P. v. Gomez

Filed 10/19/06 P. v. Gomez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This case, along with four others we address in separate opinions,[1] arises from a violent street fight between rival gang members. Jose Anthony Gomez pleaded no contest to attempted murder (Pen. Code, §§ 187, 664)[2] and assault with a deadly weapon (§ 245, subd. (a)(1)) and admitted great bodily injury (§ 12022.7) and gang-related enhancements (§ 186.22, subd. (b)). While some of his codefendants received long sentences, approaching or exceeding 20 years in length, Gomez was sentenced to only eight years imprisonment. On appeal, Gomez argues his sentence on the assault charge should have been stayed pursuant to section 654, and he challenges the imposition of a $20 court security fee. We shall amend the abstract of judgment to correct typographical errors, but in all other respects we affirm.

BACKGROUND

On August 25, 2002, police officers responded to a report of a fight involving several people.[3] They arrived to find two individuals lying on the ground covered in blood. Both appeared to have multiple stab wounds and other visible injuries, and one of the victims was unresponsive. En route to the hospital, victim Grame Kanongataa said he and his friends were at the Arco gas station when they were attacked by a group of approximately 14 people. Kanongataa appeared to have been drinking alcohol. He refused to answer further questions about the incident and became so combative with hospital staff that he had to be restrained. Kanongataa suffered 10 to 12 puncture wounds during the fight. These were stapled closed and he was discharged from the hospital the same night.

Victim William Rodriguez drifted in and out of consciousness on the way to the hospital, and he appeared to be highly intoxicated. He was mostly unresponsive to questions about the incident but eventually stated that he was cleaning a car windshield when he was attacked by a group of men. At the hospital, exploratory surgery was performed to determine the extent of Rodriguez’s injuries. He had sustained stab wounds and a deep puncture wound to his torso, near the liver, but the internal organs remained undamaged. Rodriguez had also been struck several times with a blunt instrument.

Witnesses interviewed at the scene reported that the victims had been assaulted on the gas station’s sidewalk and then chased into the road by a group of individuals who fled before the police arrived. The assault appeared gang-related. The attackers, who appeared to be members of the Sureño gang, rode in as many as five vehicles. Of these, witnesses described only three: a green Volkswagen Jetta, a white Ford Mustang, and a white Jeep-type vehicle. One of these vehicles ran into Kanongataa, knocking him to the ground.

When he was interviewed, Erlin Rodriguez, William’s brother, referred to the attackers as “ ‘scraps,’ “ a derogatory name for members of the Sureño gang, and he admitted he and William were Norteño gang members. Erlin said he had yelled a derogatory statement about the Sureño gang to some passing cars. These cars stopped and the attackers emerged, yelling derogatory remarks about Norteños and running toward him. As Erlin fled, pursued by Antonio Hernandez, he yelled to William and Grame for help. Erlin witnessed the ensuing fight. He told police one of the attackers hit William with an “ ‘ASP’ style baton,’ “ and the assailants hit and kicked William numerous types after he fell to the ground.

Later that night, Hernandez and other individuals brought Luis Santana to the hospital for treatment of a stab wound to Santana’s arm. Police officers who reported to the hospital noticed several of these individuals had blood stains on their clothing, and they were not forthcoming in explaining what had happened. Santana initially told police he had been at a wedding reception, where he became extremely intoxicated. He did not know where he went afterward but believed he cut his arm when he fell onto a piece of glass. Later, on September 5, 2002, Santana acknowledged to police that he had been involved in the altercation, but he claimed he was the one who was attacked. He admitted striking William Rodriguez with a black stick but said he did so only after Rodriguez stabbed him. Hernandez also claimed the victims provoked the fight. Though he admitted being a gang member, Hernandez denied assaulting or stabbing anyone, claiming he had only watched the fight and chased one of the victims. He refused to identify anyone except Santana.

