not required to suspend common sense and here, the victim was hit in the back of the head with a three-foot long metal pipe with force sufficient to stun him and leave a large bump. (See id. at p. 13 [ample evidence BB gun was used in a manner capable of inflicting and likely to inflict great bodily injury; People v. Cabral, supra, 51 Cal.App.3d at pp. 712–713 [homemade ice pick-like device used to stab someone, resulting in victim’s hospitalization, obviously a deadly weapon].)

Moreover, had defendant wanted to dispute whether a metal pipe is a deadly weapon, he could have done so. (See People v. Merritt, supra, 2 Cal.5th at p. 832 [“‘[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.’”].) Instead, given that defendant was charged with attempted murder and assault with a firearm, the focus of his trial strategy was the victim’s credibility and the lack of independent corroboration.

Given all these considerations, we conclude the failure to instruct the jury on the definition of deadly weapon was harmless beyond a reasonable doubt; that is, the error did not contribute to the verdict.[8]

II. Failure to Stay Sentence for Conspiracy Under Section 654

A. Background

The statutory purpose underlying section 654 “is to ensure that a defendant’s punishment will be commensurate with his culpability.” (People v. Correa (2012) 54 Cal.4th 331, 341.) To that end, the statute prohibits courts from imposing multiple punishment for the same act or omission. (People v. Corpening (2016) 2 Cal.5th 307, 311.) “Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘“intent and objective”’ or multiple intents and objectives.” (Id. at pp. 311–312.)

With respect to criminal conspiracy, a defendant may not be punished twice for both conspiracy and a substantive offense that was the object of the conspiracy. (In re Cruz (1966) 64 Cal.2d 178, 180–181; People v. Flores (2005) 129 Cal.App.4th 174, 184–185; People v. Vargas (2001) 91 Cal.App.4th 506, 570–71; People v. Ramirez (1987) 189 Cal.App.3d 603, 615–616.) If the conspiracy had an objective separate from the substantive offense for which the defendant is being punished, however, section 654’s bar against multiple punishment does not apply. (In re Cruz, supra, at pp. 180–181; People v. Flores, supra, at pp. 184–185; People v. Vargas, supra, at pp. 570–571; People v. Ramirez, supra, at pp. 615–616.)

B. Trial Court Erred

The jury convicted defendant of assault with a deadly weapon and conspiracy to commit assault with a deadly weapon, and the trial court imposed consecutive sentences. Defendant argues this was error under section 654 and the People agree because the two crimes shared the same objective. (In re Cruz, supra, 64 Cal.2d at pp. 180–181; People v. Flores, supra, 129 Cal.App.4th at pp. 184–185; People v. Vargas, supra, 91 Cal.App.4th at pp. 570–571; People v. Ramirez, supra, 189 Cal.App.3d at pp. 615–616.)

It has long been the rule that when double punishment is imposed in error, the offense carrying the lesser punishment is stayed. (People v. Beamon (1973) 8 Cal.3d 625, 691; People v. McFarland (1962) 58 Cal.2d 748, 762-763; accord, People v. Spirlin (2000) 81 Cal.App.4th 119, 131; People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) In this case, as previously set forth, the trial court sentenced defendant to nine years for assault and two years eight months for conspiracy. Therefore, as the parties agree, the conspiracy sentence must be stayed.[9]

B. Remand for Recalculation of Restitution Fine Required

Pursuant to section 1202.4, subdivision (b), courts are required, absent circumstances not present here, to impose a restitution fine of no less than $300 and no more than $10,000.[10] The amount imposed is discretionary, so long as it falls within the statutory range. In addition, courts may, but are not required to, follow the formula set forth in subdivision (b)(2) of section 1202.4. In this case, the court followed the probation department’s recommendation and imposed a $6,000 restitution fine in the case.

Restitution fines are punishment (People v. Hanson (2000) 23 Cal.4th 355, 362; People v. Soto (2016) 245 Cal.App.4th 1219, 1235 (Soto) and, therefore, section 654’s bar against multiple punishment applies to restitution fines (Soto, supra, at p. 1235; People v. Sencion (2012) 211 Cal.App.4th 480, 483 (Sencion)). Hence, when a trial court imposes a restitution fine in a case, the fine may not be based on a count stayed under section 654. (Soto, supra, at p. 1235; Sencion, supra, at p. 483; accord, People v. Carlson (2011) 200 Cal.App.4th 695, 710.)

The parties’ disagreement in this case relates to the remedy for a restitution fine imposed in a case where section 654 applies to a count. Without any citation to authority and without addressing the decision in Sencion, which is cited by the People, defendant seeks remand so the trial court may recalculate restitution, possibly exercising its discretion to lower it. Citing People v. Coelho (2001) 89 Cal.App.4th 861, 889, defendant also points out that nothing suggests remand would be an idle act and judicial economy would not be offended because remand for recalculation of credits is required, as discussed post.[11] The People, relying on Sencion, respond that remand is not necessary, reasoning that because the trial court exercised its discretion to impose a restitution fine that was well within the statutory range, defendant suffered no prejudice.

