Filed 2/26/18 P. v. Trujillo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL TRUJILLO et al.,

Defendants and Appellants.


E066780

(Super.Ct.No. FVI1500732)

OPINION


APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant, Daniel Trujillo.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant, Michelle Simona Ozaeta.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Daniel Trujillo and Michelle Simona Ozaeta were charged by amended information with two counts of attempted murder. (Pen. Code, §§ 664, 187, subd. (a)(1), counts 1 & 2.) The amended information alleged that the attempted murders were committed willfully, deliberately, and with premeditation. (§ 664, subd. (a).) The amended information also alleged that Ozaeta personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) in the commission of count 1, and she personally and intentionally discharged a firearm, which caused great bodily injury (§ 12022.53, subd. (d)), in the commission of count 2. A jury found both defendants guilty of counts 1 and 2 and found that the attempted murders were committed willfully, deliberately, and with premeditation. It further found that Ozaeta personally used a handgun within the meaning of section 12022.5, subdivision (a), as to both counts. A trial court sentenced Trujillo to consecutive terms of seven years to life on counts 1 and 2, for a total indeterminate term of 14 years to life. The court sentenced Ozaeta to the indeterminate term of seven years to life on count 1, and 10 years on the firearm enhancement, plus a consecutive indeterminate term of seven years to life on count 2, and 10 years on the firearm enhancement, for a total of 20 years plus 14 years to life in state prison.
Trujillo and Ozaeta filed separate appellate briefs. We affirm.
FACTUAL BACKGROUND
Trujillo and M.V. had three children together, but were no longer in a relationship. On July 19, 2012, M.V. received a phone call from Trujillo, who was incarcerated at the time. He called to arrange for her to meet someone who was going to give her money for their children. M.V.’s niece, Y.V., drove M.V. to the meeting place. They were talking in the car, when Y.V. spotted Trujillo’s current girlfriend, Ozaeta, come up behind the car. Ozaeta walked toward the window, and Y.V. rolled the window down. Ozaeta said, “hi,” and then pulled out a gun and began firing multiple shots. M.V. told her niece to go in reverse and drive off. M.V. called 911. Y.V. suffered gunshot wounds to her chest and both arms. She also broke her right arm. M.V. suffered wounds to her neck and back.
At trial, Ozaeta testified that she and Trujillo talked on the phone “all the time” about his desire to “get rid of” M.V, and he told her he wanted M.V. shot.
ANALYSIS
I. Trujillo’s Issues Have No Merit
Trujillo argues that the abstract of judgment should be amended to reflect that the sentence in his case is to be served concurrently with the sentence he is already serving in another case in Los Angeles. He also asserts that the court imposed “two seven year to life terms without indicating the seven years was a minimum parole eligibility date.” He argues that the abstract of judgment should thus be amended to indicate that the sentences on counts 1 and 2 “are consecutive life terms with seven year minimum parole eligibility dates.” The People contend that the abstract of judgment is correct, and we agree.
A. The Abstract of Judgment is Correct
Trujillo argues that the court did not specify whether his “14 year to life” sentence would be concurrent or consecutive to a sentence of 15 years six months that he was already serving in a Los Angeles County case. The abstract of judgment and minute order also did not state whether the sentence in the current case was concurrent or consecutive to the sentence in the Los Angeles County case. However, the legal status summary indicates that the sentence in the instant case is to run consecutive to the sentence in a Los Angeles case. It states his total minimum term as 29 years six months, which is the combined total of the terms of imprisonment in the two cases (15 years six months, plus 14 years to life). Trujillo argues that, since the trial court failed to determine how the terms of imprisonment on the sentences in the instant case should run, the terms are required to be run concurrently. (§ 669, subd. (b).) Thus, he requests this court to direct the trial court to prepare an amended abstract of judgment to indicate that the sentences in the two cases are to run concurrent and to send a certified copy of the amended abstract to the CDCR.
The People concede that the sentences in the instant case must run concurrently with the sentence in the Los Angeles case, since the court did not indicate whether the sentences were to run concurrently or consecutively. “Since the judgment is silent on the matter, the law presumes concurrent sentencing.” (People v. Hill (1967) 67 Cal.2d 105, 125; see § 669, subd. (b) & People v. Chung (1962) 207 Cal.App.2d 660, 661.) However, the People point out, and we agree, that the abstract of judgment accurately reflects the trial court’s oral pronouncement of judgment that defendant was to serve a total indeterminate term of 14 years to life in prison in the instant case. Therefore, there is no error in the abstract of judgment and no basis to order an amendment.