A female witness who had been riding in Santana’s car said many of the suspects were at a wedding reception earlier that evening, and afterward she went with Santana and Hernandez to Benjamin Moreno’s house. Many Sureño gang members were present here. Around 1:00 a.m., four to five carloads of people left to go to another location. Santana drove his Volkswagen, taking Hernandez, the witness and another female passenger. She also recalled that Martin Mesa drove his white Ford Taurus and took several passengers. While driving, the group encountered the victims at a gas station, and gang-related slurs were exchanged. Then, the men exited their cars and attacked the victims. The witness believed someone in her group may have passed around knives. Although she initially said Santana had cut his arm on a piece of glass after the wedding reception, the witness later said she believed he was accidentally stabbed by one of his fellow gang members. She identified appellant Jose Gomez as having been at Moreno’s house, and she identified Santana, Moreno, Cesar Ramirez and Sergio Zarate as having been involved in the assault. Another female witness identified the same individuals plus Hernandez, Mesa, Jesus Flores and Mauricio Cuevas. Although this witness did not recall who had stabbed the victims, she knew Cuevas and Moreno were carrying small knives before the assault.

The police interviewed several suspects. Efrain Gonzalez said he was at a party in Geyserville that evening and was only told later that there had been a fight of “red versus blue” at a gas station. He thought Norteño gang members were hurt in the fight. Ramirez said he and Gomez had gone to a party in Geyserville and then to a wedding reception in Rohnert Park. He admitted following a white Ford Taurus to Rohnert Park but denied stopping at a gas station or being in a gang fight.

Gomez admitted associating with Sureño gang members. He described the confrontation at the gas station and told police gang slurs were being yelled. Individuals emerged from all of the cars to participate in the assault, and Gomez specifically identified Ramirez and Gonzalez as assailants. Gomez said he also got out of the car but claimed he did not join in the fighting. Someone was using a club during the fight and several people had knives. Evidence obtained in the investigation suggested Gomez had hit Kanongataa with his vehicle when he fled the scene of the fight.

On December 15, 2003, the grand jury returned an indictment against 14 defendants. Eventually, after motions and changes of plea resulted in the early resolution of charges against some defendants, a fourth amended indictment was filed against only six defendants: Cuevas, Delgado, Gomez, Hernandez, Mesa and Santana. Count I charged them all with the attempted premeditated murder of William Rodriguez (§§ 664, subd. (a), 187, subd. (a)); count II charged them with the attempted premeditated murder of Grame Kanongataa; count III charged them with assault with a deadly weapon against Rodriguez (§ 245, subd. (a)(1)); counts IV and V charged them with assault with a deadly weapon against Kanongataa (count IV referring to the use of knives and baton-type weapons, and count V referring to use of a motor vehicle); count VI charged them with assault with a deadly weapon against Erlin Rodriguez; count VII charged them with participation in a street gang (§ 186.22, subd. (a)); and count VIII charged Santana with threatening a witness (§ 136.1, subd. (c)(1)). The indictment also alleged enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and commission of crimes to benefit a criminal street gang (§ 186.22, subd. (b)(1)).[4]

On October 13, 2004, Gomez waived his rights and pleaded no contest to the attempted murder of William Rodriguez and the assault with a deadly weapon on Grame Kanongataa. (§§ 187, 664, 245, subd. (a)(1).) He also admitted enhancements to both charges for personally inflicting great bodily injury and committing crimes to benefit a street gang. (§§ 12022.7, 186.22, subd. (b)(1).) Although the prosecution sought a maximum punishment of 26 years imprisonment, the trial court sentenced Gomez to serve a total term of only eight years, reflecting a mitigated term of five years on the attempted murder charge plus three years for the great bodily injury enhancement.[5] The court also imposed a lower term of two years on the assault charge, with a three-year great bodily injury enhancement, but these sentences were ordered to run concurrently. Based on Gomez’s young age, past employment and lack of a criminal record, the court struck both gang enhancements in the interest of justice. Gomez was ordered to pay victim restitution of $10,000 and a court security fee of $20.

DISCUSSION

I. No Section 654 Stay of Sentence Was Required

Gomez first claims the court erred in imposing concurrent sentences for attempted murder and assault. He argues the assault sentence should have been stayed pursuant to section 654[6] because the offenses were committed as part of an indivisible course of conduct.

“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.]” (People v. Deloza (1998) 18 Cal.4th 585, 591.) Where the statute applies, neither consecutive nor concurrent sentences may be imposed. (Id. at p. 592; People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239.) Whether a course of conduct is indivisible for purposes of section 654 depends on whether the defendant harbored multiple criminal objectives in committing the offenses. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) Gomez asserts substantial evidence does not support a finding that he harbored multiple objectives; rather, he states, “both offenses . . . were part and parcel of a gang-related melee.”