We conclude remand is required, but, as we explain, our decision does not rest on a prejudice inquiry as articulated in Sencion and urged by the People. In Sencion, the defendant was convicted of four counts, two of which were stayed under section 654. (Sencion, supra, 211 Cal.App.4th at pp. 482–483.) On review, the Court of Appeal found, in relevant part, that the restitution fine amount of $1,100 imposed by the trial court was based on all four counts and $400 of the fine was based on the two counts stayed under section 654. (Sencion, supra, at pp. 482–483.) The court concluded, however, that the defendant did not suffer any prejudice because the total fine amount of $1,100 was well within the statutory range, which was $200 to $10,000 at the time. (Id. at p. 483.)

In this case, the court imposed the recommended $6,000 restitution fine. How the amount was calculated is not clear from the record, as the court neither mentioned the counts individually nor followed the discretionary statutory formula, which would have resulted in a fine of $7,080. Although defendant acknowledges the trial court would not be required to reduce the fine amount on remand, he argues it might do so and if it were to follow the discretionary statutory formula on remand, it could reduce his fine to $5,400.

Restitution fines are punishments to which section 654 applies and “[w]hen a court imposes multiple punishments in violation of section 654, it acts in excess of its jurisdiction .…” (Soto, 245 Cal.App.4th at p. 1234, citing People v. Le (2006) 136 Cal.App.4th 925, 931.) “‘An unauthorized sentence is just that. It is not subject to a harmless error analysis. Nor does it ripen into a sentence authorized by law with the passage of time.’” (Soto, supra, at p. 1235, quoting In re Birdwell (1996) 50 Cal.App.4th 926, 930.) Thus, imposition of a restitution fine in this case based on the conspiracy count violates section 654 and we cannot resolve it through a prejudice analysis. (Soto, supra, at p. 1235.)

Unlike the courts in Soto and Sencion, we cannot determine from the record whether the $6,000 restitution fine was based in part on the conspiracy count. (Soto, supra, 245 Cal.App.4th at p. 1236 [striking unauthorized $150 restitution fine]; Sencion, supra, 211 Cal.App.4th at pp. 482–483 [$400 of the $1,100 restitution fine attributed to stayed counts]; see People v. Tarris (2009) 180 Cal.App.4th 612, 627–628 [trial court specified restitution breakdown in minute order and appellate court stayed the restitution amounts attributed to two counts stayed under section 654]; People v. Le, supra, 136 Cal.App.4th at pp. 935–936 [trial court followed optional statutory formula, allowing appellate court to omit stayed count and recalculate fine on review].) We agree with the parties that the restitution fine amount imposed in this case was within the permissible statutory range, but given the trial court’s failure to apply section 654 to the conspiracy count and the record’s silence regarding calculation of the fine amount, remand is required so the trial court may recalculate the amount in light of the stayed conspiracy count. (People v. Dibacco (2004) 117 Cal.App.4th Supp. 1, 5.)

III. Credit Calculation Error

A criminal defendant is entitled to credit for time served in presentence custody. (§§ 2900.5, subd. (a), 4019, subd. (a)(1).) The parties assert that at sentencing, the trial court erred in awarding defendant too few credits in Tulare Superior Court case No. VCF252586.

An appellate court may resolve presentence credit calculation issues if doing so will serve the interests of judicial economy (People v. Jones (2000) 82 Cal.App.4th 485, 493), but it is the appellant’s burden to affirmatively demonstrate his entitlement to credit for any particular time period (People v. Jacobs (2013) 220 Cal.App.4th 67, 81). Here, the parties state that pursuant to the probation report, defendant served 382 days in presentence custody, plus an additional 28 days for the time between the date of the report and sentencing, for a total of 410 days. They also agree that under section 4019, he was entitled to four days of credit for every two days served, resulting in 820 days of presentence custody credits.[12] (§ 2900.5, 4019, subds. (b), (c) & (f); Cal. Rules of Court, rule 4.472.) The trial court, however, only awarded 580 days of credit.

The parties’ position is supported by the record and, on remand, the trial court shall recalculate defendant’s presentence credits for Tulare Superior Court case No. VCF252586 and issue an amended abstract of judgment. (People v. Kunath (2012) 203 Cal.App.4th 906, 911–912.)

IV. Clerical Error in Abstract of Judgment

Finally, the abstract of judgment reflects imposition of a consecutive full term of eight months in defendant’s fourth case, Tulare Superior Court case No. VCF304082 and identified as count 1B in the abstract. However, the eight-month sentence imposed was one-third of the middle term rather than the full term. The People concede this error and the parties agree that a corrected abstract of judgment should be issued.

A trial court’s oral judgment controls and “[w]hen an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties.” (People v. Jones (2012) 54 Cal.4th 1, 89.) Accordingly, the trial court shall correct this error on remand.

DISPOSITION

Pursuant to Penal Code section 654, the sentence for conspiracy to commit assault with a deadly weapon (count 4 in Tulare Super. Ct. case No. VCF304130) is stayed and the matter is remanded for recalculation of the restitution fine under Penal Code section 1202.4, subdivision (b). The trial court shall also recalculate defendant’s presentence custody credits in Tulare Superior Court case No. VCF252586 in accordance with this opinion. An amended abstract of judgment shall be issued reflecting these changes and reflecting that the eight-month consecutive sentence on count 1B in Tulare Superior Court case No. VCF304082 is one-third of the middle term rather than the full term. The amended abstract of judgment shall be forwarded to the appropriate authorities. The judgment is otherwise affirmed.

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MEEHAN, J.

WE CONCUR:

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HILL, P.J.

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GOMES, J.