We note that Trujillo’s issue is with the CDCR’s legal status summary, since it appears to indicate that the sentence in the instant case is to run consecutive to the sentence in the Los Angeles case. “In general, a party challenging the acts of administrative agencies must exhaust administrative remedies before resorting to the courts.” (People v. Antonio (2017) 10 Cal.App.5th 1064, 1069.) If Trujillo believes the CDCR has made an error, he must exhaust administrative remedies before resorting to the courts. He has presented no evidence indicating that he has attempted any administrative remedy with the CDCR. (See Ibid.)
Trujillo next argues that the court improperly worded his sentence as “seven years to life” on counts 1 and 2, rather than “consecutive life terms with seven year minimum parole eligibility dates.” He requests this court to direct the trial court to prepare an amended abstract of judgment and minute order accordingly
. We see no error.
Section 664, subdivision (a), provides that attempted willful, deliberate, and premeditated murder “shall be punished by imprisonment in the state prison for life with the possibility of parole.” Section 3046, subdivision (a)(1), provides that “[a]n inmate imprisoned under a life sentence shall not be paroled until he or she has served . . . [a] term of at least seven calendar years.” Moreover, “[i]f two or more life sentences are ordered to run consecutively to each other pursuant to Section 669, an inmate so imprisoned shall not be paroled until he or she has served the term specified in subdivision (a) on each of the life sentences that are ordered to run consecutively.” (§ 3046, subd. (b).) Here, the court sentenced Trujillo to “seven years to life” on count 1 and a consecutive “seven years to life” on count 2, for a total term of “a minimum of fourteen years to life.” The abstract of judgment accordingly states that defendant was sentence to a “[t]otal indeterminate time of 14 years to life.” It is proper “for the trial court to include, as part of a defendant’s sentence, the minimum term of confinement the defendant must serve before becoming eligible for parole.” (People v. Jefferson (1999) 21 Cal.4th 86, 101, fn. 3.) Thus, the sentence imposed for Trujillo’s convictions was proper, and the abstract of judgment is correct.
II. No Remand is Needed as to Ozaeta
Ozaeta originally filed an appellate brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. However, on November 17, 2017, she filed a motion to strike her Wende brief and replace it with a supplemental opening brief, which this court granted. Ozaeta now urges that because her case is not yet final, it must be remanded to allow the trial court to exercise its discretion to strike her firearm enhancements, pursuant to Senate Bill No. 620 (2017-1018 Reg. Sess.). We see no need for remand.
A. Procedural Background as to Ozaeta
The jurors were instructed that if they found Ozaeta guilty of attempted murder in counts 1 and 2, they then had to decide if the People had proved the additional allegation that she personally and intentionally discharged a firearm during the crimes, and if her acts caused great bodily injury. The jurors were also instructed that assault with a firearm (§ 245, subd. (a)(2)) was a lesser crime of attempted murder. The jurors were further instructed that if they found Ozaeta guilty of assault with a firearm, they had to decide if the People had proved that she personally used a firearm during the commission of that crime. The jurors were given forms for all the possible verdicts, one of which stated that, only if they found Ozaeta guilty of attempted murder, could they make a finding of whether she personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). Another possible verdict form stated that, only if the jurors found her guilty of assault with a firearm, could they then make a finding that she personally used a firearm within the meaning of section 12022.5, subdivision (a).
The jurors found Ozaeta guilty of attempted murder in counts 1 and 2, but they used the special allegation form, which stated that she personally used a firearm within the meaning of section 12022.5, subdivision (a). That was the form they were instructed to use only if they found her guilty of assault with a firearm.
The prosecutor brought it to the court’s attention that the jurors returned true findings on the wrong firearm enhancement form, but the court told him not to worry about it. The court later struck the verdicts on those enhancements. The parties subsequently submitted sentencing briefs, and the court held a hearing. The court pointed out that it previously erred in striking the verdicts on the firearm enhancements. The court noted that, under the facts of this case, a conviction of assault with a firearm could lie, and defense counsel agreed. The court stated that the jurors should have listened to the court, but they erred in returning a verdict on the section 12022.5, subdivision (a) enhancement. However, the court declared that the jurors clearly found that Ozaeta used a gun, which hurt two victims. The court then agreed with the prosecutor that it would be unjust to not allow the People to have her sentenced under the enhancement that the jury found true. The court ordered the previously stricken findings on the section 12022.5, subdivision (a) enhancement to be reinstated.