However, Gomez neglects to mention that these violent offenses were committed upon separate victims. “Section 654 does not . . . preclude multiple punishment when the defendant’s violent act injures different victims. [Citations.]” (People v. Deloza, supra, 18 Cal.4th at p. 592.) Even if the “defendant entertained but a single principal objective during an indivisible course of conduct, he may nevertheless be punished for multiple convictions if during the course of that conduct he committed crimes of violence against different victims. [Citations.] As the purpose of section 654 ‘is to insure that defendant’s punishment will be commensurate with his criminal liability,’ when he ‘commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,’ his greater culpability precludes application of section 654. (Neal v. State of California [(1960)] 55 Cal.2d 11, 20-21.)” (People v. Miller (1977) 18 Cal.3d 873, 885.) Because Gomez pleaded no contest to crimes against two individuals--the attempted murder of William Rodriguez and the felonious assault of Grame Kanongataa--the imposition of concurrent sentences for these crimes does not offend section 654.

II. The $20 Court Security Fee Was Properly Imposed

In his opening brief and in a supplemental letter brief, Gomez argues the court security fee imposed pursuant to section 1465.8, subdivision (a)(1) must be stricken. Section 1465.8, subdivision (a)(1) provides, in relevant part, “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except [certain] parking offenses . . . .” The statute went into effect on August 17, 2003 (Stats. 2003, ch. 159, § 25), almost a year after Gomez committed the instant offenses but more than a year before he entered a plea and was sentenced.

Because he committed the subject offenses before the effective date of section 1465.8, Gomez argues imposition of the court security fine violates the constitutional prohibition against ex post facto laws and violates the statutory prohibition against retroactive application of laws (§ 3). The Supreme Court granted review this year in two cases raising these issues. (People v. Alford (2006) 137 Cal.App.4th 612, review granted on ex post facto issue May 10, 2006, S142508, supplemental briefing ordered on retroactivity issue Aug. 23, 2006; People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415.)

A. No Ex Post Facto Violation

“The ex post facto clause of the United States Constitution applies ‘only to statutes imposing penalties,’ i.e., punishment. [Citation.] Its counterpart in the California Constitution is analyzed identically. [Citation.] The determination of whether a statute is penal in nature is based in part upon the purpose of the statute. [Citation.] ‘If the statute imposes a disability for the purposes of punishment--that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.’ [Citation.]” (People v. Rivera (1998) 65 Cal.App.4th 705, 708-709.) “In assessing whether a statute imposes punishment, we inquire (1) whether the Legislature intended the sanction to be punitive and, if not, (2) whether the sanction is so punitive in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the Legislature’s intent. [Citations.] ‘The first part of the test (“intent”) looks solely to the declared purpose of the legislature as well as the structure and design of the statute. [Citations.] The second part of the test (“effects”) requires the party challenging the statute to provide “the clearest proof” that the statutory scheme is so punitive either in purpose or effect as to negate the State’s nonpunitive intent. [Citations.]’ [Citation.]” (Id. at pp. 709-710, fn. omitted.)

After exhaustively examining these issues, Division Five of the Second District Court of Appeal held the $20 court security fee of section 1465.8, subdivision (a)(1) does not violate ex post facto principles when imposed on defendants whose crimes were committed before its effective date. (People v. Wallace (2004) 120 Cal.App.4th 867.) The statute’s expressly stated purpose is “[t]o ensure and maintain adequate funding for court security” (§ 1465.8, subd. (a)(1)), and the legislative history surrounding its enactment as part of emergency legislation showed the primary purpose of the fee was budgetary, not punitive. (People v. Wallace, supra, 120 Cal.App.4th at pp. 875-876.) This legislative history was also replete with references to the $20 charge as a “fee” rather than a “fine,” a choice of words further indicating the Legislature did not intend the court security fee to be a punishment. (Id. at p. 876; see also People v. High (2004) 119 Cal.App.4th 1192, 1199 [contrasting Legislature’s choice of a punitive word, “penalty,” with the nonpunitive word “fee”].) As to the second prong of ex post facto analysis, Wallace concluded imposition of a $20 fee to defray court security costs is not so punitive in effect as to negate the Legislature’s intent to treat the fee as a civil disability. (People v. Wallace, supra, 120 Cal.App.4th at pp. 876-878.) The amount is small, and Wallace observed that the same $20 court security fee is collected in civil and probate cases. (Id. at p. 877; see former Gov. Code, § 69926.5, subd. (a) [also enacted by Assembly Bill No. 1759], repealed by Stats. 2005, Ch. 5, § 115, eff. Jan. 1, 2006.)

