P. v. Herrera

Filed 6/27/06 P. v. Herrera CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Ronn M. Couillard, Judge.

Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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Jovany Gomez Herrera pled no contest to two counts of carjacking and an enhancement for use of a firearm during the commission of each of the crimes. (Pen. Code, §§ 215, subd. (a),^[1] 12022.53, subd. (b) & 12022, subd. (a)(1).) Jovany committed these crimes with his brother, Juan Herrera.^[2] Jovany also pled no contest to possession of a firearm by a felon (§ 12021, subd. (a)(1)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and resisting arrest (§ 148, subd. (a)(1)). When accepting the plea, the trial court agreed it would impose a sentence no greater than 19 years in prison. Jovany received this sentence at the sentencing hearing.

Jovany argues the trial court erred in imposing the sentence on each count consecutively, instead of concurrently. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Jovany and his brother Juan obtained handguns, apparently from a fellow gang member. Jovany used his handgun to carjack a vehicle, while Juan used his handgun to carjack a second car. The two carjackings occurred within minutes of each other and in the same area. Juan crashed the car he stole during the escape. Jovany picked up Juan in the vehicle he stole. Shortly thereafter the brothers were spotted by police officers driving the stolen vehicle. When the officers attempted to stop the vehicle, Jovany accelerated away at a high rate of speed. The vehicle crashed into a house when Jovany failed to negotiate a high-speed turn. Fortunately, none of the occupants of the house were injured.

Jovany and Juan both ran from the crash site but were captured after a short chase. Two handguns and the victims' personal property were recovered by officers. The respective victims identified Jovany and Juan as the individuals who stole their cars. Methamphetamine and a pipe for smoking methamphetamine were recovered during a search of Jovany and the police car in which he was transported. The police also recovered a sawed-off shotgun from Jovany's residence.

One of the guns recovered by the police was identified as the gun used in a gang-related assault a few nights earlier in which three victims received minor gunshot injuries.

Jovany was charged with shooting at an inhabited dwelling (§ 246), three counts of assault with a firearm (§ 245, subd. (a)(2)), two counts of carjacking (§ 215, subd. (a)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), possession of a short-barreled shotgun (§ 12020, subd. (a)(1)), possession of ammunition by a felon (§ 12316, subd. (b)(1)), and resisting arrest (§ 148, subd. (a)(1)). Jovany also was charged with either personally using a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1)), or being involved in a crime during which a principal personally used a firearm (§§ 12022, subd. (a)(1), 12022.53, subds. (b), (d) & (e)(1)) in the section 215, 245, and 246 offenses. Finally, the sentencing provisions of the Street Terrorism Enforcement and Prevention Act were invoked pursuant to section 186.22, subdivision (b)(4).

Pursuant to a negotiated plea agreement, Jovany pled no contest to both carjacking counts, possession of a firearm by a felon, possession of a controlled substance, evading a police officer, and resisting arrest. Jovany also admitted the section 12022.53, subdivision (b) and section 12022, subdivision (a)(1) enhancements. In exchange for the plea, the district attorney agreed to dismiss the remaining counts. The trial court indicated the maximum sentence would be 19 years.

The trial court imposed a midterm sentence of five years on the first carjacking count, and imposed the sentence on the remaining counts and enhancements consecutively, for a total term of 19 years.

DISCUSSION

Jovany argues the trial court erred when the sentences on the subordinate counts were imposed consecutively, instead of concurrently.

The decision to impose consecutive or concurrent sentences in any particular case is left to the sound discretion of the trial court. (People v. Bradford (1976) 17 Cal.3d 8, 20.) California Rules of Court, rule 4.425^[3] provides guidelines to the trial court when making this decision. This rule states the criteria affecting the decision to impose consecutive sentences include (1) whether the crimes and their objectives were independent of each other; (2) whether the crimes involved separate acts, or threats, of violence; (3) whether the crimes were committed at different times or places, or were committed closely in time and place to indicate a single period of aberrant behavior; and (4) any other circumstances in aggravation or mitigation that were not used to impose an aggravated term, enhance the sentence, or were an element of the crime. (Rule 4.425(a), (b).)

Jovany argued at the sentencing hearing that the sentences should be imposed concurrently because the crimes were committed in a very short time period, which indicated a single period of aberrant behavior. The trial court rejected this argument, finding the crimes were separate and distinct criminal events.

Jovany argues the trial court erred in its sentencing decision. The fallacy of Jovany's argument is demonstrated in his opening brief where he argues â€