B. Ozaeta is Not Entitled to Remand Pursuant to Senate Bill No. 620
On October 11, 2017, the Governor signed Senate Bill No. 620, which became effective January 1, 2018. As relevant here, Senate Bill No. 620 amended section 12022.5, subdivision (c), to permit the trial court to strike a firearm enhancement, as follows: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”
Assuming the changes in the law apply to Ozaeta’s nonfinal judgment under In re Estrada (1965) 63 Cal.2d 740 (Estrada), we conclude that remand would serve no purpose. In People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), while the appeal was pending before the Court of Appeal, the Supreme Court held that trial courts have discretion to dismiss three strikes convictions in the interest of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Even though the defendant in Gutierrez was sentenced under the three strikes law, the Court of Appeal declined to remand the matter for the trial court to exercise its discretion because the record showed that the sentencing court would not have exercised its discretion to strike any prior conviction allegation. (Gutierrez, at p. 1896.)
In the present case, the record makes clear that the trial court would not have struck the firearm enhancements if it had such discretion. The trial court selected the aggravated term of 10 years based on Ozaeta’s use of a firearm because “the victims in this case were particularly vulnerable,” and because “it was the use of a gun not once, but twice, on two separate victims.” After pronouncing the sentence, the court felt compelled to note for the record that Ozaeta had letters of support written on her behalf. However, the court made the following remarks: “I invite those people who wrote those letters to hear [defendant] on those tapes, to hear the callousness. And the . . . jovial spirit of her and Mr. Trujillo in planning these things and doing these things shows a depraved heart. This was—these people really need to know what she is really like, because she is certainly not the person which is described in these letters of support. That is another reason why the Court is using the aggravated term.” These comments make clear that the court would not have exercised its discretion to strike the firearm enhancements. Moreover, if the court had been at all inclined to minimize Ozaeta’s sentence with respect to the firearm enhancements, it would have imposed the lower term. (See § 12022.5, subd. (a) [prescribing terms of three, four, or 10 years for personal use of a firearm].) Instead, it imposed the upper term with regard to both counts on the very enhancement at issue here. As a result, we conclude that, “[u]nder the circumstances, no purpose would be served in remanding for reconsideration.” (Gutierrez, supra, 48 Cal.App.4th at p. 1896.)
Citing People v. Francis (1969) 71 Cal.2d 66 (Francis), Ozaeta argues that an appellate court cannot speculate as to how the trial court would have used its discretion, and she claims that we should “remand under the reasoning of that decision.” In Francis, the defendant had no prior record of narcotic offenses, but was convicted of possessing marijuana. (Id. at p. 70; Health & Saf. Code, former § 11530.) The court denied probation and sentenced the defendant to state prison for the term prescribed by law, one to 10 years. (Francis, at pp. 70, 75.) While the case was pending on appeal, Health and Safety Code former section 11530 was amended to provide for alternative sentences of imprisonment in the county jail for not more than one year, or in the state prison for one to 10 years where no prior narcotics offenses were shown. (Id. at p. 75.) The Supreme Court applied the reasoning of Estrada, supra, 63 Cal.2d 740 and remanded the defendant’s case “to the trial court to reconsider the matter of probation and sentence.” (Francis, at p. 75.) The People concede, and we agree, that Francis, supra, 71 Cal.2d 66 requires retroactive application of amended section 12022.5, subdivision (c), to all nonfinal judgments. (See ante.)
Ozaeta further argues that this court is bound by the Supreme Court’s authority in Francis, supra, 71 Cal.2d 66, not by the decision of the appellate court in Gutierrez, supra, 48 Cal.App.4th 1894. However, Francis does not appear to contravene Gutierrez. (Gutierrez, at p. 1896 [remand due to ameliorative change in law not required where trial court’s comments at sentencing and sentence itself show trial court would not exercise its discretion to lessen sentence].) Thus, we decline to remand the matter. (Ibid.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:


RAMIREZ
P. J.


CODRINGTON
J.