Gomez argues that Wallace was wrongly decided. He maintains the fee cannot be “civil in nature” because “[i]t only applies to criminal convictions.” This argument ignores the meaning of the word “civil” in ex post facto decisions. Here, “civil” refers to a measure that is nonpenal or nonpunitive in nature. (See People v. Rivera, supra, 65 Cal.App.4th at pp. 709-710.) Gomez’s complaint also fails to account for the Legislature’s imposition of an identical fee in civil cases (former Gov. Code, § 69926.5, subd. (a)); see People v. Wallace, supra, 120 Cal.App.4th at pp. 875-876) and the Legislature’s manifestly nonpunitive purpose in enacting the fee, which is declared in the opening words of the statute: “[t]o ensure and maintain adequate funding for court security.” (§ 1465.8, subd. (a)(1).) We agree with the persuasive reasoning of Wallace and conclude imposition of the court security fee here does not violate the ex post facto clauses of the federal and state Constitutions.

B. No Retroactivity Violation

Gomez also argues the $20 court security fee must be stricken because it cannot be applied retroactively to his offense. Section 3 provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.” The statute “embodies the general rule that when there is nothing to indicate the contrary it will be presumed that the Legislature intended a statute to operate prospectively and not retroactively. ‘That rule of construction, however, is not a straitjacket. . . .’ [Citation.]” (In re Chavez (2004) 114 Cal.App.4th 989, 993.) “There remains the question of what the terms ‘prospective’ and ‘retrospective’ mean.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.)

“In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. [Citations.] A law is not retroactive ‘merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.’ [Citation.]” (People v. Grant (1999) 20 Cal.4th 150, 157.)

Applying these principles, we join our colleagues in Division One in concluding the court security fee of section 1465.8 may be imposed for offenses that occurred before its effective date. (See People v. Alford, supra, 137 Cal.App.4th 612, review granted May 10, 2006, S142508.)

Gomez committed the subject offenses before the effective date of section 1465.8, but he pleaded no contest and was sentenced for them more than a year after this statute went into effect. In section 1465.8, subdivision (a)(1), the Legislature stated its intent that a $20 fee “be imposed on every conviction.” Because Gomez was not convicted of the offenses in this case until after section 1465.8 went into effect, the statute operates only prospectively with respect to him. Although his conviction was dependent upon his earlier commission of the offenses, “the last act or event necessary to trigger application of the statute” was the conviction. (People v. Grant, supra, 20 Cal.4th at p. 157; see also People v. Bailey (2002) 101 Cal.App.4th 238, 242-243 [section 186.30 gang registration requirement for “any person convicted in a criminal court“ was not retroactive when applied to a defendant who was convicted after the statute’s effective date].) Our conclusion that the Legislature intended to impose the fee immediately, to all convictions after section 1465.8’s effective date, is also supported by legislative history showing section 1465.8 was enacted as an emergency budgetary measure, and by the statute’s expressly nonpunitive purpose of funding court security. Furthermore, imposition of the fee imposes a minimal burden on defendants and does not interfere with any antecedent rights.

III Abstract of Judgment Must Be Amended

The trial court sentenced Gomez to mitigated terms of five years on the attempted murder charge and two years on the assault charge; however, the abstract of judgment, while it correctly reflects the length of these terms, mistakenly indicates that they are the statutory middle terms. Both parties agree the abstract must be amended to correct this error.

DISPOSITION

The abstract of judgment is ordered amended to replace the two instances of “M” in the “term” column with “L,” thus reflecting that Gomez was sentenced to the lower terms on counts I and IV. In all other respects, the judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Siggins, J.

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[1] People v. Cuevas (Oct. 19, 2006, A109146), People v. Delgado (Oct. 19, 2006, A108852), People v. Hernandez (Oct. 19, 2006, A109214) and People v. Mesa (Oct. 19, 2006, A109157).

[2] All statutory references are to the Penal Code.

[3] In light of Gomez’s plea, our recitation of facts derives from the probation report. (See People v. Barasa (2002) 103 Cal.App.4th 287, 290, fn. 1.)

[4] An additional enhancement to count I was alleged against Santana only for weapons use. (§ 12022, subd. (b)(1).)

[5] In contrast, his codefendants received much longer prison sentences (some as high as 20 to 21 years).

[6] The statute provides, in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)